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THE TRUSTEE ACT, 1893.
THE TEUSTEE ACT, 1893,
AND OTHER
EECEIT STATUTES EELATING TO TEUSTEES.
WITH NOTES.
•F; G. CHAMPEENOWNE5 B.A.,
OF LINCOLN'S INN, BAEEISTER-AT-LAW,
AND
HENKY JOHNSTON,
OF LINCOLN'S INN, BABRISTER-AT-LAW.
'^
^
^
LONDON:
WILLIAM CLOWES AND SONS, LIMITED,
7, FLEET STREET.
-1904.
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PRINTED BT
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^ LONDON AND BECCLES.
PREFACE.
It is to be regretted that the Trustee Act, 1893,
should be so framed that, in construing its pro-
visions, only those already well acquainted with its
contents, and with the general law of trusts, can
safely dispense with the assistance of elaborate
annotation.
Many of the difficulties discussed in the present
volume arose under the earlier Acts replaced by
the Act of 1893, and have been the subject of much
judicial comment. For the existence of others the
present Act is alone re^onsible.
Of difficulties not yet covered by authority the
following are instances : the use of the word
"trustee" (pp. 18, 50, and 77), and of the expres-
sions " leased in perpetuity " (p. 24) and " muni-
cipal borough " (p. 26) ; the tangled enactments as
to investments in Isle of Man and Local Loans
Stocks (pp. 31 and 39) ; and the questions how far
section 22 affects the old doctrines as to survivorship
of powers (pp. 87, 88) and how far a beneficiary's
interest may be impounded under section 45 (p. 154).
In the notes to section 16 (p. 72) recent legis-
lation and decisions on the capacity of a married
woman trustee to convey land are discussed. It is
to be hoped that during the present Session a Bill,
already prepared, may become law, and render all
such discussion obsolete.
vi Preface.
Some gisneral rules for tlie guidance of trustees
in selecting mortgage securities will <he found on
pp. 20 and 21. The authorities upon which those
rules are based are discussed in Appendix A, pp.
225-234
The jurisdiction to make vesting orders became
of diminished importance on the passing of section
30 of the Conveyancing and Law of Property Act,
1881, but is still far from obsolete. Great pains
have been taken to classify the decisions dealing
with this subject.
Included in the volume are the Trustee Act,
1888, the Amending Act of 1894, the Judicial
Truitees Act, 1896, the Colonial Stock Act, 1900,
the Trustee Act Eules, 1893 (0. 54a), and the
Judicial Trustee Rules.
The authors originally intended to add an
appendix containing a complete list of the securities
authorised as investments by section 1 of the
Trustee Act, 1893. They found, however, that
besides entailing much additional labour, the adop-
tion of such a course would unduly increase the
size of the volume. They were glad, therefore,
to avail themselves of the offer of their friend, Mr.
Herbert Ellissen, of the Inner Temple and of the
Stock Exchange, to publish such a list, uniform
with and supplemental to the present work. Mr.
ElUssen's supplemental volume is now in the press,
and numerous references to it will be found in the
present volume.
For convenience of reference, the text of the
Trustee Act, 1893, is printed without notes in
Appendix B.
Lincoln's Inn,
May, 1904.
CONTENTS.
Table of Cases
Table op Statutes
Ikteoduotion
FAOE
xxsiii
. 1-3
TKUSTEE ACT, 1888.
(51 & 52 Vict. c. 59.)
1. Short title, extent, and definition ...
8. Statutes of limitation may be pleaded by trustees
4
5-11
TRUSTEE ACT, 1893.
(56 & 57 Vict. c. 53.)
Part I.
mVESTAIENTS.
1. Authorised investments ... ... ... ... 12-30
2. Purchase at a premium of redeemable stocks ... 30-32
3. Discretion of trustees ... ... ... ... 32-34
4. Application of preceding sections ... ... ... ... 34
5. Enlargement of express powers of investment ... 34-39
6. Power to invest, notwithstanding drainage charges ... 39, 40
7. Tnistees not to convert inscribed stock into certificates to
bearer ... ... ... ... ... 40, 41
8. Loans and investments by trustees not chargeable as breaches
of trust ... ... ... ... ... 41-46
9. Liability for loss by reason of improper investments ... 46-48
Paet IL
vaeious poweks and duties of trustees.
Appointment of New Trustees.
10. Power of appointing new trustees ...
11. Retirement of trustee ..^
12. Vesting of trust property in new or continuing trustees
48-61
61-63
63-67
viii Contents.
Purchase and Sale.
SECT. PAGE
13. Power of trustee for sale to sell by aucfion, etc. ... 67-69
14. Power to sell subject to depreciatory conditions ... 69, 70
15. Power to sell or buy under Vendor and Purchaser Act 70-72
16. Married woman as bare trastee may convey ... 72-74
Various Powers and Liabilities.
17. Power to authorise receipt of money by banker or solicitor 75-77
18. Power to insure buildings ... ... ... _ 78, 79
19. Power of trustee of renewable leaseholds to renew and raise
money for the purpose ... ... ... 79-81
20. Power of trustee to give receipts ... ... ... 81-83
21. Power for executors and trustees to compound, etc. ... 83-85
22. Survivorship of powers of two or more trustees ... 85-88
23. Exoneration of trustees in respect of certain powers of
attorney ... ... 89-91
24. Implied indemnity of trustees ... ... ... 91-95
Pakt hi.
POWERS OF THE COURT.
Appointment of New Trustees and Vesting Orders.
25. Power of Court to appoint new trustees ... ... 95-103
26. Vesting ordei^ as to land ... ... ... 103-111
27. Orders as to contingent rights of unborn persons ... Ill, 112
28. Vesting order in place of conveyance by infant mortgagee 112, 113
29. Vesting order in place of conveyance by heir, or devisee of
heir, etc., or personal representative of mortgagee... 113-117
30. Vesting order consequential on judgment for sale or mortgage
offend 117-123
31. Vesting order consequential on judgment for specific per-
formance, etc ... ... ... 123-125
32. Effect of vesting order ... ... ... ... 125-127
33. Power to appoint person to convey ... ... 127,128
34. Effect of vesting order as to copyholds ... ... 128,129
35. Vesting orders as to stock and choses in action ... 129-137
36. Persons entitled to apply for orders ... ... 137,138
37. Powers of new trustee appointed by Court ... ... 138-140
38. Power to charge costs on trust estate ... ... 140,141
39. Trustees of charities ... ... ... ... 141,142
40. Orders made upon certain allegations to be conclusive
evidence ... ... ... ... ... 142, 143
41. Application of vesting order to land out of England ... 143, 144
Payment into Court hy Trustees.
42. Payment into Com-t by trustees ... ... ... 144-148
43. Power to give judgment in absence of a trustee ... 148 149
44. Power to sanction sale of land or minerals separately 149-151
45. Power to make beneficiary indemnify m breach of trust 151-155
46. Jurisdiction of Palatine and County Courts ... .„ 155
Contents. is
Pakt IV.
^ MISCELLANEOUS AND SUPPLEMENTAL.
SECT. PAGE
47. Applicatioi^to trustees under Settled Land Acts of provisions as
to appointment of trustees ... ... ... 156-159
48. Trust estates not afiFected by trustee becoming a convict 159-161
49. Indemnity ... ... ... ... ... ... 161
50. Definitions ... ... ... ... ... 161-170
51. Repeal ... , 170, 171
52. Extent of Act... ... ... ... ... ... 171
53. Short title ..'. ... ... ... ...... ... 172
54. Commencement ... ... ... ... ... 172
Schedule ... ... ... ... ... 172-174
TRUSTEE ACT, 1893, AMENDMENT ACT, 1894.
(57 Vict. c. 10.)
1. Amendment of section 30 ... ... ... ... 176
2. Extension to Ireland of section 41 ... ... ... 175
3. Amendment of section 44 ... ... ... ... 175'
4. Liabilitv of trustee in case of change of character of invest-
ment 176-179
5. Short title 179
JUDICIAL TRUSTEES ACT, 1896.
(59 & 60 Vict. c. 35.)
Introduction ... ... ... . ••• * ••• ■•• 180
1. Power of Court on application to appomt judicial trustee 1«1-1«4
2. What Courts to exercise jurisdiction ... ... ... 184
3 Jurisdiction of Court to relieve from personal liability for breach
of trust iqHoI
4. Power to make rules ... ... ... ••• .QQion
5. Definitions • 18^. 1^"
6. Short title, extent, and commencement of Act ... ... 190=
COLONIAL STOCK ACT, 1900.
(63 & 64 Vict. c. 62.)
2. Power for trustees to invest in certain colonial stocks 191, 192
4. Short title
192
X Contents.
RULES OF THE SUPREME COURT (TRUSTEE ACT), 1893.
PAGE
Order LIV6 193-204
JUDICIAL TRUSTEE RULES.
Judicial Tbustee Rules, 1897
Additional Rule of Apeil 27, 1899
Additional Rule of April 27, 1900
205-222
222, 223
... 223
APPENDIX A.
Investment on Real Secukitt
225-234
APPENDIX B.
Trustee Act, 1893, without Notes
iib-ihl
Index
... 259
TABLE OF CASES.
A.
fAOB
Abdallah v. Kickards, 4 Times L.E. 622 ; 32 Sol. J. 525... ... 85
Adams' Trusts, re, 12 CD. 634 ; 48 L.J. Ch. 613 ; 41 L.T. 667 53, 98,
140
Adams, re (1887) W.N. 175 195
Ailesbury, Marquis of, re, and Lord Iveagh (1893) 2 Ch. 345 : 62
L.J. Ch. 713 ; 69 L.T. 101 ; 41 W.E. 644 158
Ainslie v. Harcourt, 28 Beav. 313 ; 30 L.J. Ch. 686 ... ... 81
Allen, re (1887) W.N. 132 140
Allen V. Noi-ris, re Nonis, 27 CD. 333 ; 32 W.E. 955 ; 53 L.J. Ch.
913; 51 L.T. 593 55,57
AUen V. Woods, 68 L.T. 143 ; 4 E. 249 232
Angelo, re, 5 De. G. & Sm. 278 ; 16 Jur. 831 ... ... 119,120,134
Anon, 1 Jur. (N.S.) 974 ... ... ... ... ... 199
Arrowsmith, re, 6 W.E. 642 ; 4 Jur. (N.S.) 1123 ... 97, 105, 106
Astbury v. Astbury (1898) 2 Ch. Ill ; 67 L.J. Ch. 471 ; 78 L.T.
494 ; 46 W.E. 536 ... ... ... ... j,. 84
Aston, re, 23 CD. 217 ; 31 W.E. 801 ; 48 L.Tfl95 100
Aston's Trusts, re, 25 L.E. Ir. 96 ... ... ... ... 101
Atkinson V. Lord, re Taylor, 81 L.T. 812 ... ... ... 10
Attorney-General v. Great Eastern Eailway Co., 11 CD. 449 ; 27
W.E. 759; 40L.T.265 35
Attorney-General v. Sittingboume Eailway, 1 Eq. 636; 35 Beav.
268 ; 35 L.J. Ch. 318 ; 14 L.T. 92 ; 14 W.E. 414 47
Avery V. Griffin, 6 Eq. 606 ... ... ... ... ... 74
Ayles V. Cox, 17 Beav. 584 ... 128, 138, 141
B.
Bahin V. Hughes, 31 CD. 390; 55 L.J. Ch. 472; 54 L.T. 188; 34
W.E. 311 155
BaUey v. Gould, 4 Y. & C 221 ; 9 L.J. (N.S.) Ex. Bq. 43 ; 54 E.E.
479 78
Bank of England v. Vagliano (1891) A.C 144; 60 L.J.Q.B. 145;
64 L.T. 353; 39 W.E. 657 1
Barber, re, 58 L.T. 303 ... ... ... ... ... 108
Barber, re, 39 CD. 187 ; 58 L.T. 756 ; 57 L.J. Ch. 756 ... 98, 106
Baring, re, Jeune v. Baring (1893) 1 Ch. 61 ; 62 L.J. Ch. 50 ; 67
L.T. 702 ; 41 W.E. 87 78-81
Barker, re, 1 CD. 43 ; 45 L.J. Ch. 52 ; 24 W.E. 264 ... 53, 98
Barker v. Ivimey, re Turner. See re Turner.
Barnett, re (1889) W.N. 216 133
xii Table of Cases.
PAGE '
Barrow, Snmmere v., In re Walker (1901) 1 Ch. 259 ; 70 L.J. Ch.
229 ; 49 W.E. 167 62
Basnett v. Moxon, 20 Eq. 182 : 44 L.J. Ch. 557 ; 23 W.E. 945 112, 122,
124,125
Batcheldor v. Yates, re Yates, 38 CD. 112 ; 36 W.E. 563 ; 57 L.J.
Ch. 697; 59L.T.47 68,150
Bateman u. Da-vis, 3 Madd. 98 ; 18 E.E. 200 ... ... ... 33
Bangham, exparfe, 16 Jur. 325 ... ... ... ... 200
Baumgarten, re, 82 L.T. 711 ... ... ... ... 147
Baxter, re, 2 Sm. & Giff. App. 5 ... ... ... 134,195
Beaty v. Curzon, 7 Eq. 194; 38 L.J. Ch. 161 ; 20 L.T. 61 ; 17 W.E.
132 148
Beaufort, re (1898) W.N. 148 ; 48 S.J. 12 107, 121
Beamnont's Mortgage Trusts, 12 Eq. 86 ; 40 L.J. Ch. 400 ; 19 W.E.
767 150,197
Beckett v. Sutton, 19 CD. 646 ; 51 LJ. Ch. 432 ; 46 L.T. 431 ; 30
W.E. 490 ... ... ... ... ... 122 124 126
Beddoe", re, Down'es v. Cottain (1893) 1 Ch. 547 ; 63 L.j! Ch. 233; '
68 L.T. 595; 41 W.B. 177 94,187
BeU i;. Turner (1874) W.N. 113 48
Bellamy and the MetropoUtan Board of Works, 24 CD. 387 ; 31 W.E.
900 ; 52 L.J. Ch. 870 ; 48 L.T. 801 76
Benjamin, re (1902) 1 Ch. 723 ; 71 L.J. Ch. 319 ; 86 L.T. 387 109, 135
Berkley v. Berkley, re Berkley, 9 Ch. 720 ; 43 L.J. Ch. 703 ; 31 L.T.
365 ... .. ... .. 99
BetheU ?;! Abraham," re BetheU, 17 Eq. 24 ; 43 L."j. Ch. 180 ; 29 L.T.
715 ; 22 W.E. 179 33
Bethlem Hospital, re, 19 Eq. 458 ... ... ... ... 2
Betts, re, McLean v. Betts, 41 S.J. 209 : ... ... 96, 98
Betty, re, Betty v. A.-G. (1899) 1 Ch. 821 : 68 L.J. Ch.435 ; 80 L.T.
675 79
BignoWPs Settlement, re, 7 Ch. 223 ; 20 W.E. 345 ; 41 L. J. Ch. 235 ;
26L.T. 171 98,203
Billing V. Brogden, re Brogden (1888) W.N. 238 ... 57, 100
Bingham v. Allport, 1 N. & Manning, 398 ; 2 L.J.K.B. 86 ... 76
BirchU Cropper, 2 De G. & S. 255 ... ... ... ... 100
Birchall, re, Birchall v. Ashton, 40 CD. 436 ; 60 L.T. 369 ; 37 W.E.
387 53
Birkett, re, 9 CD. 576 ; 27 W.E. 164 ; 47 L.J. Ch. 846 ; 39 L.T.
418 147
Birks V. Micklethwait, 33 Beav. 409 ... ... ... ... 155
Blaine, re (1886) W.N. 203... ... ... ... ... 134
Blake, re (1887) W.N. 1 73 ; 22 L.J. (Notes), 125 54
Blake, Hawle^i;., re Houghton (1904) 1 Ch. 622 ; 73 L.J. Ch. 317 85
Blanchard, refS De G.F. & J. 131 ; 30 L.J. Ch. 516 ; 4 L.T. 426 ;
9 W.E. 647 96,183,204
Blue V. Marshall, 3 P. Wms. 381 ... ... ... ... 84
Blyth V. Fladgate (1891) 1 Ch. 337 : 39 W.E. 422 ; 60 L.J. Ch. 66 ;
63 L.T. 546 43
Boden's Trust, re, 9 Hare, 820 ; 1 De G.M. & G. 57 ... ... 116
Bolton V. Curre (1895) 1 Ch. 544; 64 LJ. Ch. 164 ; 43 W.E. 521 ;
71 L.T. 752 152,153,155
Bom V. Turner (1900) 2 Ch. 211; 69 L.J. Ch. 593; 83 L.T. 148;
48 W.E. 697 68, 151
Bourke, re, 2 D.G.J. & S. 426 ... ... ... 135,138
Boustead v. Cooper, re Van Straubenzee (1901) 2 Ch. 779 ; 70 L.J.
Ch. 825 ; 85 L.T. 541 ... 176
Bowden, In re, 45 Ch. D. 444; 59 L.J. Ch. 815; 39 W.E. 219 ... 8, 9
Table of Cases. xiii
PAGE
Bowra v. Wright, 4 De G. & Sm. 265; 20 L.J. Ch. 216; 15 Jar.
981 124
Boyce, re, 4 De G.J. & S. 205; 12 W.E. 359 ; 33 L.J. Ch. 390;
9 L.T. 670; 10 Jur. (N.S.) 138 98, 105
Boycott, re, 5 W.E. 15 97, 100, 102
Boyd's Settled Estates, re, 14 CD. 626; 49 L.J. Ch. 808; 43 L.T.
348 228,229
Braokenbury's Trusts, re, 10 Bq. 45; 39 L.J. Ch. 635 ; 22 L.T. 469 58,
97, 100, 140
Brader «. Kerby (1872) W.N. 174 110
Bradford v. Brownjohn, 3 Ch. 711 ; 16 W.R. 1178 ; 38 L.J. Ch. 10;
19L.T. 248 81
Bradley w. Munton, 16 Beav. 294 ... ... ... ... 141
Brice V. Stokes, 11 Ves. 319; 8 E.E. 164 ... ... 92, 93
Brier, re. Brier v. Evison, 26 CD. 238; 51 L.T. 133 ... ... 92
Brighton and Dyke RaUway Co., re, 44 Ch. D. 28 ; 59 L.J. Ch. 329 ;
62L.T. 353; 38W.E.321 22
Bristow V. Booth, L.R. 5 CP. 80; 39 L.J.C.P. 47 ; 21 L.T. 427;
18 W.E. 138' 126-129
Brogden, re, Billing V. Brogden (1888) W.N. 238 ... 57,100
Brook V. Brook, 1 Beav. 531 ... ... ... ... 99
Brooke and Fremlin, re (1898) 1 Ch. 647 ; 67 L.J. Ch. 272 ; 78 L.T.
416; 46 W.R. 442 73,74,168,170
Brown v. Burdett, 40 CD. 244; 53 L.J. Ch. 56; 48 L.T. 753; 31
W.E. 854 51,102
Bryant, re (1868) W.N. 123 196
Buckley v. Howell, 29 Beav. 546; 9 W.E. 544; 30 L.J. Ch. 525;
4L.T. 172; 7 Jur. (N.S.) 536 150
Buckley's Trusts, re, 17 Beav. 110 ; 22 L.J. Ch. 934; 17 Jur. 478 146
Budge V. Gummow, 7 Ch. 719 ; 41 L.J. Ch. 520 ; 26 L.T. 683 43, 48,
227
Budgett, re. Cooper v. Adams (1894) 2 Ch. 557; 63 L.J. Ch. 847;
71 L.T. 72 ; 42 W.E. 551 1
Bulkeley v. Eari of Eghnton, 1 Jur. (N.S.) 994 .. . ... ... 100
Bulkeley v. Stephens (1896) 2 Ch. 241 ; 65 L.J. Ch. 597 ; 74 L.T.
409 ; 44 W.R. 490 33
Burgess, re (1877) W.N. 87 99
Burrell v. MaxweU, 25 L.T. (N.S.) 655 149
Burt, re, 9 Hare 289; 22 L.J.Ch. 153 ... ... ... 121
C.
C. M. G. (1898) 2 Ch. 324; 67 L.J. Ch. 468; 78 L.T. 669 ... 135
Cafe V. Bent, 3 Hare 245 ... ... ... ... ... 33
Cafe«. Bent, 5Hare37; 9 Jur. 653 ... ... ... ... 63
Calvin's Case, 7 Sep. 21 ... ... ... ... ... 21
CampbeU, re, 31 Beav. 176 99
Cane's Trusts, re (1895) 1 Ir. Eep. 172 ... ... ... 132
Capital and Counties Bank, Ltd. v. Ehodes (1903) 1 Ch. 631 ; 72 L.J.
Ch. 336 ; 88 L.T. 255 ; 51 W.E. 470 Ill, 231
Carpenter, re, Kay 418 ... ... ... ... 107, 120
Carter v. Sebright, 26 Beav. 374; 28 L.J. Ch. 411 ; 5 Jur. (N.S.)
259' 7 W.E. 225 ... ... ... ... . . 95
Caswell V. Sheen,' 69 L.T. (N.S.) 854;"(1893) W.N. 187"" 105, 124, 125,
128
Cecil V. Langdon, 28 Ch. D. 1 ; 33 W.R. 1 ; 54 L.J. Ch. 313 ; 51
L.T. 618 61
xiv Table op Cases.
PAGE
Chapman v. Browne (1902) 1 Ch. 785 ; 71 LJ. Ch. 465 ; 86 L.T.
744 171,186,190,227,230
Chapman, re (1896) 2 Ch. 763 ; 45 W.R. 67 ; 65 L.J. Ch. 892 ; 75
L.T.196 ... ... 177
Chapman, re (1896) 1 Ch. 323 6,178
Charles v. Jones, 35 CD. 544 ; 35 W.E. 645 ; 56 L.J. Ch. 745 ; 55
L.T.331 169
CheU, re, 49L.T.(N.S.)196; 31 W.R. 898 105
ChenneiC re, Jones v. ChenneU, 8 CD. 492 ; 47 L.J. Ch. 583 ; 38
L.T.494; 26W.B. 595 228
Chetwynd, re (1902) 1 Ch. 692 ; 71 L.J. Ch. 352; 86 L.T. 216; 50
W.B.361 52,63,100
Child «. Chfld, 20 Beav. 50 33
Chillingworth v. Chambers (1896) 1 Ch. 685 ; 44 W.E. 388; 65 LJ.
Ch. 343 ; 74 L.T. 34 152,154,155
Chinery, exparte, 12 Q.B.D. 342; 53 L.J. Ch. 662; 50 L.T. 342;
32 W.R. 469 ... 122, 149
Chishobn, re, LeesQ and Reversionary Society v. Knight, 43 Sol. J.
43 ... 182
Christie v. Ovington, 1 CD. 279 ; 24 W.R. 204 73
Christmas v. Jones, In re Jones (1897) 2 Ch. 190 ; 66 L.J. Ch. 439 ;
76L.T.454; 45W.R. 598 94
Clark, Eastwood «., In re Gadd, 23 CD. 134 ; 31 W.R. 417 ; 52 L.J.
Ch. 396 ; 48 L.T. 395 33,55
Clark, re, McKecknie v. Clark (1904) 1 Ch. 294 ; 73 L.J. Ch. 188 144
aarke, re, 18 CD. 160; 50 LJ. Ch. 733; 44 L.T. 736; 29 W.R.
730 33
Clarkson v. Robinson (1900) 2 Ch. 722 ; 69 L.J. Ch. 859 ; 83 L.T.
164 ; 48 W.R. 698 95
Clay V. Rnfford, 5 De G. & Sm. 768 ... ... ... ... 68
Clay and TetJey, re, 16 CD. 3 ; 43 L.T. 402 ; 29 W.R. 5 ... 84
Claydon v. Green, L.R. 3 C.P. 511; 16 W.R. 1126; 37 LJ.CP.
226 35
Clews V. Grindey, re Grindey (1898) 2 Ch. 593 ; 47 W.R. 53 ; 67 L.J.
Ch. 624; 79L.T. 105 178,186,187
Clifford's, re. Lord de, Estate (1900) 2 CL 707 ; 69 L.J. Ch. 828; 83
L.T. 160 185-187
Clinton, re, Jackson v. Claney (1882) W.N. 176 ... ... 143
Chssold, re, 10 L.T. 642 ... ... ... ... ... 99
Clowes V. ffilliard, 4 CD. 413 ; 25 W.R. 224 ; 46 L J. Ch. 271 ... 164
ClnttOD, exparie, 17 Jur. 988 ... ... ... ... 99
Coates and Parsons, re, 34 CD. 370 ; 35 W.R. 375 ; 56 L J. Ch. 242 ;
56 L.T. 16 51, 52, 55, 60, 61, 142
Cocks ». Chapman, re Chapman (1896) 1 Ch. 323 ... ... 178
Cohen's Executors and London Comity Council, re (1902) 1 Ch. 187 ;
71L.J. Ch. 164; 86L.T. 73; 50W.E. 117 55
Coning, re, 32 CD. 333; 55 LJ. Ch. 486 ; 54 L.T. 809 ; 34 W.R.
464...* 120
Collingwood's Trusts, re, 6 W.R. 536 ... ... ... 121
Collinson v. Collinson, 3 De G.M. & G. 409 ... ... ... 142
Colyer, In re, 50 L J. (N.S.) Ch. 79 ; 43 L.T. 454 100
Combs, re, 51 L.T. 45 96, 97
Conybeare, re, 1 W.R 458 ... ... ... ... ... 99
Cook's Mortgage, re (1895) 1 Ch. 700; 64 LJ. Ch. 624; 72 L.T.
388 ; 43 W.E. 461 109,116,117
Coombes v. Brookes, 12 Eq. 61 ; 41 L.J. Ch. 114; 25 L.T. 198; 19
W.R. 1002 98
Cooper, re (1873) W.N. 87 18
Table op Cases. xv
~ PAGE
Cooper, re, 9 W.E. 531 ... ... ... ... ... 196
Cooper and Harlech, re, 4 CD. 802 ; 25 W.E. 301 ; 46 L, J. Ch. 133 :
35L.T.890 68
Cooper w. Macdonald, 35 Beav. 504 ; 14 W.E. 755 ... ... 139
Cooper V. Todd, re Grange (1881) W.N. 50 ; 44 L.T. 469 ; 29 W.B.
502 58, 101
Cope V. Doherty, 4 K. & J. 367; 2 De G. & J. 614; 27 L.J. Ch.
600; 4Jur.(N.S.)699; 6W.E. 695 2
Corbishley's Trusts, re, 14 CD. 846; 49 L.J. Ch. 266; 28 W.B.
536 109,135
Cordova, de v. Cordova, de, 4 A.C 692 ; 28 W.E. 105 ; 41 L.T.
43 85
Cornish, re (1896) 1 Q.B. 99 ; 44 W.E. 161 ; 65 L.J.Q.B. 106 ; 73
L.T. 602 6
Cottam, Downes v., re Beddoe (1893) 1 Ch. 547 ; 62 L..J. Ch. 233 ;
68L.T. 595; 41 W.E. 177 94,187
Cotterffl's Trusts, re (1869) W.N. 183 68,101
Courtenay v. Courtenay, 3 J. & Lat. 519 ; 9 Ir. Bq. E. 329 52, 63
Cowper V. Harmer, 57 L.J. Ch. 460 ; 57 L.T. 714 ... 124, 127
Crabtree, re, 14 W.E. 497 ... ... ... ... ... 141
Cradock v. Witham (1895) W.N. 75 ; 99 L.T. Newsp. 9 ... ... 54
Crawford v. Forshaw (1891) 2 Ch. 261; 60 L.J. Ch. 683; 65 L.T.
32; 39 W.E. 484 88
Crook 1). Ligoldsby, 2 Ir. Eq. Eep. 375 ... ... ... 53
Crowe's Mortgage, re, 13 Eq. 26 ; 41 L.J. Ch. 32 110, 120, 170, 195,
196
Crowe's Trust, re, 14 CD. 610 ; 42 L.T. 822 ; 28 W.E. 885 101, 131
Cuming, re, 5 Ch. 72 ; 21 L.T. 739 ; 18 W.E. 157 120
Cunard's Trusts, re, 27 W.E. 52 ; 48 L.J. Ch. 192 ... 58, 100, 101
CunniQgham and Frayling, re (1891) 2 Ch. 567 ; 60 L.J. Ch. 591 ;
64 L.T. 558 ; 39 W.E. 469 56,73
Cunningham and Wilson, re (1877) W.N. 258 ... ... ... 59
Currie, re, 10 CD. 93 ; 40 L.T. 110 ; 27 W.E. 369 99
Cust V. Middleton, 9 W.E. 242; 30 L.J. Ch. 260; 3 L.T. 718;
7 Jur. (N.S.) 151 121
D.
D'Adhemari;. Bertrand, 35Beav. 19... ... ... ... 100
Dalgleish's Settlement, re, 4 CD. 143 ; 35 L.T. 829 ; 25 W.E. 122 101,
106, 131
Dance v. Goldingham, 8 Ch. 902 ; 21 W.E. 761 ; 42 L.J. Ch. 777 ;
29L.T. 166 70
Danson, re. See re Dawson's Trusts.
Davenport's Charity, re, 4 De G.M. & G. 839 ... ... ... 142
Davidson v. Myrtle, re Smith (1896) 2 Ch. 590; 45 W.B. 29; 65
L.J. Ch. 761 ; 74 L.T. 810 27
Davies eaparte, 16 Jur. 882 ... ... ... 140, 141
Davies, re (1898) 2 Ch. 142 ; 67 L.J. Ch. 507 ; 79 L.T. 344 ... 8
Davies, re, 3 M. & G. 278 98,99,106
Davies, re (1889) W.N. 215 195,196
Davies V. Hodgson, 32 Ch. D. 226 ... ... ... ... 101
Davis u. Angel, 31 Beav. 223 ... ... ... ... 138
Davis, re (1891) 3 Ch. 119 ; 39 W.E. 627 ; 65 L.T. 128 10
Davis V. Chanter, 4 Jur. (N.S.) 272; 6 W.E. 416; 31 L.T. (O.S.)
70 97
Davis's Trusts, re, 12 Eq. 214 ; 40 L.J. Ch. 566 ; 19 W.E. 944 51, 97, 102
xvi Table of Cases. ^
PAGB
Dawson 1). Clarke, 18 Ves. 247 ; 11 E.R. 188 92'
Dawson's Trusts, re (1899) W.N. 134 96, 98
Day V. Woolwich Bmlding Society, 40 CD. 491 ; 37 W.B. 461 ; 58
L.J. Ch. 280; 60L.T. 752 76,77
Dayrell v. Hoare, 12 A. & B. 356 ; 4 P. & D. 114 ; 9 L.J.Q.B. 299 68
De Crespigny D. Kitson, 12 Sim. 163 ... ... ... ... 149
De ManneviUe v. Crompton, 1 V. & B. 354 ; 12 B.R. 233 ... 33 .
Dennis's Trusts, 12 W.K. 575; 10 L.T. 688; 3 N.E. 636 ... 58
Dent V. de Pothonier, re de Pothonier (1900) 2 Ch. 529 ; 69 L J. Ch.
773; 83L.T. 220 41
Derham u. Kieman, IR. 5 Eq. 217 ... ... ... ... HO
Devoyw. Devoy, 3Sm. &Giff. 403; 3Jnr. (N.S.)79 133
Dewhirst's Trusts, re, 33 CD. 416 ; 35 W.R. 147 ; 55 L.J. Ch. 842 ;
55 L.T. 427 98,101,106,131
Dicconson v. Talbot, 6 Ch. 32 ; 24 L.T. 49 ; 19 W.R. 138 ... 33
Dick, re, Lopes v. Hume-Dick (1891) 1 Ch. 423; 61 L.J. Ch. 423;
66 L.T. 425 ; 40 W.R. 593 18, 30, 33, 34
Dickinson, re, 1 Jur. (N.S.) 724 97, 100
Dickinson, re (1902) W.N. 104 99
Dickson, re (1872) W.N. 223 ; 27 L.T. 671 ; 21 W.R. 220 ... 132
Dobson V. Land, 8 Hare, 216 ; 19 L.J. Ch. 484 ; 14 Jur. 288 ... 78
Docwra, re, Docwra v. Faith, 29 CD. 693; 33 W.R. 574; 54 L.J.
Ch. 1121 ; 53 L.T. 288 73
Dodkm V. Brunt, 6 Eq. 580 97, 102
Dodson «. Powell, 18 L.J. Ch. 237 53,65
Douglas V. Bolam (1900) 2 Ch. 749 ; 70 L.J. Ch. 1 ; 83 L.T. 448 ;
49 W.R. 163 184
Dovey v. Cory (1901) A.C. 477 ; 70 L.J. Ch. 753 ; 85 L.T. 257 ; 50
W.B. 65 6
Downes v. Cottam, re Beddoe (1893) 1 Ch. 547 ; 62 L.J. Ch. 233 ;
68L.T. 595; 41 W.R. 177 94,187
Doyle «. Blake, 2 Sch. & Lef. 239 ... ... ... ... 92
Draper, re, 2 W.R. 440 ... ... ... ... ... 204
Drosier w. Brereton, 15 Beav. 221 ... ... ... ... 230
Druitt, re (1903) 1 Ch. 446 ; 72 L.J. Ch. 441 ; 88 L.T. 483 ... 26
Dugmore «. Suffield (1896) W.N. 50 98,101,108
Dunn V. Flood, 28 CD. 586 ; 33 W.R. 315 ; 54 L.J. Ch. 370 ; 52
L.T. 699 70
E.
East, re, re Bellwood, 8 Ch. 735 ; 42 L.J. Ch. 480 195
Eastern Counties Railway Co. v. Hawkes, 5 H.L.C 331 ; 24 L.J. Ch.
601;3W.R. 609 45
Eastick v. Smith, re Smith (1904) 1 Ch. 139; 52 W.R. 104; 90
L.T. 604 ; 73 L.J. Ch. 74 87,88
Eastwood V. Clark, re Gadd, 23 CD. 134 ; 31 W.R. 417 ; 52 L.J. Ch.
396; 48 L.T. 395 33,55
Eaton V. Daines (1894) W.N. 32 ; 70 L.T. 761 51, 102
Ecclesiastical Commissioners v. Pinney (1900) 2 Ch. 736 ; 83 L.T.
384; 49 W.R. 82 94
Edwards, re, 10 CD. 605 ... ... ... ... ... 105
Eland v. Medland, re Medland, 41 CD. 476; 37 W.R. 753 ; 58 L.J.
Ch. 572 ; 60 L.T. 781 177
Ellis, re, 24 Beav. 426 132, 134, 135, 137
Table or Cases. xvii
FAGZ
Ellis V. Eden, 23 Beav. 543 ; 26 L.J. Ch. 533 ; 3 Jur. (N.S.) 950 ... 19
Ellison, j-e, 3 Jut. (N.S.) 62... ... ... ... ... 100
Elve V. Boyton (1891) 1 Ch. 510 ; 63 L.J. Ch. 383 ; 64 L.T. 482 ... 27
Emmett v. Clark, 3 Giff. 32; 30 L.J. Ch. 472 ; 7 Jur. (N.S.) 404;
4 L.T. 319 ; 9 W.E. 515 59
Evans v. Benyon, 87 CD. 329 ; 58 L.T. 700 ... ... ... 155
Evans, Skeats v., In re Skeats's Settlement, 42 CD. 522 ; 58 L.J. Ch.
656; 61L.T. 500; 37W.K. 778 56
Ewing V. Orr-Ewing, 9 A.C 34 ; 53 L.J. Ch. 435 ; 50 L.T. 401 ;
32W.R. 573 171
Eyre, re. Eyre v. Eyre (1883) W.N. 153 ; 49 L.T. 259 62
Faber v. Montagu, re Montagu (1896) 1 Ch. 549 ; 65 L.J. Ch. 372 ;
74L.T. 346; 44W.E. 583 124,126,128
Fagg, re, 19 L.J. Ch. 175 59
Falkner v. Equitable Eeversionary Society, 4 Drew. 352 ; 28 L.J. Ch.
132 ; 4 Jur. (N.S.) 1214 ; 7 W.B. 73 69
Famham, re (No. 2) (1896) 1 Ch. 836 ; 65 L.J. Ch. 456 ; 74 L.T.
214 ; 44 W.E. 465 105
Farrar v. Barraclough, 2 Sm. & G. 231 ; 2 W.E. 244 231
Fawsitt, re, Galland v. Burton, 30 CD. 231 ; 55 L.J. Ch. 568 ; 53
L.T. 271 ; 34 W E. 26 149
Fellows, re, 2 Jur. (N.S.) 62 ... ... ... ... 141
Fenwick v. Schmalz, L.E. 3 CP. 313 ; 37 L.J.C.P. 78 ; 18 L.T. 27 ;
16 W.E. 481... ... ... ... ... ... 37
Field V. Field (1894) 1 Ch. 425 ; 42 W.E. 346 ; 63 L.J. Ch. 233;
69L.T. 826 ... 41
Finch V. Boning, 4 C.P.D. 143 ; 40 L.T. 484 ; 27 W.E. 872 ... 76
Findlay, re, 32 CD. 221, 641 ; 55 L.J. Ch. 395 ... 132, 133
Fish, re, Bennett v. Bennett (1893) 2 Ch. 413; 62 L.J. Ch. 977;
69 L T 233 . ... 95
Fitzherbert's Trustsj re (1898) W.N. 58 ... ... 98, 101, 108
Flamank, re. Wood v. Cock, 40 CD. 461 ; 58 L.J. Ch. 518 ; 60
L.T. 376 : 6
Flower and Metropolitan Board of Works, re, 27 CD. 592 ; 32 W.E.
1011; 53 L.J. Ch. 955; 51 L.T. 257 77
Forest of Dean Coal Co., 10 CD. 450 ; 40 L.T. 287 ; 27 W.E. 594 6
Forshaw v. Higginson, 20 B. 485 ; 8 D.M. & G. 827 ; 26 L.J. Ch.
342 ; 3 Jur. (N.S.) 476 ; 5 W.E. 424 52, 63, 84
Foster, re, 55 L.T. (N.S.) 479 98
Foster v. Abraham, 17 Eq. 351 ; 22 W.E. 386; 43 L.J. Ch. 199 57, 99
Foster u. Parker, 8 CD. 147 ... ... ... ... 124
Fowler, re (1886) W.N. 183 100
Franklyn, re (1888) W.N. 217 ; 23 L.J. (Notes) 139 113
Freeman's Settlement, re, 37 CD. 148 ; 57 L.J. Ch. 160 ; 57 L.T.
798; 36 W.E. 71 99,100,184
Freeman v. Whitbread, 1 Eq. 266; 35 L.J. Ch. 137 ; 13 L.T. 550;
14W.E. 188 33
Frith, re, Newton v. Eolfe (1902) 1 Ch. 342; 71 L.J. Ch. 199;
86 L.T 212 ... ... 94 95 154
Fry V. ¥iy', 27 Beav. 144;"28 L.J.'ch. 591*;"34 L.T."(O.S.) 51; '
5 Jur. (N.S.) 1047 78
Fry V. Tapson, 28 CD. 268; 33 W.E. 113; 54 L.J. Ch. 224; 51
L.T. 326 43
xviii Table op Cases.
G.
FAGB
Gadd, re, Eastwood v. Clark, 23 CD. 134; 31 W.E. 417; 52 L.J.
Ch. 396; 48L.T. 395... ... ... ... 33,55
Galland v. Barton, re Fawsitt, 30 CD. 231 ; 55 L.J. Ch. 568 ; 63
L.T. 271 ; 34 W.E. 26 ... ... ... ... 149
Gardiner, re, 33 CD. 690 ; 35 W.E. 28 ; 55 L.J. Ch. 714 ; 65 L.T.
261 100,101
Gardner!). Cowles, 3C.D. 304; 24 W.B.920 133
Gardner's Trusts, re, 10 CD. 29 ; 40 L.T. 52 ; 27 W.E. 164 98, 105, 107
Gartside's Estate, re, 1 W.E. 196 ... ... ... ... 97
General Accident Assurance Corporation, Ltd. (1904) 1 Ch. 147 ;
73 L.J. Ch. 84 ; 90 L.T. 699 108
Gibbon's Trusts, re (1882) W.N. 12 ; 30 W.E. 287 ; 45 L.T. 756 ... 98
Gibbon's Will, re, 36 CD. 486 ; 36 W.E. 180 ; 56 L.J. Ch. 911 ;
58 L.T. 8 147
Giles, re, 55 L.J. Ch. 695 ; 34 W.E. 712 ; 55 L.T. 51 147
Gillett's Trusts, re (1876) W.N. 251 ; 25 W.E. 23 98
Gjers, re. Cooper v. Gjers (1899) 2 Ch. 54; 47 W.E. 535; 68 L.J.
Ch. 442 ; 80 L.T. 689 79
Gladstone, re, Gladstone v. Gladstone (1900) 2 Ch. 101 ; 48 W.E.
531 ; 69 L.J. Ch. 455; 82 L.T. 615 ... ... 160, 161
GlanviUe, re (1877) W.N. 248 ; (1878) W.N. 21 ... 135, 137
Gledstane, re (1878) W.N. 26 ... ... ... ... 146
Goldberger v. Eoth, re Eoth (1896) W.N. 16 ; 74 L.T. 50 ... 41
Gordon, re, 6 CD. 531 ... ... ... ... ... 53
Goslmg V. Woolf (1893) 1 Q.B. 39 ; 41 W.E. 106 ; 68 L.T. 89 ... 71
Governors of Christ's Hospital, exparte, 2 H. & M. 168 ... ... 45
Grace v. Baynton (1877) W.N. 79 ... ... ... ... 124
Graham, re (1891) 1 Ch. 151 ; 60 L.J. Ch. 98 ; 63 L.T. 664 ; 39
W.fi. 157 201
Grange, re. Cooper v. Todd (1881) W.N. 60; 29 W.E. 502; 44
L.T. 469 68,101
Grant v. Grant, 34 L.J. Ch. 641 ; 6 N.E. 347 ; 11 Jur. (N.S.)
787; 13 L.T. 721; 13 W.E. 1057 100
Grant, re, 2 J. & H. 764 ... ... ... ... ... 140
Grayson, re, 27 W.E. 534 ; 40 L.T. 98 ; 27 W.E 534 110
Green, re, 10 Ch. 272 ; 33 W.E. 804 ; 32 L.T. 446 203
Greenham v. Gibbeson, 10 Bing. 363 ; 38 E.E. 458 ... ... 33
Greenwood's Trusts.ire, 27 CD. 359 ; 33 W.E. 342 ; 54 L.J. Ch.
623; 61L.T. 283 107,195
Greenwood v. Wakeford, 1 Beav. 576 ; 8 L.J. Ch. 333 ... 52, 63
Gregson's Trusts, re, 34 CD. 209 ... ... 58, 97, 98, 100, 102
Gregson's Trusts, re (1893) 3 Ch. 233 ; 62 L.J. Ch.764; 69 L.T.
73; 41 W.E. 641 135-137,167
Griffith V. Hughes (1892) 3 Ch. 105; 40 W.E. 524; 62 L.J. Ch.
136; 66 L.T. 760 153
Grindey, re. Clews v. Grindey (1898) 2 Ch. 693 ; 47 W.E. 63 ; 67
L. J. Ch. 624; 79 L.T. 106 178,186,187
Groom, re, 11 L.T. (N.S.) 326 ... ... ... ... 144
Groom, re. Booty v. Groom (1897) 2 Ch. 407 ; 66 L.J. Ch. 778 ; 77
L.T. 154 ... ... 147
Gunson v. Simpson, 5 Eq. 332 ; 18 L.T. 78 ; 16 W.E. 782 97, 102
Gumey, re. Mason v. Mercer (1893) 1 Ch. 590 ; 41 W.E. 443 ; 68
L.T. 289 8,9
Table of Cases. xix
Hadgett v. Commissioners of Inland Revenue, 3 Ex. Div. 46 : 26
W.R. 115 ; 37 L.T. 612 64
Hadley, re, 5 De G. & Sm. 67 ; 21 L.J. Ch. 109 ; 16 Jur. 98 ... 53
Hall V. Bromley, 35 CD. 642; 35 W.R. 659; 56 L.J.Ch. 722 ; 56
L.T. 683 127
Hall J). Hale, 51 L.T. (N.S.) 226 124
Hancox v. Spittle, 3 Sm. & G. 478 ... ... ... ... 127
Hardaker v. Moorhouse, 26 CD. 417 ; 32 W.R. 638 ; 53 L.J. Ch.
713" 50 L.T. 554 ... .55
Hardoon'v. BeliHos (1901) A.C. 118 ;'70 L.J.P.C. 9; 83* L.T. 573;
49 W.R. 209 ... ... ... ... ... 94 95
Hardstaff, re'(1899)"w.N. 266 ".'.". ".'.". '.".'. ... 197
Harford's Trusts, re, 13 CD. 135 ; 28 W.R. 239 ; 41 L.T. 382 100, 203
Hargreaves, re (1901) 2 Ch. 547 n. ... ... ... ... 176
Hargreaves v. Wright, 1 W.R. 108 ... ... ... ... 125
Harkness and Allsopp, re (1896) 2 Ch. 358 ; 65 L.J. Ch. 726 ; 74
L.T. 652 ; 44 W.R. 683 73,99
Harris v. Harris, 29 Beav. 107; 7 Jur. (N.S.) 955 ; 9 W.B. 444 ... 19
Harrison, re, 22 L.J. Ch. 69 ; 1 W.R. 58 131
Harrison, re, Seton, 6th edition, p. 1213 ... ... ... 165
Hai-risonu. Thexton,4 Jur. (N.S.) 550 ... ... ... 33
Harrison's Settlement, re (1883) W.N. 31 ... ... ... 66
Harrop's Trusts, re, 24 CD. 717 ; 48 L.T. 937 158
Hartnall, re, 5 De G. & Sm. Ill ; 21 L.J. Ch. 384 ; 16 Jur. 33 ... 134
Harvey v. Olliver (1887) W.N. 149 ; 50 L.T. 239 ... 95, 140
Harwood, re, 20 CD. 536 ; 30 W.R. 595 ; 51 L.J. Ch. 578 ... 133
Hattett, re, 18 W.R. 416 ; 21 L.T. 781 99
Hawksley v. Outram (1892) 3 Ch. 359. (In Court below) 61 L.J.
Ch. 429 ; 66 L.T. 765 68
Hawley v. Blake, re Houghton (1904) 1 Ch. 622 ; 73 L.J. Ch. 317 85
Hazeldine re, 16 Jm-. 853 ... ... ... ... ... 102
Head v. Gould (1898) 2 Ch. 250; 46 W.R. 597; 67 L.J. Ch. 480;
78 L.T. 739 47,94,102
Herbert, re, 8 W.R. 272 132
Herring^;. Clark, 4Ch. 167 105,122
Hetherington's Trusts, re, 34 CD. 211 ; 35 W.R. 285; 56 L.J. Ch.
174; 55L.T. 806 57,58,101
Hetling and Merton, re (1893) 3 Ch. 269 ; 42 W.R. 19 ; 62 L.J. Ch.
783; 69 L.T. 266 76,77
Heydon's Case, 3 Co. Rep. 76 ... ... ... ... 1
Heys's Will, re, 9 Hare 221 ; 22 L.J. Ch. 248 ... 129
Hickman v. Upsall, 20 Eq. 136 ... ... ... 109, 135
Higginbotham, re(1892)3Ch. 132; 67L.T. 190 98
Hirst, re, 45 CD. 263; 60 L.J. Ch. 48; 63 L.T. 444; 38 W.R.
685. 197
Hockey v. Western (1898) 1 Ch. 350; 46 W.R. 312; 67 L.J Ch.
166; 78 L.T. 1 82
Hodgkinson, re, Hodgkinson v. Hodgkinson (1895) 2 Ch. 190 ; 64
L. J. Ch. 663 ; 72 L.T. 617 ; 43 W.R. 594 94
Hodgson, re, 11 Ch. D. 888 106, 144
Hodson's Settlement, re, 9 Ha. 118 ; 20 L.J. Ch. 551 ; 15 Jui-. 552 96
Hewitt's Estate, re, 6 W.R. 537 ... ... ... ... 144
Holgate v. Jennings, 24 Beav. 623 ... ... ... ... 231
HoHand v. HoUand, 4 Ch. 449 ; 38 L.J. Ch. 398 ; 17 W.R. 657 ... 8
Holloway, re (1894) 2 Q.B. 163; 63 L.J.Q.B. 672; 70 L.T. 615;
42W.R. 433 149
XX Table of Cases.
FAGB
HoUoway Brothers, Ltd., v. Hffl (1902) 2 Ch. 612 ; 72 L.J. Ch.
818; 87L.T.201 71
Holt, re, Holt v. Holt (1897) 2 Ch. 525 ; 45 W.R. 650 ; 66 L.J. Ch.
734; 76L.T. 776 155,195
Hooper v. Strutton, 12 "W.R. 367 ... ... ... ... 108
Hopper, re (1886) W.N. 41 ; 54 L.T. 267 ; 34 W.R. 392 ... 136
Houghton, re, Hawley v. Blake (1904) 1 Ch. 622 ; 73 L.J. Ch. 317 85
How V. Winterton (1902) W.N. 230 ... ... ... ... 94
How V. Earl Winterton (1896) 2 Oh. 626; 45 W.R. 103; 65 L.J.
Ch. 832 ; 75 L.T. 40 6-10
Howe V. Lord Dartmouth, 7 Ves. 137 ; 6 R.R. 96 ... 6, 15, 176
Howe, exparte, re Lake (1903) 1 K.B. 439 ; 72 L.J.K.B. 213; 88
L.T. 31; 51W.R. 496 47
Howell V. Young, 5 B. & C. 259 ; 8 Dow. & By. 14; 4 L.J.K.B.
160 ; 2 C. & P. 238 ; 29 R.R. 237 10
Howgate and Osbom's Contract, re (1902) 1 Ch. 451 ; 71 L.J. Ch.
279 ; 86 L.T. 180 73,74,170
Hughes's Settlement, re, 2 H. & M. 695 ... ... ... 106
Hulmei;.Huhiie,2M. &K 682 ... ... ... ... 59
Hume V. Lopes (1892) A.C. 112; 61 L.J. Ch. 423; 66 L.T. 425;
40 W.R. 593 18, 30, 33, 34
Humphrey, re, 1 Jur. (N.S.) 921 ... ... ... ... 98
Hutchinson v. Stephens, 5 Sim. 498 ; 3 L.J. Ch. 239 ... 98, 107
Hutton V. Annan (1898) A.C. 289 ; 67 L.J.P.C. 49 ... ... 184
Hyde r. Benbow (1884) W.N. 117 ... ... ... ... 195
L
Imray v. Oakshette (1897) 2 Q.B. 218 ; 45 W.R. 681 ; 66 L.J.Q.B.
544; 76 L.T. 632 71,72
Ingleby and Norwich Union Insurance Co., 13 L.R. Ir. 326 ... 56
Isaac V. Wall, 6 CD. 706 ; 46 L.J. Ch. 576 ; 37 L.T. 227 ; 25 W.R.
844 81
Isaacson v. Harwood, 3 Ch. 225 ; 37 L.J. Ch. 209 ; 18 L.T. 622 ;
16 W.R. 410 8
Jackson u. Claney, re Clinton (1882) W.N. 176 ... ... 143
Jenkins v. Jones, 9 Q.B.D. 128 ; 51 L.J.Q.B. 438 ; 46 L.T. 795 ;
30 W.R. 668 164
Jenkins and Randal, re (1903) 2 Ch. 362 ; 72 L.J. Ch. 693 ; 88 L.T.
628 19,47
Jeune v. Baring, re Baring (1893) 1 Ch. 61 ; 62 L J. Ch. 50 ; 67
L.T. 702; 41 W.B.87 78-81
Joliffe, re(1893) W.N. 84; 68L.T. 747; 3R.718 135
Jones, re, 22 W.R. 837 195
Jones, re, Christmas v. Jones (1897) 2 Ch. 190; 66 L.J. Ch. 439 ;
76L.T. 454; 45W.R. 598 94
Jones, D,, and Company's Mortgage Trusts (1888) W.N. 217; 59
L.T. 859 170
Jones v. Jones, 5 Hare 440 ... ... ... ... ... 81
Jones I). Julian, 25 L.R. Ir. 45 ... ... ... ... 48
Jones V. Owens, 47 L.T. 61 ... ... ... ... 84, 85
Jones V. Trappes, re Sisson's Settlement rigOS) 1 Ch. 262; 72 L.J.
Ch. 212; 87L.T. 743; 51 W.R. 411 41
Jones V. Watts, 43 CD. 574 ; 38 W.R. 725 ; 62 L.T. 471 ... 165
Table of Cases. xxi
K.
PAGE
Kane's Trasts, j-e, 21 L.K Ir. 112 ... ... ... ... 157
Kay, re, Mosley v. Kay (1897) 2 Ch. 518; 66 L.J. Ch. 759 ; 46
W.B. 74 186, 187
Keeley's Trusts, j-e, 53 L.T. 487. ... ... ... 66,110,134
Kemp's Settled Estates, In re, 24 CD. 485 ; 31 W.R. 930 ; 52 L.J.
Ch. 950 ; 49 L.T. 231 57,158
King V. Smith, 6 Ha. 473 ; 18 L.J. Ch. 43 ; 12 Jur. 1083 ... 141
King V. Smith (1900) 2 Ch. 425; 69 L.J. Ch. 598; 82 L.T. 815 ... 76
Kingston Cotton MUl Co. (1896) 1 Ch. 331; 65 L.J. Ch. 673; 74
L.T. 568 6
Knight, re, 26 CD. 82; 32 W.E. 417; 53 L.J. Ch. 223; 50 L.T.
550 56,99,141
Knight i;. Knight (1866) W.N. 114 ; 14 L.T. 161 ... 110,135
Knott 17. Cottee, 16 Beav. 77 ; 16 Jur. 752 ... ... ... 47
Knowles's Settled Estates, 27 CD. 707 ; 33 W.E. 364 ; 54 L.J. Ch.
264; 51 L.T. 655 158
Knox, re (1895) 1 Ch. 538 ; (1895) 2 Ch. 483 ; 64 L.J. Ch. 860 ; 72
L.T. 761 110, 135, 140, 141
Lacy, re (1899) 2 Ch. 149 ; 68 L.J. Ch. 488 ; 80 L.T. 706 ; 47 W.E.
664... ... ... ... ... ... ... 10
Laing, re (1899) 1 Ch. 593 ; 68 L.J. Ch. 230 ; 80 L.T. 228 ; 47 W.E.
311 33
Lake, re, exparte, Howe (1903) 1 KB. 439 ; 72 L.J.K.B. 213 ; 88
L.T. 31 ; 51 W.R. 496 47
Lamotte, re, 4 CD. 325; 36 L.T. 231 ; 25 W.R. 149 ... 106, 144
Lander v. Weston, 3 Drew 389; 25 L.J. Ch. 235; 2 Jur. (N.S.)
58;4W.E. 358 228
Lands AUotment Co. (1894) 1 Ch. 616 ; 63 L.J. Ch. 291 ; 70 L.T.
286; 12 W.E. 404 6
Lane and Irving, j-e, 12 W.R. '"10 ... ... ... ... 126
Law Guarantee Society v. Bank of England, 24 Q.B.D. 406 ; 62 L.T.
496 ; 38 W.R. 493 57
Lawrance «;. Galsworthy, 3 Jur. (N.S.) 1049 ... ... ... 166
Lawrence, re, 14 W.R. 93 ; 13 L.T. 580 ... ... ... 200
Leahy v. de Moleyns (1896) 1 LR. 206 7, 154
Learoyd v. Whiteley, 12 A.C. 727 ; 33 CD. 347 ; 36 W.R. 721 ; 57
L.J. Ch. 390; 58L.T. 93 20,42,93,226,228
Lea'sTrust, re, 6 W.E. 482... ... ... ... ... 116
Lechmere v. Clamp, 31 Beav. 578 ; 30 L.J. Ch. 651 ; 2 W.R. 860 124
Lees V. Coulton, 20 Eq. 20 ; 44 L.J. Ch. 556 ; 23 W.R. 544 97, 122,
124 125
Lees's Trusts, re (1896) 2 Ch. 508 ; 44 W.R. 680 ; 65 L.J. Ch. 770 ; '
75 L.T. 178 98, 101, 108, 134
Legal and Reversionary Society v. Knight, re Chisholm, 43 Sol.
J. 43 182
Leigh V. Leigh (1886) W.N. 191 228
Lemann's Trust, re, 22 CD. 633 ; 31 W.R. 520 ; 52 L.J. Ch. 560 ;
48 L.T. 389 98,106
Leon, re (1892) 1 Ch. 503 ; 66 L.T. 390 101
Letterstedt v. Broers, 9 A.C 371 ; 53 L.J.C.P. 44 ; 51 L.T. 169 96, 183
Levy and Debenture Corporations' Contract, re, 38 Sol. J. 530 ;
8 R. 820; 42 W.R. 533 160
xxii Table op Cases.
FASE
Lewes' Trusts, re, 6 Ch. 356; 40 L.J. Ch. 602: 24 L.T. 533; 19
W.B. 617 109, 135
Lewis V. Nobbs, 8 CD. 591 ; 47 L.J. Ch. 662 ; 26 W.R. 681 ... 41
Lightbody. re, 52 L.T. 40 ; 33 W.B. 452 99, 204
Little, re, 7 Eq. 323 ... ... ... ... ... 195
Lloyd's Trusts, re (1888) W.N. 20 ; 57 L.J. Ch. 246 61
Lock v. Pearoe (1893) 2 Ch. 171 ; 41 W.B. 369 ; 62 L:J. Ch. 582 ;
68 L.T. 569 149
Lockhart v. Beilly, 1 De G. & J. 464; 25 L.J. Ch. 697 ; 3 W.B.
227 . ... ... 230
Locking "v. Parker's Ch. 30; 21 W.B. 113; 42 L.J. Ch. 257 ; 27
L.T. 635 169
London and County Banking Co. v. Goddard (1897) 1 Ch. 642 :
45 W.B. 810 ; 66 L.J. Ch. 261 ; 76 L.T. 277 ... 64-66, 169
Lonsdale v. Beckett, 4 De G. & Sm. 73; 19 L.J. Ch. 342; 16 L.T.
(O.S.) 229 ... ... ... ... ... ... 59
Lopes i;.'Hiune-Dick (1891)1 Ch. 423; 61 L.j! Ch. 423; 66 L.T.
425; 40 W.B. 593 18,30,33,34
Lord, Atkinson v., re Taylor, 81 L.T. 812 ... ... ... 10
Lord and FuUerton's Contract, re (1896) 1 Ch. 228; 44 W.B. 195;
65 L.J. Ch. 184 ; 73 L.T. 689 53, 62
Lysaght V. Edwards, 2 CD. 499 ; 24 W.B. 778 ; 45 L.J. Ch. 554 ;
34 L.T. 787 121
M.
M., re (1899) 1 Ch. 79; 68 L.J. Ch. 86; 79 L.T. 459; 47 W.B.
267 105,131
Maberly, re, Maberly v. Maberly, 33 Ch. D. 455; 34 W.B. 771 ;
56L.J. Ch. 54; 55L.T. 164 39
Macdonald, re, Dick v. Fraser (1897) 2 Ch. 181 ; 66 L.J. Ch. 630;
76 L.T. 713 ; 45 W.B. 628 84
Mace's'irusts,re(-1887) W.N. 232,238 101
Mackenzie v. Mackenzie, 5 De G. & Sm. 338 ; 21 L.J. Ch. 385 ; 16
Jut. 723 134, 135, 138
Macleod v. Annesley, 16 Beav. 600 ; 22 L.J. Ch. 633 ; 17 Jur. 608 ;
1 W.B. 250 ... ... ... ... ... .. 229
McKecknie V. Clark," re Clark (1904)1 Ch. 294*; 73 L.J!*Ch. 188 " 144
McLean v. Betts, re Betts, 41 Sol. J. 209 ... ... 96, 98
McMuiTay v. Spicer, 5 Eq. 527; 37 L.J. Ch. 505; 18 L.T. 116;
16 W.B. 332 107
Magdalen CoUege Case, 11 Co. Bep. p. 736 ... ... ... 2
Mainwaring, re, 26 Beav. 172 ; 28 L.J. Ch. 97 ; 5 Jur. (N.S.) 52 134,
136, 137
Mais, re, 27 L. J. Ch. 875 ; 16 Jur. 608 107
Mant V. Leith, 15 Beav. 524 ; 21 L.J. Ch. 719 ; 16 Jur. 302 20, 231, 232
Mara v. Browne (1895) 2 Ch. 69; (1896) lCh.199; 64L.J.Ch.
594; 72L.T.765 9,60,153,227
Mamer, re, 3 Eq. 432 ; 36 L.J. Ch. 58 ; 15 W.B. 99 204
Marriott, re, 16 W.B. 749 ; 18L.T. 749 100
Martin, re (1900) W.N. 129 182
Martin's Trusts, re, 34 CD. 618 ; 56 L.J. Ch. 695 ; 66 L.T. 241 ; 35
W.B. 524 96,98,106,121,183
Martyn, re, 26C.D.745; 50L.T. 552 101
Mason, re, 10 Ch. 273 ; 44 L.J. Ch. 678 ; 23 W.B. 737 105
Massingberd, re, Clark v. Trelawny, 63 L.T. 296 ... 34, 231
Matthew v. Northern Assurance Co., 9 CD. 80; 47 L.J. Ch. 562;
38 L.T. 468 ; 27 W.B. 51 199
Table of Cases. xxiii
PAGE
Matthews, re, 26 Beav. 463 ; 28 L.J. Ch. 295; 5 Jur. (N.S.) 184;
7W.E. 244 ... ... ... ... ... ... 97
Matthews v. Brise, 6 Beav. 239 ; 12 L.J. Ch. 263 : Affd. 15 L.J. Ch.
39 ; 10 Jur. 105 19
Medland, re, Eland v. Medland, 41 CD. 476 ; 37 W.R. 753 ; 58 L.J.
Ch. 572 ; 60 L.T. 781 177
MeUor v. Porter, 25 Ch. D. 158 ; 53 L.J. Ch. 178; 50 L.T. 49 ; 32
W.R. 271 124
Mendes v. Guedalla, 2 J. & H. 259; 31 L.J. Ch. 561 ; 8 Jur. (N.S.)
878 ; 6 L.T. 746 ; 10 W.B. 482 41
Mercer, re, 38 Sol J. 388 ... ... ... ... ... 59
Merchants' Trust and New British Lron Co., 38 Sol. J. 253 150, 163
Meyrick u. Lawes (1877) W.N. 223 ... ... ... ... 196
Meyriok's Estate, re, 9 Hare 116 ; 20 L.J. Ch. 336 ; 15 Jur. 505 ... 116
Midgley v. Midgley (1893) 3 Ch. 282; 62 L.J. Ch. 905 ; 69 L.T.
241 ; 41 W.R. 659 84
Miles's Will, re, 5 Jur. (N.S.) 1236 ; 27 Beav. 579 ; 29 L.J. Ch. 47 ;
1 L.T. 122 ; 8 W.R. 54 21
Miller v. Douglas 56 L.J. Ch. 91 ; 55 L.T. 583 ; 35 W.R. 122 ... 82
Mills, re, 37 CD. 312 ; 40 CD. 14 ; 37 W.B. 81 ; 57 L.J. Ch. 466 ;
58 L.T. 620 107, 110
Mills's Estate, re, 34 CD. 24 ; 56 L.J. Ch. 60 ; 55 L.T. 465 ; 35
W.R. 65 141
Minchin, re, 2 W.R. 179 ... ... ... ... ... 117
Mitchells. Nixon, 1 L-.Eq. Rep. 155... ... ... ... 53
Mitchell V. Simpson, 25 Q.B.D. 183; 59 L.J.Q.B. 355; 63 L.T.
405; 38W.R. 565 1
Moffatti-.Parsons, 5Taunt. 307; 15E.R. 506... ... ... 76
Mogridge V. Clapp (1892) 3 Ch. 382; 61 L.J. Ch. 534; 67 L.T.
100; 40 W.R. 663 71
Molyneux v. Fletcher (1898) 1 Q.B. 648; 67 L.J.Q.B. 392; 78 L.T.
Ill; 46 W.R. 576 155
Montagu, re, Faber v. Montagu (1896) 1 Ch. 549 ; 65 L.J. Ch. 372 ;
74 L.T. 346 ; 44 W.R. 583 124, 126, 128, 164
Montefiore v. Guedalla (1903) 2 Ch. 723 ; 73 L.J. Ch. 13 ; 89 L.T.
472; 52W.R. 151 56
Moody, re, Woodroffe v. Moody (1895) 1 Ch. 101 ; 43 W.R. 462 ;
64 L.J. Ch. 174 ; 72 L.T. 190 34
Moore, re, McAlpine v. Moore, 21 Ch. D. 778; 30 W.R. 839; 17
L.J. (Notes) 95 50, 51, 97, 102
Moore v. Knight (1891) 1 Ch. 547 ; 39 W.R. 312 ; 60 L.J. Ch. 271 ;
63 L.T. 831 7, 9, 10
Morgan v. Swansea Urban Authority, 9 CD. 582; 27 W.R. 283;
13 L.J. (Notes) 125 73,79
Momington, exparte, 4 De CM. & C, 537 ; 1 Eq.R. 368 ; 1 W.R.
248 ; S.C nom. WeUesley v. WeUesley, 22 L.J. Ch. 966 ... 124
Morris v. Debenham, 2 CD. 540 ; 24 W.R. 636 ; 34 L.T. 205 ... 68
Morrison, re (1901) 1 Ch. 701; 70 L.J. Ch. 399; 84 L.T. 383; 49
W.R. 441 67, 177
Mortimer v. Ireland, 11 Jur. 721, afifg. 6 Hare 196 ; 16 L.J. Ch. 416 56
Mortimore v. Mortimore, 4 De G. & J. 472 ; 28 L.J. Ch. 558 ;
7 W.R. 601 231
Morton and HaUett, re, 15 CD. 143 ; 28 W.R. 895 ; 49 L.J. Ch.
559; 42L.T. 602 56
Mosley v. Kay, re Kay (1897)2 Ch. 518; 66 L.J. Ch. 759; 46
W.R.74 ... ... ... 186,187
Moss's Trusts, re, 37 CD. 513 ; 36 W.R. 316 ; 57 L.J. Ch. 423 ; 58
L.T. 468 52,57-59,101,202
xxiv Table op Cases.
PAGE
Moxham v. Grant (1900) 1 Q. B. 88 ; 69 L.J.Q.B. 97 ... ... 155
Mimdel's Trusts, re, 8 W.E. 683 ; 6 Jur. (N.S.) 880 ; 2 L.T. 653 ... 109
Mniphy's Trust, re (1900) 1 LE. 145 147
Myrtle, Davidson v., re Smith (1896) 2 Ch. 590; 45 W.R. 29 ; 65
L. J.Ch. 761 ; 74 L.T. 810 27
N.
Nagle, re, 6 CD. 104 197
Nash, re, 16 CD. 503 ; 29 W.R. 294 ; 44 L.T. 40 101
National Bank of Wales, Ltd. (1899) 2 Ch. 629 ; 81 L.T. 363 ... 6
National Bmlding Society, re, 43 Ch. D. 431 ; 38 W.R. 475 : 59 L.J.
Ch. 403; 62 L.T. 596 18
Nesbitt's Trusts, re, 19 L.R. t. 509 ... ... ... 57, 58, 101
New, re (1901) 2 Ch. 534; 70 L.J. Ch. 710; 85 L.T. 174; 50 W.R.
17 67, 177
Newen, In re, Newen v. Barnes (1894) 2 Ch. 297 ; 43 W.R. 58 ; 63
L.J. Ch.763; 70L.T. 653 56
Newton v. Rolfe, re Frith (1902) 1 Ch. 342 ; 71 L.J. Ch. 199 ; 86
L.T. 212 94, 95, 154
New Zealan'a Trust and Loan Co. (1893) 1 Ch. 403 ; 41 W.E. 457 ;
62L.J.Ch. 262; 68L.T. 593 136,167
Nicholson v. Field (1893) 2 Ch. 511 ; 42 W.R. 48 ; 62 L.J. Ch.
1015 ; 69 L.T. 299 52, 55, 60
Niger Patent Enamel Co., 48 S.J. 476 ; (1904) W.N. 99 108
Noble 17. Meymott, 14 Beav. 471 ; 20 L.J. Ch. 612 ... ... 53
Norris, re, Allen v. Norris, 27 CD. 333 ; 32 W.R. 955 ; 53 L.J. Ch.
913 ; 51 L.T. 593 55,57
Norris V. Wright, 14 Beav. 291 ... ... ... ... 230
0.
Oceanic Steam Co. v. Sutherbury, 16 CD. 236; 29 W.R. 113; 50
L. J. Ch. 308 ; 43 L.T. 743 68
O'DonnelL re, 19 W.R. 522 110
Ogle V. Knipe, 8 Eq. 434 ; 38 L.J. Ch. 692 ; 20 L.T. 867 ; 17 W.R.
1090 21
O'Reaiy V. Alderson, 8 Hare 101 ... ... — ••. 56
Ormerod, re, 3 De G. & J. 249; 28 L.J. Ch. 55; 4 Jur. (N.S.)
1289; 7 W.E. 71 105
Osbom's Mortgage Trust, re, 12 Eq. 392 ; 40 L.J. Ch. 706 ; 25 L.T.
151 168
Osborne and Eowlett, re, 13 CD. 774; 49 L.J. Ch. 310; 42 L.T.
650; 28W.R. 365 56
Outhwaite, re (1891) 3 Ch. 494 ; 60 L.J. Ch. 854 ; 65 L.T. 144 ; 40
W.R. 38 18
Pagani, re (1892) 1 Ch. 236; 66 L.T. 244 121
Page, re, Jones v. Morgan (1893) 1 Ch. 304 ; 41 W.R. 357; 62 L.J.
Ch. 592 6, 9, 11
Paine's Trusts, re, 28 CD. 725; 33 W.R. 564; 54 L.J. Ch. 735;
52 L.T. 323 57,58,101
Pahner, re, 13 Eq. 408 ... ... ... ••■ ••• 19^
Parby, re, 29 L.T. (O.S.) 72 140
Table of Cases. xxv
PAGS
Parker's Trusts, re (1894) 1 Ch. 707 ; 63 L.J. Ch. 316 ; 70 L.T.
165... ... ... ... ... ... 55 56
Parker's WiU, re, "39 C.D.'JioS; 58'l.J. Ch. 23; 60 L.T. 83; 37
W.E. 313 147,148
Parker and Beech's Contract (1887) W.N. 27 ; 56 L.J. Ch. 358 ; 56
L.T. 95; 35W.E. 353 68
Parrott, r-e (1881) W.N. 158 99
Parsons, re, Stockley v. Parsons, 45 CD. 51 ; 59 L.J. Ch. 666 ; 62
L.T. 929 ; 38 W.R. 712 164
Pass V. Dundas, 43 L.T. (N.S.) 665 ; 29 W.E. 332 ... 92, 93
Paterson v. Paterson, 2 Eq. 31 ; 35 Beav. 506 ; 35 L.J. Ch. 518 ; 14
L.T. 320 ; 14 W.R. 601 127
Patman v. Harland, 17 CD. 353 ; 29 W.E. 707 ; 50 L.J. Ch. 642 ;
44L.T. 728 71,72
Patten and Edmonton Guardians, re, 52 L.J. Ch. 787 ; 48 L.T. 870 ;
31 W.R. 785 19
Payne v. Cork Co. (1900) 1 Ch. 308 ; 82 L.T. 44 ; 69 L.J. Ch. 156 ;
48W.E. 325 67
Payne v. Stamford, Earl of Stamford (1896) 1 Ch. 288 ; 44 W.E.
249 ; 65 L.J. Ch. 134 ; 73 L.T. 559 51, 57, 98, 99, 107, 158
Peacock, re, 14 CD. 212 ; 28 W.E. 801 ; 49 L.J. Ch. 228 ; 43
L.T. 99 ... ... ... ... ... 131 136
Peacock V. CoUing,'33 W.E."528; 54L.J. Ch. 743; 53 L.T. 620 ... ' 59
Peake, re (1894) 3 Ch. 520; 71 L.T. 371 ; 42 W.R. 687 ... 99
Pearson, re, 5 CD. 982 ; 46 L.J. Ch. 670 ; 37 L.T. 299 ; 25 W.E.
853 105
Pelton V. Harrison (1891) 3 Q.B. 422 ; 60L.J.Q.B. 742 ; 65 L.T. 54 2
Peppercorn v. Wayman, 5 De G. & Sm. 230; 21 L.J. Ch. 827; 16
Jur. 794 ... ... ... ... ... 53 55
PercivaU. Wright"(i902) 2 Ch. 421 ;"71 L.J. Ch. 846 ; 51 W.E. 31 ' 6
Perrins «. BeUamy (1899) 1 Ch. 797; 68 L.J. Ch. 397; 80 L.T.
478; 47 W.E. 417 187
Peyton, re, 25 Beav. 317 ; 2 De G. & J. 290 ; 4 Jur. (N.S.) 469 ;
1 L.T. 127 ; 6 W.E. 403 134
Peyton, re, 30 Beav. 252 ... ... ... ... ... 69
Peyton, re, 7 Bq. 463 ; 38 L.J. Ch. 477 ; 20 L.T. 728 230
Phelps's Settlement, re, 31 CD. 351 ; 55 L.J. Ch. 465 ; 54 L.T.
480 98, 106
Phene's Trust, 5 Ch. 139 ; 39 L.J.Ch. 316; 22 L.T. Ill ; 18 W.R.
303 ... ... 109 135
Phillips V. Rees, 24 Q.B.D. 17 ; 59 L.J.Q.B. i'j 61 L.t! 713; 38 '
W.R. 53 2
Pickerings. Pickering, 4 My. & Cr. 289; 8 L.J. Ch. 336; 3 Jur.
743; 2 Beav. 31 176
Pilling's Trusts, 26 CD. 432 ; 32 W.E. 853 ; 53 L.J. Ch. 1052 ... 97
Pixton and Long's Contract, re (1897) W.N. 178 ; 46 W.E. 187 56
Piatt, re, 36 CD, 410; 57 L.J. Ch. 152; 57 L.T. 857; 36 W.E.
273 105
Plenty v. West, 16 Beav. 356 100
Poplar and BlackwaU Free School, 8 CD. 543; 39 L.T. 88; 26
W.E. 827 146,147
Porter's Trust, re, 2 Jur. (N.S.) 349 ; 4 W.R. 417 ; 25 L.J. Ch.
482; 27L.T. (O.S.)26 97,100
Porter V. Watts, 21 L.J. Ch. 211 ; 16 Jur. 757 140
Pothonier, re de. Dent v. de Pothonier (1900) 2 Ch. 529 ; 69 L.J.
Ch. 773; 83L.T. 220 41
Powell, re, 23 W.R. 151 197
Powell 27. Matthews, IJur. (N.S.) 973 164
C
xxvi Table of Cases.
Power V. Banks (1901) 2 Ch. 487 ; 70 L.J. Ch. 700; 85 L.T. 376 ;
49 W.R. 679 19
Price, re (1883) W.N. 202 99,132
Price, re (1894) W.N. 169 ; 8 R. 621 134,135
Primrose, re, 23 Beav. 590; 5 W.R. 508; 29 L.T. (O.S.) 103 140, 141
Propert,re, 22L.J. Ch.948; 1 W.B. 237 121
Pryse, re, 10 Eq. 531 ; 39 L.J. Ch. 760; 18 W.E. 1064 197
PiiUen i;. Isaacs (1895) W.N. 90 ; 72 L.T. 834 195
Purser u. Darby, 4 K. & J. 41 ... ... ... ... 141
Pye, Martin, re, 42 L.T. 247 ... ... ... ... 195
E.
Baby v. Ridehalgh, 7 De G.M. & G. 104; 24 L.J. Ch. 528 ; 1 Jur.
(N.S.)363; 3W.B.344 33,154
BatclifF, re (1898) 2 Ch. 352 ; 67 L.J. Ch. 562 ; 78 L.T. 834 51, 182, 183
Eathbone, re, 2 C.D. 483 ; 24 W.B. 566 ; 45 L.J. Ch. 531 ... 165
Bay, re (1896) 1 Ch. 468 127
Baybould, re, Eaybould v. Tomer (1900) 1 Ch. 199 ; 69 L.J. Ch.
249; 82 L.T. 46; 48 W.E. 301 94
Eenshaw's Tmsts, re, 4 Ch. 783 ; 17 W.E. 1035 ... ... 98
Eeynault, re, 16 Jur. 233 ... ... ... ... ... 100
Rhodes, re, 36 CD. 586 ; 56 L.J. Ch. 825 ; 57 L.T. 652 109, 135
Richardson v. Grubb, 16 W.E. 176 ... ... ... ... 140
Eickettsw. Bicketts, 64L.T. (N.S.)263 ... ... ... 153
River Wear Commissioners v. Adamson, 2 A.C. 743 ; 47 L.J.Q.B.
193 ; 37 L.T. 543 ; 26 W.E. 217 2
EivesD. Rives (1866) W.N. 144; 14 L.T. 351 133
Roberts v. BaU, 4 W.R. 466 ... ... 146
Roberts v. Tmistall, 4 Hare 257 ; 14 L.J. Ch. 184 ; 9 Jur. 292 ... 10
Robinson v. Robinson, 1 De G.M. & G. 247; 21 L.J. Ch. Ill;
16 Jur. 255 230,231
Robinson v. Harkin (1896) 2 Ch. 415 ; 44 W.R. 702 ; 65 L.J. Ch.
773 ; 74 L.T. 777 10,94,155
Robinson v. Local Board of Barton Eccles, 8 App. Cas. 798 ; 32
W.R. 249 ; 53 L.J. Ch. 226 ; 50 L.T. 57 163
Robson V. Flight, 4 De G.J. & S. 608 ; 34 L.J. Ch. 226 ; 11 Jur.
(N.S.) 147; 11L.T. 725; 13W.R. 893 87
Rodger i;. Harrison (1893) 1 Q.B. 161; 62 L.J.Q.B. 213; 68 L.T.
66;41W.R. 291 164
RoUason, re, Holt v. Holt (1897) 2 Ch. 525; 45 W.R. 650; 66 L.J.
Ch. 734 ; 76 L.T. 776 155, 195
Roth, re, Goldberger v. Roth (1896) W.N. 16 ; 74 L.T. 50 ... 41
Rowlev V. Adams, 14 Beav. 130 ; 20 L.J. Ch. 436 ; 15 Jur. 1002 109,
110, 117, 138, 164
Rowlls V. Bebb (1900) 2 Ch. 107; 69 L.J. Ch. 562; 82 L.T. 633;
48 W.R. 562 33, 179
Rownson, re, 29 Ch. D. 358; 52 L.T. 825; 54 L.J. Ch. 950; 35
W.R. 604 84
Roy «. Gibbon, 4 Hare 65 ... ... ... ... ... 47
Russell, re (1866) W.N. 125 ; 35 L.J. Ch. 461 ; 12 Jur. (N.S.) 224 196
Russell, expwrte, 1 Sim. (N.S.) 404 ; 20 L.J. Ch. 196 ; 15 Jur. 100 134, 138
S.
Salmon, re, Priest v. Uppleby, 42 C.D. 351 ; 38 W.R. 150 47, 48
Sanders v. Homer, 25 Beav. 467 ; 6 W.R. 476 ... ... ... 133
Table of Cases. xxvii
Saumarez, re, 8 De G.M. & G. 390 ; 25 L.J. Ch. 575 ; 4 W.E. 658 203
Savile v. Couper, 36 CD. 520; 35 W.E. 829 ; 56 L.J. Ch. 980; 56
L.T. 907 52,58,101
Sawyer V. Sawyer, 28 CD. 595; 33 W.R. 403; 54 L.J. Ch. 444;
52 L.T. 292 ... ... ... ... ... 153, 154
Schofield, re, 24 L.T. (O.S.) 322 144
Scholefield v. Eedfem, 2 Dr. & Sm. 173 ; 32 L.J. Ch. 627 ; 9 Jur.
(N.S.) 485 ; 8 L.T. 487 ; 11 W.E. 453 33
Second East Dulwich Building Society, re, 68 L.J. Ch. 196 ; 79 L.T.
726; 47 W.R. 408 186
Shafto's Trusts, re, 29 CD. 247; 33 W.R. 728; 54 L.J. Ch. 885;
53L.T.261 55
Sharp, re, 45 CD. 286 ; 60 L.J. Ch. 38 ; 62 L.T. 777 37
Sheffield Building Society v. Aizlewood, 44 CD. 412; 59 L.J. Ch.
34; 62 L.T. 678 226,230,232,233
Shelmerdine, re, 33 L.J. Ch. 474; 11 L.T. 106 97
Shepherd u. Churchill, 25 Beav. 21 ... ... 97,122,124,125
Sheppard's Settlement Trusts, re (1888) W.N. 234 ; 23 L.J. Notes
148 54, 61
Sheppard's Trusts, re, 4 De G.F. & J. 423 ; 32 L.J. Ch. 23 ; 9 Jur.
(N.S.) 59 ; 7 L.T. 377 ; 11 W.R. 60 ; 1 N.R. 76 138
Shipperdson's Trusts, re, 49 L.J. (N.S.) Ch. 619 ... ... 100
Shortridge, re (1895) 1 Ch. 278 ; 64 L.J. Ch. 191 ; 71 L.T. 799 ; 43
W.R. 257 54, 56, 88, 98
Simpson, re (1897) 1 Ch. 256 ; 45 W.R. 277 ; 66 L.J. Ch. 166 ; 76
L.T. 131 100
Singlehurst v. Tapscott SS. Co. (1899) W.N. 133 ... ... 187
Sisson's Settlement, re, Jones v. Trappes (1903) 1 Ch. 262 ; 72 L.J.
Ch. 212 ; 87 L.T. 743 ; 51 W.R. 411 41
Skeats's Settlement, Skeats v. Evans, 42 CD. 522 ; 37 W.R. 778 ;
58 L.J.Ch. 656; 61L.T. 500 5&
Skinner, re (1896) W.N. 68 197
Skitter's Mortgage Trust, re, 4 W.R. 791 ... 74, 107, 115, 169
Smethm-st v. Hastings, 30 CD. 490 ; 55 L.J. Ch. 173 ; 52 L.T. 567 ;
33 W.R. 496 227, 228, 231
Smirthwaite's Trusts, re, 11 Bq. 251 ; 19 W.R. 381 ; 40 L.J. Ch.
176 ; 23 L.T. 726 97,102
Smith, re (1902) 2 Ch. 667 ; 71 L.J. Ch. 885 ; 51 W.R. 11 ... 177
Smith V. Callender (1901) A.C 303 ; 70 L.J.P.C 53 ; 84 L.T. 801 159-
Smith, re, Davidson v. MyiUe (1896) 2 Ch. 590; 45 W.R. 29 ; 65
L.J. Ch. 761 ; 74 L.T. 810 27
Smith, re, Eastick v. Smith (1904) 1 Ch. 139 ; 52 W.R. 104 ; 90
L.T. 604; 73L.J. Ch. 74 87,8a
Smith V. Everett, 27 Beav. 446; 5 Jur. (N.S.) 1332 ... ... 84
Smith V. Pox, 6 Hare 386 ; 17 L.J. Ch. 170 ; 12 Jur. 130 ... 10
Smith V. Patrick (1901) A.C. 282 ; 70 L.J. P.C 19 ; 84 L.T. 740 177
Smith u. Stoneham (1886) W.N. 178 ... ... ... 43
Smith V. Stuart, re Stuart. See re Stuart.
Smyth's Settlement, re, 4 De G. & Sm. 499; 20 L.J. Ch. 255; 15
Jur. 644 136
Smyth, re, 55 L.T. 37 ; 34 W.R. 493 106
Smyth, re, 2 De G. & Sm. 781 ... ... ... ... 204
SoDey v. Wood, 29 Beav. 482 ; 30 L.J. Ch. 813 ; 7 Jur. (N.S.) 1225 81
Somerset, re (1887) W.N. 122 9»
Somerset, re, Somerset v. Paulett (1894) 1 Ch. 231 ; 42 W.E. 145 ;
63 L.J. Ch. 41 ; 69 L.T. 744 ... 9, 10, 44, 153, 225-227, 233
Sparks, re, 6 CD. 361 ; 25 W.R. 869 140, 141
Sparrow, re, 5 Ch. 662 ; 18 W.R. 1185 98, 105.
xxviii Table of Cases.*
FAOI
Speight V. Gaunt, 9 App. Cas. 1 ; 32 W.B. 435 ; 53 L.J. Ch. 419 ;
50L.T. 330 f. 93
Spmmer i>. "Walsh, 10 It. Eq. Rep. 214 ... ... 115,168
Stamford, Earl of, Payne v. Stamford (1896) 1 C!h. 288 ; 44 W.B.
249 ; 65 L.J. Ch. 134 ; 73 L.T. 559 ... 51, 57, 98, 99, 107, 158
Stamper, re, 46 L.T. 372 ... ... ... ... ... 122
Stanley v. Wrigley, 3 Sm. & G. 18 ; 24 L.J. Ch. 176 ; 1 Jur. (N.S.)
695:3W.R.202 124
Stanley's Tmsta, re (1893) W.N. 30 ; 62 L J. Ch. 469 ; 68 L.T. 197 ;
41W.R.343 108,195
Steele, re (1885) W.N. 218 ; 53 L.T. 716 144
Stevens v. Rohertaon, 37 L.J. Ch. 499 ; 18 L.T. 427 ; 16 W.K. 724 33
Stickney v. SeweU, 1 My. & Cr. 8 226, 227
Stillwell ». Ashley, Seton, 6th edition, 1247 ... ... ... 107
Stocken's Settlement, re (1893) W.N. 203 97, 98, 99, 101, 106, 131,
132
Stockley v. Parsons, re Parsons, 45 CD. 51, 59 L.J. Ch. 666 ; 62
L.T. 929 ; 38 W.B. 712 164
Stockport Ragged Schools, re (1898) 2 Ch. 687 ; 68 L.J. Ch. 41 ;
78L.T. 290; 46 W.B. 455 ■ 38
Stokes V. Prance (1898) 1 Ch. 212 ; 67 L.J. Ch. 69 ; 77 L.T. 595 ;
46 W.R. 183 231
Stone w. Stone, 3 Jur. (N.S.) 708 ... ... ... ... 133
Stretton v. Ashmall, 3 Drew. 9 ; 24 L.J. Ch. 277 ; 3 W.R. 4 ... 226
Strond, re (1874) W.N. 180 135
Stuart, re (1897) 2 Ch. 583; 46 W.R. 41; 66 L.J. Ch. 780; 77
L.T. 128 43, 44, 186, 187
Stuart V. Stuart, 3 Beav. 430 ; 10 L.J. Ch. 148 ; 5 Jur. 3 ... 33
Summers u. Barrow, re Walker (1901) 1 Ch. 259; 49 W.B. 167;
70L.J.Ch.229 52
Sutton V. Sutton, 22 CD. 511 ; 31 W.R. 369 ; 52 L.J. Ch. 333 ; 48
L.T. 95 35
Sutton, re (1885) W.N. 122 98
Sutton's Trusts, re, 12 CD. 175 ; 27 W.R. 529 ; 48 L.J. Ch. 350 146
Swaffield 17. Nelson (1876) W.N. 255 230
Swain, re, Swain v. Bringeman (1891) 3 Ch. 233; 61 LJ. Ch. 20;
65L.T. 296 9-11
Taitt's Trusts, re (1870) W.N. 257 144
Tallatire, re (1885) W.N. 191; 30 SJ. 45; 20 L.J. Notes 181 ; 80
L.T. NewBp.26 53,54
TaUentire, re (1885) W.N. 191 ; 30 S.J. 45 ; 20 L.J. Notes 181 ; 80
L.T. Newsp. 26 53,54
Taylor, re, Atkinson v. Lord, 81 L.T. 812 ... ... ... 10
Taylor v. Tabrum, 6 Sim. 281 ; 1 L.J. Ch. 189 ... ... 69
Tempest, re, 1 Ch. 485 ; 14 W.B. 850 ; 35 L.J. Ch. 632 ; 14 L.T.
688 ; 12 Jur. (N.S.) 539 99
Tempest v. Lord Camoys, 21 CD. 571 ; 31 W.R. 326 ; 51 L.J. Ch.
785; 48 L.T. 13 55
Tempest v. Lord Camoys, 58 L.T. 221 ... ... 56,99
Thomas's Trusts, re, 40 Sol. J. 98 ... ... ... 151, 198
Thompson's Will, re, 21 L.E. It. 109 ... ... ... 158
Thomson v. Lord Clanmorris (1900) 1 Ch. 718; 82 L.T. 277; 69
L.J. Ch. 337; 48 W.B. 488 10
Table of Cases. xxix
PAOB
Thome v. Heard (1894) 1 Ch. 699 : (1895) A.C. 498 ; 44 W.E. 155 ;
64 L.J. Ch. 652 ; 73 L.T. 291 6, 7, 9, 10, 169
Thornton v. Stokill, 1 Jur. (N.S.) 751 47
Thornton's Trusts, re, 9 W.R. 475 ... ... ... ... 134
Timmis re (1902) 1 Ch. 176 ; 71 L.J. Ch. 118 ; 85 L.T. 672 ; 50
■W.R.164 7,9,11
ToUemache, re (1903) 1 Ch. 457: 72 L.J. Ch. 539; 88 L.T. 670;
51 W.R. 597 67, 178, 186
Townend v. Townend, 1 Giff. 201 ; 5 Jur. (N.S.) 506 ; 7 W.R. 529 228
Townsend, eayparte, 1 Moll. 139 ... ... ... ... 77
Trafford v. Boehm, 3 Atk. 440 ... ... ... ... 154
Trappes, Jones v., re Sisson's Settlement (1903) 1 Ch. 262 ; 72 L.J.
Ch. 212 ; 87 L.T. 743 ; 51 W.R. 411 41
Travis v. lUingworth, 2 Dr. & Sm. 344; 34 L.J. Ch. 481 ; 11 Jur.
(N.S.) 215; 12 L.T. 134; 13 W.R. 489 53
Trenchard, re (1902) 1 Ch. 378 ; 71 L.J. Ch. 178 ; 86 L.T. 196 ; 50
W.R. 266 .. 85
Trubee'a Trusts, re (1892) 3 Cb. 55; 40 W.R. 552; 61 L.J. Ch.
715; 67L.T. 161 132,171
Tucker, re, Tucker v. Tucker (1894) 1 Ch. 724; 62 L.J. Ch. 442;
69L.T. 85; 41 W.E. 505 177
Tunstall, raporfe, 4 De G. & S. 421 ... ... ... ... 100
Tumbu]], re, Turnbull v. Nicholas (1900) 1 Ch. 180 ; 48 W.R. 136 ;
69 L.J. Ch. 187 ; 81 L.T. 439 99"
Turner v. Smith (1901) 1 Ch. 213; 70 L.J. Ch. 144 ; 83 L.T. 704;
49 W.R. 186 46.
Turner, re, Barker v. Ivimey (1897) 1 Ch. 536 ; 66 L.J. Ch. 282 ;
76 L.T. 116; 45 W.R. 495 48, 186, 230, 233-
Tweedy, re, 28 CD. 529; 54 L.J. Ch. 331 ; 52 L.T. 65; 33 W.R.
313 ... 135
Tweedy, re, 9 W.R. 398 195,196
Tyler's Trusts, re, 5 De G. & S. 56 ; 21 L.J. Ch. 16 ; 15 Jur. 1120 102-
U.
Underwood, «, 3 K.& J. 475; 5 W.R. 866 166,169"
V.
Van Straubenzee, re, Boustead v. Cooper (1901) 2 Ch. 779 ; 70 L.J.
Ch. 825; 85 L.T. 541 176
Venour, re, Venour v. Sellon, 2 Ch. D. 522 ; 34 W.R. 752 ; 45 L.J.
Ch. 409 35
Vicat, re, 33 CD. 103 ; 34 W.R. 645 ; 55 L.J. Ch. 843 n. ; 54 L.T.
891 101
Vickers, re, 3 CD. 112 ; 46 L.J. Ch. 16 ; 24 W.R. 755 105
Vickery v. Evans, 33 Beav. 376 ; 3 N.R. 286 ; 33 L.J. Ch. 261 ; 10
Jur. (N.S.) 30 ; 9 L.T. 822 ; 12 W.R. 237 ... 44, 230, 232
Vigrass i;. Binfield, 3 Mad. 62 - 47
W.
Wadsworth, re, 63 L.T. 217 197
Waite V. Parkinson, 85 L.T. 456 ... ... ... •■■ 48
Wake V. Wake, 17 Jur. 545; 1 W.E. 283 112, 122
XXX Table of Cases.
FAGB
Walker w. Symonds, 3 Sw. 1 ; 19 R.B. 155 93
Walker and Oakshott, re (1901) 2 Ch. 383; 70 L.J. Ch. 666; 84
L.T. 809 ; 50 W.E. 41 68
Walker, re, 59 L.J. Ch. 386 43,44,48
Walker and Hughes's Contract, re, 24 CD. 698 ; 53 L.J. Ch. 135 ; 49
L.T. 597 52,54
Walker, re, Summers v. Barrow (1901) 1 Ch. 259 ; 49 W.E. 167 ;
70 L.J. Ch. 229 52, 98, 107
Walker's Mortgage Trusts, re, 3 CD. 209 108,169
Walker's Trusts, re, 48 L.T. (N.S.) 632 ; 31 W.E. 716 158
Want t;. Campain, 9 T.L.B. 254 ... ... ... ... 48
Warburton v. Sandys, 14 Sim. 622 ; 14 L.J. Ch. 431 ; 9 Jur. 503 ... 65
Warde, re, 2 J. & H. 191 ... ... ... ... ... 18
Warner v. Jacob, 20 CD. 220 ; 51 L.J. Ch. 642 ; 46 L.T. 656 ; 30
W.K. 721 74,168
Warren, re, Weadon v. Eeading (1884) W.N. 181 ; 53 L.J. Ch.
1016; 51L.T. 561 85
WasseU v. Leggatt, re WasseU (1896) 1 Ch. 554 ; 44 W.E. 298 ; 65
L.J. Ch. 240 ; 74 L.T. 99 6
Watson, re, 19 Ch. D. 384 ; 30 W.E. 554 ; 45 L.T. 513 ... 101
Watts, re, 9 Hare 106 ; 20 L.J. Ch. 337 ; 15 Jur. 459 54
Watts, re, 24 W.E. 701 ... ... ... ... ... 199
Webb V. Jonas, 39 CD. 660; 57 L.J. Ch. 671; 58 L.T. 882; 36
W.E. 666 41,231,232
Weeding's Estate, re, 4 Jur. (N.S.) 707 121
Welch, re, 3 My. & Cr. 292 ; 7 L.J. CL 169 100
l^^est of England Bank v. Murch, 23 CD. 138; 31 W.E. 467; 52
L.J. Ch. 784; 48L.T.417 59,85,100
IVest and Hardy, re (1904) 1 Ch. 145 ; 52 W.E. 188 ; 89 L.T. 579 73,
74, 170
Westhead v. Sale, 6 W.E. 52 ; 3 Jur. (N.S.) 1209 149
Weston V. Filer, 5 De G. & Sm. 608 ; 16 Jur. 1010 ... ... 118
"Weston's Trusts, re (1898) W.N. 151 98,106,203
Westwood, re, 6 N.E. 61, 316 ... ... ... ... 133
Wheeler and De Eoohow, re (1896) 1 Ch. 315; 44 W.E. 270; 65
L.J. Ch. 219; 73L.T. 661 53,54,61
Wheelwright v. Walker, re Walker, 23 CD. 752; 31 W.E. 363 ; 52
L.J. Ch. 274; 48 L.T. 70, 632 158
IVhitchurch, re (1897) 1 Ch. 256 ; 66 L.J. Ch. 166 ; 76 L.T. 131 ;
45W.E. 277 158
White, re, 5 Ch. 698 ... ... ... ... ... 134
"Whiteley, re, Whiteley v. Learoyd, 33 Ch. D. 347 ; 36 W.E. 721 ;
57 L.J. Ch. 390 ; 58 L.T. 93 20,2^:5,227-229
Whitney v. Smith, 4 Ch. 513 ; 20 L.T. 468 ; 17 W.E. 579 ... 234
Whitton, eaiparfe, 1 Keen 278 ... ... ... ... 115
Whitwam t». Watkin, 78 L.T. 188 ... ... ... ... 6
WiddowBon v. Duck, 2 Mer. 498 ; 16 E.E. 206 ... ... ... 33
Wilcock, re, 34 CD. 508 ; 56 L.J. Ch. 757 ; 56 L.T. 629 ; 35 W.E.
450 157
Wilding V. Bolder, 21 Beav. 222 ... ... ... ... 99
Wilkins v. Hogg, 10 W.E. 47 ; 81 L.J. Ch. 41 ; 8 Jur. (N.S.) 25 ;
5 L.T. 467 93
Wilkinson's Mortgaged Estates, re, 13 Eq. 634 ; 41 L.J. Ch. 392 150,
197 198
Wilis V. Groom, 6 D.G.M. & G.205 ; 2 Jur. (N.S.) 1077; 4 W.E. '
828 ... ... ... ... ... ... 108
Willan, re, 9 W.E. 689 195, 196
Willey, /n re (1890) W.N. 1 51,102
Table of Cases. xxxi
Williams, re, 5 De G. & Sm. 515 ... ... ... ... 122
Williams's Settlement, re, 4 K. & J. 87 ; 6 W.R. 218 ... ... 53
Wmiams's Trusts, re, 36 CD. 231 ; 36 W.E. 100 ; 56 L.J. Oh. 1088 ;
56L.T. 884 97,102
Willway, re, 32 L.J. Ch. 226 ; 1 N.R. 469 198
Wilmott V. Smith, 3 Car. & P. 453 ; M. & M. 338 ; 31 E.R. 732 ... 76
Wilson, re, 45 CD. 266 ; 60 L.J. Ch. 101 ; 63 L.T. 100 ; 39 W.E.
58 149
Wilson, re, 31 CD. 522 ; 55 L.J. Ch. 632 ; 54 L.T. 461 204
Wise V. Perpetual Trustee (1903) A.C. 139 ; 72 L.J.P.C 31 ; 87
L.T. 569; 51 W.E. 241 94,95
Wiseman, re, 18 W.E. 574 ... ... ... 140,141
Wood V. Beetlestone, 1 K. & J. 213 ... ... ... 122, 126, 128
Woodbum's Will, re, 1 De G. & J. 333 ; 26 L.J. Ch. 522 ; 3 Jur.
(N.S.) 799 ; 5 W.E. 692 141
Woodcock, re, 37 Sol. J. 250 ... ... ... ... 197
Woodgate, re, 5 W.E. 448 ... ... ... ... ... 53
Woodroflfe v. Moody, re Moody (1895) 1 Ch. 101 ; 43 W.R. 462 ;
64L.J. Ch. 174; 72L.T. 190 34
Worrall «. Harford, 8 Ves. 4 ... ... ... ... 94
Wragg, re, 1 De G.J. & Sm. 356; 2 N.E. 49 138
Wyatt u. Sherratt, 3 Beav. 498 ... ... ... ... 47
Wyman v. Paterson (1900) A.C 271 ; 69 L.J.P.C 32 ; 82 L.T. 473 77,
93 94 171
WynD, re, 16 Eq. 237 ; 21 W.E. 695 "... ' 197
Wynne t). Tempest (1897) W.N. 43 94,186
Y.
Yates, re, Batcheldor v. Yates, 38 CD. 112; 36 W.E. 563; 57 L.J.
Ch. 697 ; 59 L.T. 47 68,150
TABLE OF STATUTES.
SATE.
SDBJECT-MAIIHS, OE SHOKT TITII.
PAGB
21 Jac. 1. c. 16 (1623) .
Limitation Act —
sect. 3
... 9, 84
29 Car. 2. c. 3 (1677) . .
Statute of Frauds
... 84
6 Ann. c 11 (1706) . .
Act of Union
... 21
7 Ann. c. 19 (1708) . .
Trust or mortgage estates ...
... 114
36 Geo. 3. c. 52 (1796) .
Legacy Duty Act —
sect. 32 ...
145, 172
45 Geo. 3. c. 28 (1805) .
Legacy Duty —
sect. 7
... 145
9 Geo. 4. c. 121 (1828) .
Statute of Frauds Amendment
9
11 Geo. 4. & 1 Will. 4. c.
Estates vested in Trustees (Lord'
. St. Leonards's Trustee Act) .
107, 110,
60 (1830)
127, 149
sect. 6
114, 115
„ 8 114,115,168
„ 16
118, 119
„ 17
118, 119
„ 18
118, 119
„ 22
... 99
„ 24
148, 149
11 Geo. 4. & 1 Will. 4. c.
65(1830)
Infants' Property —
sect. 32 ...
... 133
4&5 WiU. 4. 0.23(1834)
Escheat and Forfeiture Act
160, 168
sect. 2
... 115
„ 3
159, 160
„ 5
159, 160
4&5 WilL4.c.29(1834)
Loans by Trustees (Lynch's Act)
... 15
1 & 2 Vict. c. 69 (1837) .
Estates vested in neirs, etc., of mort-
gagees
115, 168
3 & 4 Vict. c. 108 (1840) .
Municipal Corporations, Lreland
... 26
7 & 8 Vict. c. 76 (1844) .
Transfer of Property —
sect. 10 ...
... 82
8 & 9 Vict. c. 16 (1845) .
Companies Clauses Act
37, 231
8 & 9 Vict. c. 106 (1845) .
Real Property —
sect. 1
82, 164
9 & 10 Vict. c. 101 (1846)
Public Money Drainage Act —
sect. 37 ...
40, 172
10 & 11 Vict. 0. 32 (1847)
Landed Property (Ireland) Act —
sect. 53
40, 172
10 & 11 Vict. c. 96 (1847)
Trustee Relief Act ... 147
, 172, 199
sect. 1
145, 146
., 2
145, 146
xxxiv Table of Statutes.
DATE. SUBJECr-MATTEB, OE SHOET TITLE. PAGE
11 & 12 Vict. c. 68 (1848) Trustee EeHef Act (Ireland) 161, 172
12 & 13 Vict 0. 74 (1849) Trustee Relief Act Amendment Act 147,
161, 172
sect. 1 145,146
13 & 14 Vict. 0. 28 (1850) Trustee Appointment Act (Morton
Peto'sAct) ... ... 142
13 & 14 Vict. c. 60 (1850) Trustee Act ... 50,51,57,58,97,102,
104, 110, 115, 118,
120, 121, 135, 137,
144, 149, 161, 168,
183
sect. 1 160
„ 2 50,164,165,166,167,168
„ 3 104
„ 4 104
„ 5 104
„ 7 ... 105, 106, 107, 112, 115,
122, 126, 172
„ 8 ... 105,106,112,126,172
„ 9 ... 105, 106, 107, 108, 115,.
126, 172
„ 10 ... 105, 106, 115, 126, 172
„ 11 ... 105, 106, 115, 126, 172
„ 12 ... 105, 106, 115, 126, 172
„ 13 ... 108, 115, 126, 172
„ 14 ... 108, 115, 126, 172
„ 15 ... 109, 115, 126, 172
„ 16 ... Ill, 112, 115, 118, 172
„ 17 ... 109, 115, 117, 172
„ 18 109, 115, 172
„ 19 ... 114, 115, 116, 126, 172
„ 20 127,161
„ 21 156
„ 22 ... 131, 134, 135, 136, 172
„ 23 131, 134, 172
„ 24 ... 131, 134, 135, 136, 172
„ 25 ... 131, 132, 134, 172
„ 26 136,137
„ 28 128
„ 29 ... 117, 118, 119, 120, 121,
122, 124, 172
„ 30 112,118,119,121,123,124
31 137
"„ 32 58, 96, 97^ 99, 102, 104, 172
„ 33 96, 139, 172
„ 34 ... 104, 106, -126, 172
„ 35 ... 104, 131, 136, 172
„ 36 172
„ 37 137
„ 43 122
„ 44 142
„ 45 141
„ 46 159,160
„ 47 159, 160, 172
„ 49 148, 149, 172
„ 51 140, 141
„ 54 143, 144, 172
„ 55 144, 172
Table op Statutes.
XXXV
DATE.
15 & 16 Vict. c. 55 (1852)
SUBJECT-MATTER, OR SHORT TITLE.
16 & 17 Vict. c. 137 (1853)
17 & 18 Vict. c. 82 (1854)
17 & 18 Vict. c. 104 (1854)
18 & 19 Vict. c. 91 (1855)
20 & 21 Vict. c. 60 (1857)
20 & 21 Vict. c. 77 (1857)
21 & 22 Vict. c. 95 (1858)
22 & 23 Vict. c. 35 (1859)
22 & 23 Vict. 0. 39 (1859)
23 & 24 Vict. 0. 38 (I860)
23 & 24 Vict. c. 145(1860)
25 & 26 Vict. c. 89 (1862)
25 & 26 Vict. 0.108(1862)
26 & 27 Vict. c. 73 (1863)
26 & 27 Vict. c. 118 (1863)
27 & 28 Vict. 0.114(1864)
28 & 29 Viot. c. 78 (1865)
Trustee Extension Act ... 122,161
sect. 1 ... 117, 118, 119, 120, 121,
122, 126, 160, 173
„ 2 ...
109, 117, 131, 173
„ 3 ...
131, 173
„ 4
... 131,135,173
„ 5
... 131,135,173
„ 6 ...
136, 168
„ 7 ...
161
„ 8
... 96, 160, 173
„ 9 ...
... 96, 102, 173
„ 10
104
Charitable Trusts Act
142, 190
sect. 17
141
„ 28 ...
142
Court of Chancery (Lancaster) Act —
sect. 11 156,173
Merchant Shipping Act ... 137, 167
Merchant Shipping Act —
sect. 10 137,167,173
Irish Bankrupt and Insolvent Act-
sect. 322 ...
Probate Act —
sect. 77
Probate Act —
sect. 16
Law of Property Amendment Act (Lord
St. Leonards's Act)
sect. 23
„ 26 89,173
„ 30 173
„ 31 92,173
„ 32 15, 16, 17, 36
India Loan ... ... ... 15
Law of Property Amendment Act
(Lord St. Leonards's Act) —
sect. 9 ... ... ... 173
„ 10 16
„ 11 16
Lord Cranworth's Act ... 52, 54, 59, 139
173
86
51
82
sect. 8
...
80
„ 9
.. ...
80
„ 25
..
16
„ 27 ... 50,
"eO, 61, 138,
139
„ 28
5C
,60
„ 29
..
82
„ 30
8S
,85
„ 32
..
60
Companies Act
.". 27,29,37
,38
Confirmation of Sales Act .
173,
197
sect. 2
*■ •••
150
India Stock —
sect. 4
40.
173
Companies Clauses Consolidation Act
37
Improvement of Land Act .
..
34
sect. 60
. 16, 35, 36,
173
„ 61 ...
.. 16, 40,
173
Mortgage Debenture Act .
35
XXXVl
Table of Statutes.
DAIB.
28 & 29 Vict. 0. 78 (1865)
30 & 31 Vict. 0. 48 (1867)
30 & 31 Vict. 0.132(1867)
31 & 32 Vict. c. 40 (1868)
31 & 32 Vict. c. 119 (1868)
32 & 33 Vict. 0.106(1869)
33 & 34 Vict. c. 23 (1870)
33 & 34 Vict. c. 71 (1870)
34 & 35 Vict. 0. 27 (1871)
34 & 35 Vict. c. 47 (1871)
35 & 36 Vict. 0. 44 (1872)
36 & 37 Vict. c. 32 (1873)
36 & 37 Vict. c. 66 (1873)
37 & 38 Vict. c. 3 (1874) .
37 & 38 Vict. c. 78 (1874)
37 & 38 Vict. c. 78 (1874)
38 & 39 Vict. c. 83 (1875)
38 & 39 Vict. 0. 87 (1875)
40 & 41 Vict. c. 2 (1877) .
40 & 41 Vict. c. 51 (1877)
40 & 41 Vict. c. 59 (1877)
42 & 43 Vict. c. 60 (1879)
43 Vict. c. 10 (1880) . .
43 & 44 Vict. 0. 8 (1880) .
PAOB
Mortgage Debenture Act —
sect. 40 ... ... 16,
35, 39, 173
Sale of Land by Auction Act
... 69
Investment by Trustees —
sect. 2
15,17
Partition Act-
sect. 7 123,124,173
Regulation of Railways Act —
sect. 13
... 22
India Stock
... 16.
Forfeiture Act —
sect. 1
... 160
„ 6
... 160
„ 8
... 160
„ 9
... 160
„ 10
... 160
National Debt Act —
sect. 29
40,173
Debenture Stock Act
17, 173
sect. 1
35,37
Metropolitan Board of Works —
sect. 13
... 17
Court of Chancery (Funds) Act
... 163
sect. 3
... 167
India (Loan) Act ...
... 16
Judicature Act —
sect. 17
... 156
„ 18
... 156
„ 19
... 121
„ 25
... 146
„ 100
121, 149
India (Loan) Act ...
... 36
Eeal Property Limitation Act —
sect. 8
10,11
Vendor and Purchaser Act —
sect. 1
... 72
„ 2
70, 71, 72
„ 3
70, 173
„ 4
... 112
„ 6
72, 173
Local Loans Act ... 26,28,29,
, 31, 32, 35,
38
sect. 5
... 26
„ 21
40,173
„ 27 17,
35, 39, 173
Land Transfer Act 66, 111, 202, 231
sect. 25
... 232
„ 26
... 232
„ 95
... Ill
„ 96
... Ill
Treasury Bills
... 29
India (Loan)
... 16
Colonial Stock Act
... 191
sect. 12
40, 173
India (Loan)
India (Loan)
... 16
... 16
Isle of Man Loans Act
28, 31, 35
sect. 7 17,
35, 39, 173
Table of Statutes. xxxvii
DATS. STTBJEOT-MATTER, OK SHOET TITLE. PAGE
44 & 45 Vict. 0. 41 (1881) Conveyancing and Law of Property Act
16, 67, 69, 82, 112,
45 & 46 Vict. c. 38 (1882)
45 & 46 Vict. c. 39 (1882)
45 & 46 Vict. c. 50 (1882)
45 & 46 Vict. c. 75 (1882)
46 & 47 Vict. c. 52 (1883)
47 & 48 Vict. c. 61 (1884)
48 & 49 Vict. c. 28 (1885)
50 & 51 Vict. c. 78 (1887)
51 & 52 Vict, c, 41 (1888)
51 & 52 Vict. c. 43 (1888)
157
158, 168
sect. 2 ... ... 165
166, 167
„ 3
71,72
„ 4 107
109, 121
„ 5
... 146
„ 13
... 71
„ 19
68, 150
„ 30 ... 87, 107, 109,
112, 116,
126, 165
„ 31 ... 50, 52, 58, 59, 60, 61,
67
157, 173
„ 32 62,
157, 173
„ 33 138,
139, 173
„ 34
64, 173
„ 35
67, 173
„ 36
82, 173
„ 37 83, 84, 85, 173
„ 38 85,87,88,173
„ 47 89,90,91
„ 52
... 86
„ 56
75,76
» 65
... 36
,, 66
71,72
„ 70
... 143
Settled Land Act ... 52, 80, 126,
150, 156,
157, 158
sect. 3
... 151
„ 4
... 151
„ 17
... 151
,, 21
... 38
„ 38
56, 157
„ 60
... 151
Conveyancing Act —
Beet. 1
... 167
„ 3
... 71
„ 5 50,55
, 58, 174
,. 6
62,86
,, 8
... 91
„ 9
... 91
., 11
... 36
Municipal Corporations
... 26
Married "Women's Property Act
73, 100
sect. 18
... 100
„ 24
... 100
Bankruptcy Act ...
... 220
sect. 147
96, 174
Judicature Act —
sect. 14 ... 117, 123,
127, 135
India (Money)
... 16
Copyhold Act —
sect. 45
107, 116
Local Government Act
... 26
sect. 70
... 17
County Court Act
... 219
sect. 67
... 156
„ 68
... 156
xxxviii Table of Statutes.
DATE. StTBJECT-JCATTEE, OB SHORT TITLE, PAGE
51 & 52 Vict. c. 59 (1888) Trustee Act 46, 48, 70, 97, 102, 168, 174
Beet. 2 ... ... ... 76
,. 3 70
„ 4 42
„ 5 46
„ 6 152,153
,, 7 78
„ 9 17,35,30
„ 10 80
„ 11 80
„ 12 76, 77, 78
52 & 53 Vict. 0. 32 (1889) Trust Investment Act 15, 16, 17, 18, 26,
30, 32, 36, 174
52 & 53 Vict. c. 47 (1889)
52 & 53 Vict c. 50 (1889)
52 & 53 Vict. c. 63 (1889)
53 & 54 Vict. c. 5 (1890) .
53 & 54 Vict. c. 19 (1890)
53 & 54 Vict. c. 23 (1890)
53 & 54 Vict. c. 69 (1890)
54 & 55 Vict. c. 39 (1891)
54 & 55 Vict. c. 67 (1891)
55 & 56 Vict. c. 13 (1892)
55 & 56 Vict. c. 39 (1892)
56 & 57 Vict. c. 71 (1893)
57 & 58 Vict. c. 46 (1894)
sect. 1
... 174*
„ 3
15, 18, 36
„ 4
... 31
„ 5
... 32
„ 6
... 34
„ 9
18, 167
„ 13
... 156
Palatine (Dourt of Burham Act —
Beet. 8
156,174
Local Government (Scotland)
Act ... 26
Interpretation Act 26, 28,
121, 126, 144,
149, 164
, 165, 183, 221
sect. 3
... 165
„ 11
... 170
„ 13
... 143
„ 15
... 26
„ 18
24, 25, 144
„ 19
... 57
„ 38
158, 170
Lunacy Act
105, 106
Beet. 104 ...
... 142
„ 116
... 106
„ 128
54, 88, 98, 105
„ 129
54, 98, 105
„ 135
115, 121
„ 140
... 174
„ 143
105, 107
Trustees Appointment Act —
sect. 3
51, 142
Chancery of Lancaster Act . . .
... 156
Settled Land Act ... 52, 150, 156, 158
sect. 5
... 151
„ 17
157, 158, 174
Stamp Act —
sect. 62
... 64
Statute Law Revision Act ...
... 156
Conveyancing or Law of Property Act —
aect. 6
50, 58, 174
National Debt (Stockholder's Belief)
Act-
sect. 3
... 133
Sale of Groods Act-
sect. 58
... 69
Copyhold Act —
sect. 88
107, 116
Table of Statutes. xxxix
SATB. SCBJSCT-UATTEB, OB SHOUT TITLE, FAGE
59 & 60 Vict. c. 8 (1896) . Life Aseurance Companies (Payment
into Court) Act ... ... ... 146
59 & 60 Vict. c. 48 (1896) Light Eailways Act ... ... 29
60 & 61 Vict. c. 65 (1897) Land Transfer Act 66, 111, 202, 231
sect. 1 ... ... ... 107
61 & 62 Vict. c. 37 (1898) Local Government (Ireland) Act ... 26
62 & 63 Vict, 0. 20 (1899) Bodies Corporate (Joint Tenancy) Act 57
THE TEUSTEE ACT, 1893,
AND OTHER RECENT STATUTES
RELATING TO TRUSTEES.
INTRODUCTION.
The Trustee Act, 1893, attempts no codification of the law-
relating to trustees. The title, " An Act to consolidate Enact-
ments relating to Trastees," is a sufficient indication that
the Act differs widely in extent from such measures as the
Bills of Exchange Act, 1882, the Partnership Act, 1890, and
the Sale of Goods Act, 1893, which are respectiyely intituled,
" An Act to codify the Law relating to Bills of Exchange " ; " An
Act to declare and amend the Law of Partnership " ; and " An
Act for codifying the Law relating to the Sale of Goods."
The distinction is one of considerable importance. In con-
struing a statute intended to he a code, the proper course is,
in the firtt instance, to examine the language of the statute,
and to ask what is its natural meaning, uninfluenced by any
considerations derived from the previous state of the law : per
Lord HerscheU, in Barai of England v. Vagliano (1891) A.C. 144.
In the case of a measure which is not a code, but is merely a
consolidating Act, the mode of construction is entirely different.
Knowledge of the previously existiug law as established by
statutory enactments and reported decisions is, in this case,
essential, Mitchell v. Simpson, 25 Q.B.D. 183, re Budgett (1894)
2 Ch. 557, and will often make it clear that the true meaning
of the Act is not what otherwise might have been inferred
merely from its wording.* •
* The following canons for the construction of statutes in general were
laid down in HeydorCs Case (3 Oo. Rep. at p. 7 V) : —
" For the sure and true interpretation of all statutes in general (be
they penal or beneficial, restrictive or enlarging of the common law) four
things are to be discerned and considered —
"(1) What was the common law before the making of the Act?
" (2) What was the mischief and defect for which the common law
did not provide ?
B
2 Introduction.
The Act of 1893 contemplates little more than the collection
in one statute of provisions relating to trustees, formerly
contained in many scattered Acts. Nor is the pollection
complete, for sections 1 and 8 of the Trustee Act, 1888, have
not been incorporated in the Act.
In collecting the various statutory enactments, some attempt
at classification has been made, and the Act is divided into
four parts, named, "I. Investments," "II. Various Powers
and Duties of Trustees," " III. Powers of the Court," and
" IV. Miscellaneous and SupplementaL" This classification
appears to be due to the accident of the grouping of the various
provisions in the earlier Acts rather than to any consideration
of logical sequence or practical convenience.
For example, it might be expected that the sections dealing
with the powers of trustees to invest upon mortgage, to sell,by
auction, and to sell mines apart from the surface, would have
been found in the same part of the Act. But, in fact, the first
is contained in Part I., the second in Part II., and the third in
Part III. Section 8 subsection 3, and section 15, each of
which makes provision as to the title which a trustee purchas-
ing land should require, are contained, the former in Part I., and
the latter in Part 11. Section 25, dealing with the appointment
of new trustees by the Court, is contained in Part III. ; section
10, dealing with appointments by individuals, is contained in
Part II. ; and section 47, applying those provisions to the case
of Settled Land Act trustees, is contained in Part IV. Sections
40 and 49, eacjh of which contains provisions as to the validity
of vesting orders, are contained, the former in Part III., and the
latter in Part IV. of the Act. Again, the section of the Act of
1893, headed " Liability for loss by reason of improper invest-
ments," is contained in Part I. of the Act ; the section headed
" Implied indemnity of trustees " is contained in Pa^t II. ; the
section headed " Power to make beneficiary indemnify for
breach of trust " is contained in Part III. ; and the section
headed " Indemnity " is contained in Part IV. ; while the
section of the Trustee Act, 1888, headed " Statute of limita-
tions may be pleaded by trustees," is left unrepealed, and finds
no place in the Act of 1893.
Since each section of the Act must be considered in the
" (3) What remedy the Parliament hath resolved and appointed to
cure the disease of the commonwealth ? and
" (4) The true reason of the remedy?
And then the ofBce of all the jndges^s always to make such oonstruo-
tion as shall suppress the mischief and advance the remedy, and to
suppress subtle inventions and evasions for continuance of the mischief
and pro privaio commodo, and to add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro bono
publico"
See also Magdalen College Case, 11 Co. Eep. p. 73 6; re Bethlem
Hospital, 19 Eq. 458 ; Cope v. Doherty, 4 K. & J. at p. 374 ; Phillips v.
Bees, 24 Q.B.D. at p. 20 ; Pelton v. Harrison (1891) 2 Q.B. 422 ; Biver
Wear Commissioners v. Adamson, 2 A.C. 743.
Introduction. 3
light of previoTis decisions, and since their capricious grouping
obscures the relation of one section to another, the Act has done
little to simplify the task of those consulting the statutory
"provisions relating to trustees. The continued existence of
sections 1 and 8 of the Act of 1888, and the passing of the
subsequent Acts of 1894, 1896, and 1900, still further add to
the difficulty of the subject.
TEUSTEE ACT, 1888.
51 & 52 Vict. c. 59.
An Act to amend the Law relating to the Duties,
Powers, and Liability of Trustees.
[24tli December, 1888.]
The whole of this Act, except sections 1 and 8, is repealed
'by the Act of 1893 ; see section 51 of 1893 Act and Schedtde,
post, pp. 170, 172.
Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority
of the same, as follows ; that is to say —
Sect. 1. Section 1. — (l.) This Act may be cited as the
— n Trustee Act, 1888.
extent, and (2.) This Act shall not extend to Scotland.
definition. ^3,) For the purposes of this Act the expression
" trustee " shall be deemed to include an executor or
administrator and a trustee whose trust arises by
construction or implication of law as well as an
express trustee, but not the oflScial trustee of
charitable funds.
(4.) The provisions of this Act relating to a
trustee shall apply as well to several joint trustees
as to a sole trustee.
Subsection 2. — See the notes to section 52 of the Trustee
Act, 1893, post, p. 171 ; and see also notes at pp. 21, 178, 190.
Subsection 3. — Cf. section 50 of the Trustee Act, 1893,
post, p. 163 ; and see notes on the definition in that section of
"trustee." On the question who is a trustee within the
meaning of section 8 of this Act, see infra, p. 6.
Subsection 4. — See post, pp. 7, 10.
Trustee Act, 1888. 5
Section 8. — (l.) In any action or other pro- Sect. 8.
ceeding against a trustee or any person claiming
through him, except where the claim is founded u^itetioM
upon any fraud or fraudulent breach of trust to™aytie
which the trustee was party or privy, or is totruBtees. ^
recover trust property, or the proceeds thereof still
retained by the trustee, or previously received by
the trustee and converted to his use, the following
provisions shall apply : —
(a) All rights and privileges conferred by any
statute of limitations shall be enjoyed in
the like manner and to the like extent as
they would have been enjoyed in such
action or other proceeding if the trustee or
person claiming through him had not been
a trustee or person claiming through him.
(b) If the action or other proceeding is brought
to recover money or other property, and
is one to which no existing statute of
limitations applies, the trustee or person
claiming through him shall be entitled to
the benefit of and be at liberty to plead the
lapse of time as a bar to such action or
other proceeding in the like manner and
to the like extent as if the claim had been
against him in an action of debt for money
had and received, but so nevertheless that
the statute shall run against a married
woman entitled in possession for her
separate use, whether with or without
a restraint upon anticipation, but shall not
begin to run against any beneficiary unless
and until the interest of such beneficiary
shall be an interest^n possession,
(2.) No beneficiary, as against whom there
would be a good defence by virtue of this section,
shall derive any greater or other benefit from a
judgment or order obtained by another beneficiary
than he could have obtained if he had brought such
action or other proceeding and this section had been
pleaded.
6 Tetjstee Act, 1888.
*
Sect. 8. (3.y This section shall apply only to actions or
other proceedings commenced after the first day of
January one thousand eight hundred and ninety,
and shall not deprive any executor or administrator
of any right or defence to which he is entitled under
any existing statute of limitations.
"Action or other Proceeding against a Trustee." — It has
been said (re Ghcupman (1896) 1 Ch. at p. 326) that a sammons
by one trustee to ascertain the liability of the trustees in
respect of a breach of trust is not a proceeding "against a
trustee." It is submitted that any proceeding in which the
liability of the trustee could be declared or enforced is a
proceeding against the trustee for the purposes of the section.
In the case of re Cornish (1896) 1 Q. B. 99, there is a
dictum of Esher, M.R., to the effect that the section only applies
■when a claim is made upon a trustee for the payment of money,
and not to a claim for an account for the purpose of showing
whether any further claim can be made upon him. The point
was not necessary for decision, and the dictum is inconsistent
with re Page (1893) 1 Ch. 304, in which North, J., held that
the Act applied to a summons asking for the usual accounts in
an administration action, dissenting from the argument addressed
to him, that the Act was not intended to relieve trustees from
the necessity of accounting to their cestuis que trust, and that it
could only be used as a bar to an application for payment. See
also How V. Earl Winterton (1896) 2 Ch. 626.
"Trustee." — See definition in section 1, supra. Directors
of a company are trustees for the company of assets which
have come into their hands, or which are under their control.
Kingston Cotton Mill Go. (1896) 1 Ch. 331, at p. 347 ; Forest of
Bean CoaVCo., 10 CD. 450 ; Ferdval v. Wright (1902) 2 Oh.
421. In respect of dealings with such assets they are trustees
within the meaning of this section. Lands Allotment Co, (1894)
1 Ch. 616 (ultra vires investment) ; National Bank of Wales, Ltd.
(1899) 2 Ch. 629, at p. 663 (dividends paid out of capital);
S.C. sub. nom. Dovey v. Gory (1901) A. C. 477, at p. 489 ;
Whitwam v. WatJcin, 78 L.T. 188 (ultra vires purchase).
A husband who takes possession of his wife's separate
estate is a trustee for her, Wassell v. Leggatt (1896) 1 Ch. 654,
in the absence of clear evidence of a gift, re Flamank, 40
CD. 461.
The section does not apply to a trustee in bankruptcy called
on to render accounts to the Board of Trade. Be Cornish (1896)
1 Q.B. 99.
Mortgagees who have sold under a power of sale are trustees
■within the section, of the surplus proceeds. Thorne v. Heard
(1894) 1 Ch. 599 ; see p. 607 ; S.C. (1895) A.C 498.
As to executors, see infra, p. 10, 11.
" Any Person claiming through him." — These words mean,
Trustee Act, 1888. 7
not his cestuis que trust, but his executors, administrators, or Sect. 8.
assigns. Leahy v. de Moleyns (1896) 1 I.E. 206.
" Except where the Claim is founded upon any Fraud," etc.
— The fraud must be that of, or be in some way imputable to,
the person who invokes the aid of the statute, Thome v. Heard
(1895) A.O. 495.
In order to charge any person with a fraud which has not
been personally committed by him, the agent who has com- ,
mitted the fraud must have committed it while acting withia
the scope of his authority, while doing something and purport-
ing to do something on behalf of the principal. Thome v. Heard,
supra.
" To which the Trustee was Party or Privy." — It is only
by a misuse of language that a person who, in fact, knows
nothing of the fraudulent conduct of another, and who in no
way benefits by it or ratifies it, can be said to be party or privy
to it. One person may be, and often is, liable in law for frauds
which he has not committed, but to say that he is party or
privy to them is quite another matter, and is only true when
he has personally participated in them : per Lindley, L. J., Thome
V. Heard (1894) 1 Ch., at p. 606. The words indicate moral
complicity : per Kay, L. J., ibid., at p. 608. See also S.O. (1895)
A.C. 495.
" Or is to recover Trust Property . . . still retained." — The
word " stiU " refers to the commencement of the action or other
proceeding in which the question arises. Thome v. Heard
(1894) 1 Ch. 599 ; (1895) A.O. 495.
A trustee may be liable to make good trust money as if it
were still in his hands, although he has, in fact, parted with it.
(Of. cases referred to in notes to section 9 of the Trustee Act,
1893, post, p. 47.) But in construing this statute the excep-
tion is confined to cases in which, at the commencement of the
action or other proceeding, the trustee actually has in his hands
or under his control the trust property or the proceeds thereof
sought to be recovered. Thome v. Heard, supra. If it is lost
either by the trustee's negligence or unauthorised dealing with
it, the exception does not apply. Ibid., How v. Lord Winterton
(1896) 2 Ch. 626 ; re Timmis (1902) 1 Ch. 176.
The exception does not apply to a case where a trustee
retains a share of the trust estate, other than the share in
respect of which a breach of trust has been committed. Be
Timmis (1902) 1 Oh. 176.
" Previously received . . . and converted to his Use." — This
exception probably applies to the case of money entrasted to a
firm as trustees and converted to the use of the firm, although
the member of the firm sued had neither received the money
nor converted it to his own use ; for under section 1 the pro-
visions of the Act apply as well to several joint trustees as to
a sole trustee. See Moore v. Knight (1891) 1 Ch. 547, at p. 553.
These words mean money which the trustee can be called
8 Tetjstbe Act, 1888.
Sect. 8. iipon to refund. Thus, where trustees lend trust money on
improper security to a person who is indebted to one of the
trustees, and out of the money so raised on mortgage the debt
to the trustee is discharged, the transaction, if honest, is not
a conversion to his own use by the trustee. Be Gurney (1893)
1 Ch. 590.
Subsection 1 (a). — The meaning of this subsection has been
the subject of much discussion. In re Bowden, 45 CD. 444,
Fry, L.J. (sitting as an additional judge of first instance), said,
with reference to this clause, "If a person had not been a
trustee, he could not be sued for a breach of trust ; and there
is no right or privilege that I am aware of conferred by any
statute of limitations in respect of a breach of trust." With
reference to this remark, Lindley, L. J., in Sow v. Earl Winter-
ton (1896) 2 Ch. 626, observed, that to exclude the operation
of clause (a) in all cases on the short ground stated by Fry,
L.J., would be to deprive clause (a) of all meaning whatever.
Eigby, L.J., explained clause (a) as follows: — The clause
assumes there is a right of action against the trustee. That
must be founded upon some act or omission of his which would
be, from the fact of his being a trustee, a breach of trust.
Clause (a) has to do with remedies only, not with causes of
action. A trustee who undertakes a trust agrees to perform
that trust ; discard the idea of breach of trust, he is still guilty
of breach of duty, and for the purposes of clause (a) he is to be
treated as though the breach of trust were nothing more or
less than a breach of duty by reason of some act or omission
of his. The duty may be thrown on him by virtue of his
simple contract to undertake the trust, or by reason of his
covenant to undertake it, as where the duty is thrown on him
by a deed. Then you must look to the appropriate Act of
Limitations to ascertain the period for the running of the
statute. How v. Earl Winterton, supra. No covenant by a
trustee is implied merely from his executing a deed containing
an appointment of him as trustee, and a declaration by him
that he accepts the office. Holland v. Holland, 4 Ch. 449. It is
a question of intention of the parties whether a deed should
operate as a covenant or not. Isaacson v. Harwood, 3 Ch. 225.
Where the trustee has not covenanted to perform the trust,
the period of limitation for an action on an implied promise, or
an action on the case for breach of duty, or an action for an
account, is six years. See per Lindley, L. J., How v. Earl Winter-
ton, supra, at p. 639. If the form of trust instrument is a
covenant by the trustee to hold the trust property on specified
trusts for specified persons, it is conceived that (if the construc-
tion suggested by Rigby, L.J., supra, be the correct one) the
period of limitation for breach of trust would be twenty years.
It would seem, therefore, that unless the trustee have covenanted
to perform the trusts, the period of limitation will be the same
whether clause (a) or clause (6) apply.
The form of order for an account by trustees entitled to the
benefit of the section will be fc^ind in re Davies (1898) 2 Ch. 142.
Trustee Act, 1888. 9
Subsection _ 1 (5). " Brought to recover Money."— These Sect. 8.
"words are satisfied if the action is to make the trustee pay
money into a fund against which the applicant has a claim,
How V. Earl Winterton (1896) 2 Ch. 626, at p. 642, or for
accounts preliminary to an application for payment of money
{swpra, p. 6).
" And is one to which no Existing Statute applies." — The
following cases have been held to fall within this clause, viz.
action hy newly appointed trustee against old trustees to make
good losses from improper investments, re Bowden, 45 CD.
444 ; the like action by a beneficiary, re Ourney (1893) 1 Ch.
590; re Somerset (1894) 1 Ch. 231; Mara t. Browne (1895) 2
Ch. 69 ; action by beneficiary' to make good losses from failure
to carry out trust for conversion, re Swain (1891) 3 Ch. 233;
action by beneficiary for administration "where the whole estate
had been disposed of upwards of six years previously, re Tage
(1893) 1 Ch. 304 ; action by reversioners where capital of the
trust fund had been paid to the tenant for life, re Tvmmis
(1902) 1 Ch. 74 ; but see the construction put upon the section
by Eigby, L.J., in How v. Earl Winterton, supra {ante, p. 8),
under which some of the above cases would appear to fall under
clause (a).
" An Action of Debt for Money had and received." — Under
section 3 of 21 Jac. 1, c. 16 (Limitation Act, 1623), the period
of limitation is six years after the cause of action arose. See
How V. Earl Winterton (1896) 2 Ch. 626; re Somerset (1894)
1 Ch. 231, at p. 255 ; re Timmis (1902) 1 Ch. 176. This is,
however, subject to 9 Geo. IV., c. 121 (the Statute of Frauds
Amendment Act, 1828), which provides for cases being taken
out of the statute by acknowledgment in writing, part payment
of principal, or payment of interest. Payment of interest direct
by the mortgagee to the tenant for life (which amounts to pay-
ment by the mortgagee to the trustees, and by the trustees to
the tenant for life) is not an admission or acknowledgment
sufficient to take the case out of the statute. Be Somerset (1894)
1 Ch. 231 ; Mara v. Browne (1895) 2 Ch. 69, at p. 95.
" Shall not begin to run . . . unless and until the Interest
. . . shall be an Interest in Possession." — Where a beneficiary
takes successive interests ; e.g., first a life interest to a married
woman during the joint lives of herself and her husband, and
secondly a life interest on her husband's death, although in
respect of her first interest her rights may be barred, in respect
of her second interest her rights will only be barred after the
expiration of the statutory period commencing from the coming
into possession of such second interest. Mara v. Browne (1895)
2 Ch. 69, at p. 95. The judgment on this point was not reversed
on appeal. See S.O. (1896) 1 Ch. 199. The section has in no
way altered the principles which determine the time at which
a cause of action arises. Thorne v. Heard (1894) 1 Ch. 699 ;
Moore V. Knight (1891) 1 Ch. 547. In the case of a breach of
trust, a cause of action founded upon it accrues to the cestuis
10 Trustee Act, 1888.
Sect. 8. gwe tnist upon the commission of the breach, and not from its
discovery, nor from the time when the loss occurs. Be Swam
(1891) 3 Ch. 233; Thome v. Seard, supra; Howell v. Toung, 5
B. & 0. 269 ; Smith v. Fox, 6 Hare 386 ; see Thomson v. Lord
Clanmorris (1900) 1 Ch. at p. 726. So, where trustees com-
mitted an innocent breach of trust by inyesting on mortgage of
property of insufficient value, time ran against the beneficiary
entitled in possession from the time when the investment was
made. Be Somerset (1894) 1 Ch. 231.
Where an annuity was charged upon a fund composed in
part of accumulations of rents of certain property during a
term preceding the commencement of the annuity, and in
breach of trust the trustee neglected to make the accumula-
tions, time ran against the annuitant from the date at which
the annuity commenced. How v. Earl Winterton (1896) 2 Ch.
626, at p. 637.
Notwithstanding that an action is not barred under this
section, the plaintiff may still be refused relief on the ground
of laches ; e.g., although time does not run against a beneficiary
until his interest is in possession, he may be barred, if the
circumstances are such as to show that he was guilty of laches
in not suing while his interest was in expectancy. Be Taylor,
Atkinson v. Lord, 81 L.T. 812 ; and see Boberts v. Tunstall,
4 Hare 257.
It has been suggested that where a fraudulent breach of
trust is committed by one of several trustees, time may not
run in favour of his innocent co-trustees until discovery of the
fraud : per Stirling, J., in Moore v. Knight (1891) 1 Ch. 547,
at p. 555. It is submitted, however, that as the claim against
the innocent co-trustee is not founded on fraud as against him,
time runs from the commission of the breach of trust.
Where one trustee claims contribution from a co-trustee
in respect of a liability incurred from loss occasioned by their
joint default, time does not begin to run till the date of the
judgment establishing the liability of the trustee seeking con-
tribution. Bohinson v. Harkin (1896) 2 Ch. 415.
Subsection 3. " Shall not deprive any Executor or Admini-
strator of any Right or Defence to which he is entitled under
any Existing Statute of Limitations."— Under section 8 of the
Real Property Limitation Act, 1874, no action or other pro-
ceeding can be brought to recover any legacy, but within
twelve years next after a present right to receive the same
shall have accrued to some person capable of giving a dis-
charge for the same, if no principal or interest shall have
been paid or acknowledgment in writing given.
Under that Act, the executor, notwithstanding that he is
constructively a trustee, re Davis (1891) 3 Ch. 119 ; re Lacy
(1899) 2 Ch. 149, has a defence, although the legacy is still
retained by the executor, or previously received by him and
converted to his use — circumstances which would preclude him
from relying on the present section.
Trustee Act, 1888. 11
On the other hand, it may he necessary for a defendant Sect. 8,
to show that the present section applies, rather than section 8
of the Act of 1874, so that he may he in a position to rely on
snhsection 1 (6). Thus, where a residue is given to persons
■who are named both executors and trustees, and a breach of
trust is committed, the question arises whether the trustees
and executors are liable, qua executors, for not distributing
the residue, or as trustees for breach of trust. If the executors
and trustees had been different persons, the duties of the
executors would have been to pay the debts, legacies, and
funeral and testamentary expenses of the testator, and pay
the residue to the trustees. Hence, when the executors and
trustees are the same person, they cease to hold the assets,
qv,& executors, when they have paid the debts, legacies, and
expenses, and thereupon become trustees ; and where they
wrongfully deal with the residue they are liable as trustees,
and an action against them is one " to which no existing
statute of limitations applies." They are not to be treated
as executors sued for a legacy within section 8 of the Act of
1874. Be Timmis (1902) 1 Ch. 176; re Swain (1891) 3 Ch.
233; re Fage (1893) 1 Ch. -304.
TEUSTEE ACT, 1893.
56 & 57 Vict. c. 53.
An Act to consolidate Enactments relating to Trustees.
[22nd September, 1893.]
" To consolidate." — As to the distinction between a con-
solidating Act and a Code, see Introduction, ante, p. 1.
Be it enacted by the Queen's most Excellent Majesty,
by and witli the advice and consent of tbe Lords
Spiritual and Temporal, and Commons, in tbis
present Parliament assembled, and by tbe authority
of the same, as follows : —
Part I.
INVESTMENTS.
Sect. 1. Section 1. — A trustee may, unless expressly for-
bidden by the instrument (if any) creating the
Authorised trust, invest any trust funds in his hands, whether
mvestments. ,,ij. • .. c • ■ . , •
at the time m a state or investment or not, m
manner following, that is to say :
(a) In any of the parliamentary stocks or public
funds or Grovernment securities of the
United Kingdom :
[h) On real or heritable securities in Great
Britain or Ireland : ,
(c) In the stock of the Bank of England or the
Bank of Ireland :
{d) In India three and a half per cent, stock
and India three per cent, stock, or in any
other capital stock which may at any time
hereafter be issued by the Secretary ol
Teustee Act, 1893. 13
State in Council of India under the Sect. 1.
authority of Act of Parliament, and
charged on the revenues of India :
(e) In any securities the interest of which is for
the time heing guaranteed by Parliament :
(/) In consolidated stock created by the Metro-
politan Board of Works, or by the London
County Council, or in debenture stock
created by the Receiver for the Metro-
politan Police District :
(g) In the debenture or rentcharge, or guaranteed
or preference stock of any railway company
in Great Britain or Ireland incorporated
by special Act of Parliament, and having
during each of the ten years last past
before the date of investment paid a
dividend at the rate of not less than three
per centum per annum on its ordinary
stock :
(h) In the stock of any railway or canal company
in Grreat Britain or Ireland whose under-
taking is leased in perpetuity or for a
term of not less than two hundred years
at a fixed rental to any such railway
company as is mentioned in subsection
(g), either alone or jointly with any other
railway company :
(^) In the debenture stock of any railway
company in India the interest on which is
paid or guaranteed by the Secretary of
State in Council of India :
(j) In the " B " annuities of the Eastern Bengal,
the East Indian, and the Scinde Punjaub
and Delhi Railways, and any like annuities
which may at any time hereafter be created
on the purchase of any other railway by
the Secretary of State in Council of India,
and charged on the revenues of India,
and which may be authorised by Act of
Parliament to be accepted by trustees in
lieu of any stock held by them in the
14 Trustee Act, 1893.
Sect. 1. purchased railway ; also in deferred
anrmities comprised in the register of
holders of annuity Class D. and annuities
comprised in the register of annuitants
Class C. of the East Indian Railway
Company :
[k) In the stock of any railway company in
India upon which a fixed or minimum
dividend in sterling is paid or guaranteed
by the Secretary of State in Council of
India, or upon the capital of which the
interest is so guaranteed :
(l) In the debenture or guaranteed or preference
stock of any company in Great Britain or
Ireland, established for the supply of water
for profit, and incorporated by special Act
of Parliament or by Eoyal Charter, and
having during each of the ten years last
past before the date of investment paid
a dividend of not less than five pounds
per centum on its ordinary stock :
(m) In nominal or inscribed stock issued, or to
be issued, by the corporation of any
municipal borough having, according to
the returns of the last census prior to the
date of investment, a population exceeding
fifty thousand, or by any county council,
. under the authority of any Act of Parlia-
ment or Provisional Order :
(w) In nominal or inscribed stock issued or to
be issued by any commissioners incor-
porated by Act of Parliament for the
purpose of supplying water, and having
a compulsory power of levying rates over
an area having, according to the returns
of the last census prior to the date of
investment, a population exceeding fifty
thousand, provided that during each of the
ten years last past before the date of
investment the rates levied by such com-
missioners shall not have exceeded eighty
Trustee Act, 1893. 15
per centum of the amount authorised by Sect. 1.
law to be levied :
(0) In any of the stocks, funds, or securities for
the time being authorised for the invest-
ment of cash under the control or subject
to the order of the High Court,
and may also from time to time vary any such
investment.
The provisions of this section have 1)6611 extended to certain
colonial stocks by the Colonial Stock Act, 1900 (post, p. 191).
This section replaces, with a few slight alterations, section
3 of the Trust Investment Act, 1889, (52 & 53 Vici c. 32),
which is repealed by the present Act. (See section 51, and
Schednle, infra.)
The Trust Investment Act, 1889, was itself a consolidating
Act. It replaced and extended the provisions of most, but
not all, of the numerous statutes which had, from time to time,
been passed to relieve trustees from the strictness of the rule
of the Court of Chancery. That rule was that trust funds
should be invested in Grovernment Annuities, and Government
Annuities only. Of the Government Annuities, the three per
cent. Consolidated Annuities were adopted by the Court as
holding the balance most fairly between the interests of a
tenant for life and a remainderman. Howe v. Lord Dartmouth,,
7 Ves. at p. 451.
Previous Enactments. — The enactments in force before the
Trust Investment Act, 1889, were as follows : —
(1) 4 & 5 William 4 c. 29, enacting that where trustees
were expressly authorised to lend money on real securities in
England, Wales, or Great Britain, they might lend on real
securities in Ireland; but if any minor, unborn child, or person
of unsound mind was interested, such an investment could only
be made with the sanction of the Court of Chancery. This
Act (known as Lynch's Act) was superseded by 22 & 23 Vict.
c. 36, section 32 {post), and repealed by the Trust Investment
Act, 1889.
(2) 22 & 23 Vict. c. 35 (Lord St. Leonards's Act), section
32, enacting that a trustee, executor, or administrator, if not
expressly forbidden by some instrument creating his trust to
invest any trust fund on real securities in any part of the
United Kingdom, or on the stock of the Bank of England, or
Ireland, or on East India Stock, might invest such trust fund
on such securities or stock.
The section was repealed by the Trust Investment Act,
1889.
In consequence of decisions refusing to recognise invest-
ment on stock created under the India Loan Act (22 & 23 Vict.
c. 39), an Act (30 & 31 Vict. c. 132) was passed, extending
the power of investment to any East India Stock charged on
16 Trustee Act, 1893.
Sect. 1. the revenues of India whensoever created. The last-mentioned
Act was repealed by the Trust Investment Act, 1889.
Subsequent East India Loan Acts, viz. 32 & 33 Vict. c. 106,
36 Vict. c. 32, 37 Vict. c. 3, 40 & 41 Vict. c. 61, 42 & 43
Vict. c. 60, 43 Vict. c. 10, and 48 & 49 Vict. c. 28, all pro-
vided that any capital stock thereunder created should be
deemed to be East India Stock within the Act 22 & 23 Vict.
• c. 35, section 32, unless and until Parliament should otherwise
provide.
(3) 23 & 24 Vict. c. 38, section 10, enacting that the Lord
Chancellor might make General Orders, from time to time,
as to the investment of cash under the control of the Court,
either in the Three per Cent. Consolidated, or Reduced, or New
Bank Annuities, or in such other stocks, funds, or securities,
as he should think fit; and section 11, enacting that, when
any such General Order had been made, trustees, executors,
or administrators, having power to invest their trust funds in
Government securities, or upon parliamentary stocks, funds,
or securities, or any of them, might invest such trust funds in
any of the stocks, funds, or securities in or upon which, by
such General Order, cash under the control of the Court might
from time to time be invested.
The latter section was repealed by the Trust Investment
Act, 1889.
(4) 23 & 24 Vict. c. 145 (Lord Cranworth's Act), section
25, enacting that trustees under any instrument, dated since
28th August, 1860, might invest in any of the parliamentary
stocks, or public funds, or in Government securities, and
might vary such investments, subject to a proviso, that no
original investment should be made thereunder (except in the
Three per Cent. Consolidated Annuities), and that no change
of investment should be made, where there was a person, under
no disability, entitled in possession to receive the income of
the trust fund for his life, or for any greater estate, without
the consent in writing of such person.
This section was but little used, and vras repealed by the
Conveyancing and Law of Property Act, 1881.
(5) 27 & 28 Vict. c. 114 (Improvement of Land Act, 1864),
section 60, enacting that trustees authorised to lend money
on real securities might invest in any charge, or mortgage of
any charge, under that Act; and section 61 providing that
no charge under that Act should be deemed such an incum-
brance as to preclude a trustee from investing in a purchase
or mortgage of the land charged unless expressly prohibited.
These provisions are repealed by the present Act, and re-
enacted in section 5. See post, p, 34.
(6) 28 & 29 Vict. c. 78 (Mortgage Debenture Act, 1865),
section 40, enacting that trustees, having a general power to
invest on shares, stock, mortgages, bonds, or debentures, of
companies incorporated by or acting under the authority of an
Act of Parliament, might invest on mortgage debentures issued
under that Act.
Trustee Act, 1893. 17
This section is repealed by tlie present Act, and re-enacted Sect. 1.
by section 5. See post, p. 34.
(7) 30 & 31 Vict. c. 132, section 2, enacting that trustees,
executors, and administrators might invest on any securities
the interest of -which was guaranteed by Parliament, to the
same extent and in the same manner as they might invest in
Bast India Stock under 22 & 23 Vict. c. 35, section 32.
This section vras repealed by the Trust Investment Act,
1889.
(8) 34 & 35 Vict. c. 27 (Debenture Stock Act, 1871),
enacting that a trustee having power to invest in the mortgages
or bonds of any railway, or of any other description of company,
might, unless forbidden, invest in debenture stock of a railway
company or such other company as aforesaid.
This Act is repealed by the present Act, and re-enacted by
section 5. See post, p. 34.
(9) 34 & 35 Vict. c. 47, section 13, enacting that a trustee,
executor, or other person empowered to invest money in public
stocks or funds or other Government securities, might, unless
forbidden by the trust instrument, invest in Consolidated Stock
of the Metropolitan Board of Works.
This section was repealed bv the Trust Investment Act,
1889. ^ ^
(10) 38 & 39 Vict. c. 83 (Local Loans Act, 1875), section 27,
enacting that trustees having power to invest in the debentures
or debenture stock of any railway or other company might,
unless forbidden, invest in nominal debentures or nominal
debenture stock issued under that Act.
This section is repealed by the present Act, and re-enacted
by section 5. See post, p. 34.
(11) 43 & 44 Vict. c. 8 (Isle of Man Loans Act, 1880), sec-
tion 7, enacting that trustees having power to invest in securities
in the Isle of Man or Colonial securities might, unless forbidden,
invest in any securities under that Act.
This section is repealed by the present Act, and re-enacted
by section 5. (See post, p. 34).
(12) 51 & 52 Vict. c. 41 (Local Government Act, 1888),
section 70, making provision for the creation of County Stock,
and providing that the Local Government Board might apply
for the purposes of that section, with or without modifications,
any enactments of any Act relating to stock issued by the
Metropolitan Board of Works.
(13) 51 & 52 Vict. c. 59 (Trustee Act, 1888), section 9,
enacting that a power to invest in real securities should be
deemed to authorise, and to have always authorised, an invest-
ment upon mortgage of property held for an unexpired term
of not less than two hundred years, and not subject to any
reservation of rent greater than one shilling per annum, or to
any right of redemption, or to any condition for re-entry, except
for non-payment of rent.
This section is repealed by the present Act, and re-enacted
by section 5. See post, p. 34.
C
18 Trustee Act, 1893.
Sect. 1. (14) Certain Indian Eailway Purchase Acta (see post,
p. 25) enacting, that trustees authorised to invest in guaranteed
stock of Indian railways might invest in "B" annuities of
those railways.
" A Trustee . . . may invest." — The language of section 3
of the Trust Investment Act, 1889, and of the present section
is wide, but it seems reasonably clear that, notwithstanding
the definitions of " trustee " contained in section 9 of the Act
of 1889 and section 50 of the present Act, this section applies
only to trustees who hold funds for investment purposes, and
that a trustee who holds funds not for the purpose of invest-
ment, but as bare trustee, or for the purpose of specific
enjoyment, is not given a power of investment which he did
not previously possess.
Before the Act of 1889 came into operation, trustees who
held money for investment could only invest on the securities
(if any) authorised by the trust instrument, or in Three per
Cent. Consolidated Annuities, or in securities authorised by the
statutory enactments hereinbefore referred to (ante, pp. 16-17).
In the absence of express power to vary investments, trustees
having once selected an investment, could not vary it. Be Warde,
2 J. & H. 191 ; re Cooper (1873) W.N. 87, disapproved by Fry
and Kay, L.JJ., in re Dick, Lopes v. Hume-Dich (1891) 1 Ch.
423, at p. 425.
In re The National BuilMng Society, 43 CD. 431, North, J.,
held that the powers of investment conferred by the Act ol
1889 were larger powers given to trustees who already had
limited power, and that the Act did not apply to trustees who
had no power to invest independently of the Act. It is con-
ceived that the construction adopted by North, J., in that case,
must be applied to the present section. See note to section 4.
infra, p. 34. It may, however, be contended that the decision
of North, J. (which was not cited), is impliedly overruled bj
the case of re Dick, Lopes v. Hume-Dick (1891) 1 Ch. 423, in
H.L. reported as Hume v. Lopes (1892) A.C. 112. This view,
it is submitted, is not correct. In re Dick (supra") the Courl
was dealing with the question whether trust funds, already in
a state of investment, could be dealt with under the Act ol
1889. It was nowhere suggested that the trustees were nol
trustees for investment purposes.
These words will not enlarge a power to set apart specified
funds to answer by their income a particular purpose. Bt
Outhwaite (1891) 3 Ch. 494.
" Any Trust Funds in his Hands whether at the Time ii
a State of Investment or not." — The words " whether at th«
time in a state of investment or not " are taken from the speed
of Lord Macnaghten in Hume v. Lopes (1892) A.C. 112.
Subsection (a). "Parliamentary Stocks, or Public Funds
or Government Securities of the United Kingdom." — "Parlia
mentary stocks " and " public funds " appear to be synonymoui
Trustee Act, 1893. 19
terms, denoting tlie annuities wiicii constitute tiie permanent Sect. 1.
debt of the country. " Government securities " is a wider
term, and formerly included Excliequer bills (Davidson,
2nd edit. vol. iii. p. 23 ; Matthews v. Brise, 6 Beav. 239, 244 ;
HUis Y. Eden, 23 Beav. at p. 548), and would now, it seems,
include Bxcbequer bonds and Treasury bills.
For a list of the public funds or Government securities of
the TJnited Kingdom at the present time, see supplementary
volume. They consist of (1) perpetual annuities, (2) ter-
minable annuities, and (8) unfunded loans.
The terminable annuities (which are not in the market)
could hardly, under any circumstances, form a proper invest-
ment for trust money.
Treasury bills carry no interest, but being purchased at a
discount, in fact bear income. They are open to the objection
that they pass by delivery or delivery and indorsement.
Exchequer bonds carry interest at three per cent. They are
transferable by delivery, and being repayable after short periods,
are unsuitable for permanent investments, though doubtless
a temporary investment in Exchequer bonds or Treasury biUa
is an admissible mode of dealing with trust money in its passage
from one permanent investment to another. See Matthews v.
Brise, 6 Beav. 239, at p. 244; Davidson, 2nd edit. vol. iii.
p. 23.
Subsection (b). " Real Securities." — The word " securities "
imports a loan. See Harris v. Harris, 29 Beav. 107. The
section does not authorise a purchase of real estate.
Trustees frequently make the mistake of buying land, especially
"ground rents," when their only authority is, in fact, to lend
on real security. This leads to some difficulty on a subse-
quent dealing with the property purchased. The beneficiaries
(if sui juris') have a right to elect to keep the land. There-
fore, to make a good title, the conveyance on the re-sale
by the trustee must, if the beneficiaries be all sui juris, be
executed, not only by the trustee, but also by at least one of
the beneficiaries, to show that the beneficiaries have not all
elected to keep the land. Be Patten and Edmonton Guardians,
52 L. J. Ch. 787 ; 48 L.T. 870 ; 31 W.R. 785 ; Power v. Banhs
(1901) 2 Ch. 487, at p. 496. If one or more of the beneficiaries,
however, be incapable of electing, the trustees can make a good
title without the concurrence of any beneficiary. Be JenMns
and Bandal (1903) 2 Ch. 362.
The phrase "real securities" must mean securities on,
real property. Real property comprises, besides land and
buildings, amongst other things advowsons, profits a prendre,
free fisheries, fairs and markets, and life estates and
reversions. It will thus be seen how very wide in terms
is the discretion reposed in trustees. In practice, however,
there are but few forms of real property upon which a trustee
may properly make an investment.
It is not sufficient for a trustee to show that an investment
20 Trustee Act, 1893.
Sect. 1. impeaclied is an investment on real security. There are various
other things to he considered, such as the nature of the pro-
perty, and the different conditions which may affect its value,
Mant V. Leifh, 15 Beav. 524. An investment must be not
only " authorised " but " proper." With reference to the duties
of trustees in selecting an investment for trust money, the
following principles were laid down in Learoyd v. Whiteley,
12A.0. 727:—
" As a general rule, the law requires of a trustee no higher
degree of diligence in the execution of his office than a man of
ordinary prudence would exercise in the management of his
own private affairs. Yet he is not allowed the same discretion
in investing the moneys of the trust as if he were a person
sui juris dealing with his own estate. It is the duty of the
trustee to confine himself to the class of security authorised,
and likewise to avoid all investments of that class which are
attended with hazard " (^er Lord Watson, Learoyd v. Whiteley,
12 A.C. 727, at p. 733). " They (trustees) must take such care
in conducting the business of the trust as a reasonably cautious
' man would use, having regard, not only to the interests of those
who are entitled to the income, but to the interests of those who
will take in future ; that is to say, . . . trustees are bound to
preserve the money for those entitled to the corpus in remainder,
and they are bound to invest it in such a way as will produce a
reasonable income for those enjoying the income for the present.
And in so doing they must use such caution as a reasonably
prudent man would with reference to transactions in which he
may be engaged of a similar nature " (^per Cotton, L. J., in
re Whiteley, 33 CD. at p. 350). " The duty of the trustee is
to take such care as an ordinary prudent man would take if
he were minded to make an investment for the benefit of other
people for whom he felt morally bound to provide " (per Lindley,
L.J., in re Whiteley, supra).
The following general rules for the guidance of trustees
proposing to lend trust money on real security may be extracted
from the authorities.
In making an investment on real security trustees must
consider —
1. The nature of the property regarded as a physical object.
It should be —
(a) Permanent in nature and value ;
(6) Income producing ;
(c) Readily marketable.
It is conceived that all incorporeal hereditaments other than
permanent rents must fail to comply with one or more of these
requirements, the result being that although trustees are
authorised to invest in any form of real security, in practice
they can only properly lend on the security of land (regarded
as a physical object), buildings, or permanent rents.
2. The estate or interest of the borrower in the property.
(a) Its possible duration. It should as a rule be an
absolute fee simple.
Trustee Act, 1893. 21
(&) Its time of enjoyment. It slioiild 1)6 in possession. Sect, 1.
(c) Its nature. It should be a legal estate and a
sole or several interest, and be free from prior
incumbrances.
3. The market value of the property and amount of loan.
See section 8, and notes thereto, post, p. 41.
4. The form of the security. The security should —
(a) vest in the mortgagee the legal estate ;
(6) vest in the mortgagee sole control over the pro-
perty ;
(c) be enforceable by sale ;
(d) be enforceable by ejectment and foreclosure ;
(e) not prohibit the mortgagee from calling in the
mortgage money ;
(/) contain a covenant for payment ;
(gf) secure money, not the return of specific stock ;
(K) in the case of copyholds, be accompanied by a
surrender.
The authorities upon which these rules are based are dis-
cussed in Appendix A, jpost, p. 225.
" Heritable Securities." — Although section 52 provides ttat
this Act does not extend to Scotland, this express power to invest
in " real or heritable securities in Great Britain " clearly autho-
rises trustees subject to English or Irish law to invest on land
in Scotland. Under ordinary circumstances a security locally
situate out of the jurisdiction would not seem desirable although
authorised. Cf. re Miles's will, 6 Jur. N.S. 1236.
"In Great Britain or Ireland." — Real security in Ireland
is an expressly authorised, but, as a rule, not .desirable, invest-
ment for English trust funds.
" Great Britain " is defined by the Act of Union (6 Ann.
c. 11), and means the kingdoms of England and Scotland.
The Isle of Man is no part of the kingdom, but a distinct
territory of itself (Co. Litt. 9 (a)). The Channel Islands are " no
part of the realm of England," Galvin's Case, 7 Rep. 21.
Subsection (c). " Stock of the Bank of England or the Bank
of Ireland." — ^Bank stock is nothing but a share in the capital
stock of a company incorporated by Act of Parliament for the
purpose of carrying on a banking business. It is merely a
share in an incorporated partnership, which has certain statutory
privileges, and does the banking business of the State. Per
James, V.C., Ogle v. Knipe, 8 Eq. 4.34.
For the amount now in existence, see the Supplementary
Volume.
Subsection (d). " India . . . Stock."
Eor list of the present India stocks, see Supplementary
Volume.
Subsection (e). "Securities, the Interest of which is
guaranteed by Parliament."
"Guaranteed by Parliament." — This does not include
22 Trustee Act, 1893.
Sect. 1. guaranteed by the Government without the sanction of Parlia-
ment, e.g. Zanzibar 3 per cent, guaranteed loan,
"Virtually, all securities under this subsection are bonds to
bearer. As to bonds to bearer, see section 7, ^ost, p. 40.
For list of such securities, see Supplementary Volume.
Subsection (f ). " Metropolitan Board of Works, or London
County Council and Metropolitan Police Debenture Stock."
For the particulars of these stocks, see Supplementary
Volume.
Subsection (g). " Debenture, or Eentcharge, or Guaranteed,
or Preference Stock of any Railway Company in Great Britain
or Ireland, incorporated by Special Act of Parliament, and
having during each of the Ten Years last past before the Date .
of Investment paid a Dividend at the Rate of not less than
Three per Centum per Annum on its Ordinary Stock."
As to purchases at a premium under this subsection, see
section 2, post, p. 30.
" Debenture Stock." — It is conceived that an investment on
debentures, as distinct from debenture stock, is not authorised
by this subsection.
"Preference." — ^Many British railways have stocks called
" preferred ordinary stock " ■ and " deferred ordinary stock."
The question arises whether such preferred ordinary stocks are
"preference stocks" within the meaning of this clause.
Section 13 of the Regulation of Railways Act, 1868, enacts
that any company which, during the preceding year, baa paid
dividends at not less than three per cent, on its ordinary stock,
may by resolution divide its paid-up ordinary stock iuto two
classes, viz. preferred ordinary stock, and deferred ordinary
stock, and issue the same, in substitution for equal amounts of
paid-up ordinary stock, on the request of any holder, but not
otherwise ; the preferred ordinary stock to have a maximum
preference of six per cent., and to rank for dividend, pari passu
with the undivided ordinary stock.
In the case of stocks issued under the Act of 1868, the
preferred ordinary stock is not an authorised trust investment
under the present subsection. Dividends are declared on the
undivided ordinary stock, and for the purposes of tbis section
the splitting of the stock may be disregarded.
In many cases the ordinary stock has been similarly ^jarimZZy
split at the option of individual holders in pursuance of
special Acts. Dividends are declared on the undivided ordinary
stock, and for the purposes of this section the preferred ordinary
stock are not authorised investments under the present sub-
section. See re Brighton and Dyke Bailway Go., 44 CD. 28.
In the Great Northern Railway Company the whole of the
ordinary stock was compulsorily split by special Act, but the Act
provides that the converted stocks shall, for the purposes of
this subsection, be considered as continuing to be the ordinary
Trustee Act, 1893. 23
stock. Tte preferred ordinary stock is not, therefore, a " pre- Sect. 1.
ference stock," and for the purpose of considering whether the
necessary dividend has been paid, the preferred ordinary and
deferred ordinary must be considered as one stock.
In the cases of the Isle of Wight Railway Company and the
Midland Railway Company, the whole of the stock has been, in
like manner, split, and the Acts provide that dividends shall
continue to be ascertained and declared as if no conversion had
taken place.
In the Cardiff Railway Company there is a " preferred
ordinary stock of 1896," and "preferred ordinary shares of
1901," which are not the result of "splitting," and appear to
be, except in name, simply preference stock or shares respectively.
It is conceived that these may be " preference stocks " within
this section.
The "ordinary preference stock" of the North British Rail-
way Company also appears to have all the characteristics of a
preference stock.
In the cases of the Great Central Railway Company and the
Great North of Scotland Railway Company, the whole of the
ordinary stock has been split, but there appears to be no
express provision in the special Acts. It is conceived, how-
ever, that the preferred ordinary stocks are not preference
stocks.
" Stock." — See definition, section 60, ^ost, p. 163. In some
few cases there exist series of "annuities" charged on the
undertaking in preference to the ordinary stock. It is conceived
that such annuities are " stock " within the meaning of this
section, notwithstanding the terms of section 50.
" Great Britain or Ireland." — See ante, p. 21.
" Not less than Three per Cent." — The Rule of Court incor-
porated by paragraph (o) (see post, p. 28) only requires that a
dividend shall have been paid, and specifies no rate. The
requirement of a dividend at the rate of three per cent, is
thus rendered nugatory.
" During each of the Ten Years last past before the Date of
Investment." — As to continuing to hold stock in a company,
which, after investment made, fails to pay a dividend on its
ordinary stock, see Trustee Act, 1893, Amendment Act, 1894,
section 4, post, p. 176.
For a list of the stocks under this subsection, see Supple-
mentary Volume.
Subsection (h). " Stock of any Railway or Canal Company in
Great Britain or Ireland whose Undertaking is leased in Per-
petuity or for a Term of not less than Two Hundred Years at a
Fixed Rental to any such Railway Company as is mentioned in
Subsection (g), either alone or jointly with any other Railway
Company."
24 Trustee Act, 1893.
Sect. 1. " stock."— See ante, p. 23.
This subsection authorises investment in any stock, preference
or ordinary.
" Great Britain or Ireland." — See ante, p. 21.
" Leased in Perpetuity or for a Term, etc., at a Fixed Rental."
It is conceived that these words must be given a popular
rather than a technical meaning, and should not be too strictly
construed. It is conceived that the distinction intended to be
drawn is between the stock of companies, whose undertaking is
vested in another company in consideration of an unvarying
annual payment (whether actually rent or not), and that of a
company whose undertaking is worked and maintained by
another company in consideration of a percentage of the
profits.
If this be so, the undertaking of a company is " leased at
fixed rental," notwithstanding that in fact it has been absolutely
conveyed to another company in consideration of the latter
paying a fixed dividend or rate of interest on a fixed amount
of stock or fixed capital of the former ; and although the former
company (e.g. the Hammersmith and City Eailway Company)
has been dissolved.
"A Term of not less than Two Hundred Years," ie. unex-
pired at the time the investment is made. See the Amendment
Act, 1894, section 4, post, p. 176, as to continuing to hold an
investment which has ceased to be authorised.
"Any such Company as is mentioned in Subsection (g)," ie.
a company which has paid a dividend of not less than three per
cent, on its ordinary stock during each of the ten years prior
to investment. So far as this subsection is concerned, the
requirement of a minimum dividend of three per cent, is not
abrogated by the Bule of Court {post, p. 28).
"Any other Eailway Company." — Whether such as mentioned
in subsection {g) or not.
For a list of the stocks under this subsection, see Supple-
mentary Volume.
Subsection (i). " Debenture Stock of any Railway Company
in India, the Interest on which is paid or guaranteed by the
Secretary of State in Council of India."
As to purchases at a premium under this subsection, see
section 2, post.
" Debenture Stock." — See ante, p. 22.
"India." — The Interpretation Act, 1889, section 18, defines
" India " as meaning British India, together with any territories
of any native prince or chief under the suzerainty of Her
Majesty exercised through the Governor- General of India, or
through any governor or other officer subordinate to the
Governor- General of India.
The same section defines "British India" as meaning all
territories and places within Her Majesty's dominions which
Trustee Act, 1893. 25
are for the time being governed by Her Majesty tbrongli the Sect. 1.
Governor- General of India or through any governor or other
officer subordinate to the Govern or- General of India.
For list of the debenture stocks comprised in this subsection,
see Supplementary Volume.
Subsection (j). "B" Annuities of Eastern Bengal, East
Indian, and the Scinde Punjaub and Delhi Railways, and like
Annuities, and Annuities "D" and "C" of East Indian Railway.
For list of annuities comprised in this subsection, see Supple-
mentary Volume.
Subsection (k). " Stock of any Railway Company in India
upon which a Fixed or Minimum Dividend in Sterling is paid
or guaranteed by the Secretary of State in Council of India,
or upon the Capital of which the Interest is so guaranteed."
As to purchases at a premium under this subsection, see
section 2, post.
" Stock."— See definition, section 50, post, p. 161.
" India."— Defined by the Interpretation Act, 1889. See
ante, p. 24.
For list of the stocks comprised under this head, see
Supplementary Volume.
Subsection (1). "Debenture or Guaranteed or Preference
Stock of any Company in Great Britain or Ireland, established
for the Supply of Water for Profit, and incorporated by Special
Act of Parliament or by Royal Charter, and having during each
of the Ten Years last past before the Date of Investment paid
a Dividend of not less than Five per Centum on its Ordinary
Stock."
As to purchases at a premium under this subsection, see
section 2, post.
" Stock."— See ante, p. 23.
" Great Britain or Ireland." — See ante, p. 21.
" Ordinary Stock." — In many companies the ordinary stock
is divided into different classes, entitled to different rates of
maximum dividend. In the application of this subsection to
such companies, it is conceived that it is necessary that a
dividend at the rate of 5 per cent, per annum shall have been
paid for the requisite period on each class of ordinary shares.
For a list of the stocks within this subsection, see Supple-
mentary Volume.
Subsection (m). " Nominal or Inscribed Stock issued or to
be issued by the Corporation of any Municipal Borough, having
according to the Returns of the last Census prior to the Date
of Investment a Population exceeding Fifty Thousand, or by
any County Council, under the Authority of any Act of Parlia-
ment or Provisional Order."
As to purchases at a premium under this subsection, see
section 2, post.
26 Trustee Act, 1893.
Sect. 1. "Nominal Stock." — This expression appears to be taken
from the Local Loans Act, 1875, where a nominal debenture
means (see section 5) a debenture in which the principal sum
is made payable to a person therein named, and is transferable
in writing in manner directed by the local authority. It
appears to mean what is more commonly called " registered "
stock.
" Inscribed Stock." — This expression would appear to mean
stock transferable by inscription in books of stock kept by the
corporation issuing the stock, or by bankers as registrars on
behalf of the corporation.
" Stock." — See definition, section 50, and cf. ante, p. 23.
"Municipal Borough." — This expression was used in the
Trust Investment Act, 1889, to which the Interpretation Act,
1889, had no application. As used in that Act it probably
meant any urban community incorporated for municipal
purposes, and would thus include Scotch cities and burghs.
The Interpretation Act, 1889, provides (section 15) that in
every Act passed after the commencement of that Act (1) the
expression " municipal borough " shall mean " as respects
England and Wales, any place for the time being subject to
the Municipal Corporations Act, 1882." (2) The expression
"municipal borough" shall mean, "as respects Ireland, any
place for the time being subject to the Act of the session of
the 3rd and 4th years of the reign of her present Majesty,
chapter 108, intituled ' An Act for the Regulation of Municipal
Corporations in Ireland.' " There is no definition of the ex-
pression "municipal borough" as applied to Scotland. This
raises the question whether in the present section the expression
" municipal borough " includes Scotch municipalities. It ia
conceived that the only effect of the Interpretation Act is to
give a precise meaning to the expression as used in reference
to England and Ireland, leaving to the expression, as used with
reference to Scotland, the meaning which it had in the Trust
Investment Act, 1889, viz. any urban community incorporated
for municipal purposes.
" Census." — "When the boundaries of the borough of Bourne-
mouth were varied between the date of the census and of the
making of the census returns, with the result of bringing the
population from below 60,000 to upwards of 50,000, and
the alteration in the population was noted in the census
return, it was held that trustees could invest in stock issued
by the corporation of the borough. Ue JDruitt (1903) 1 Ch.
446.
"County Council" means a council established under the
Local Government Act, 1888, the Local Government (Scotland)
Act, 1889, or the Local Government (Ireland) Act, 1898.
"Any Act of Parliament." — These words cover the Local
Loans Act, 1875, as well as special Acts.
Trustee Act, 1893. 27
Tor list of stocks comprised in this subsection, see Supple- Sect. 1.
mentary Volume.
Subsection (n). " Nominal or Inscribed Stock issued or to be
issued by Commissioners incorporated by Act of Parliament for
the Purpose of supplying Water, and having a Compulsory
Power of levying Rates over an Area having, according to the
Returns of the last Census prior to the Date of Investment,
a Population exceeding Fifty Thousand, provided that during
each of the Ten Years last past before the Date of Investment
the Rates levied by such Commissioners shall not have exceeded
Eighty per Centum of the Amount authorised by Law to be
levied."
"Nominal Stock." — See ante, p. 26.
" Inscribed Stock." — See ante, p. 26.
" Stock." — See definition, p. 163, and of. ante, p. 23.
"Commissioners." — ^In the case of the Edinburgh water
undertaking, the authority is called "the Edinburgh Water
Trustees." It is conceived that they are " commissioners "
within this subsection.
The powers of the Glasgow Water Commissioners have
been transferred to the Glasgow City Corporation. It is con-
ceived that stock issued by the commissioners before transfer
is still an authorised investment under this subsection.
Many municipal corporations issue "water stock." It is
conceived such stock is not an authorised investment under
this subsection, but if at all, under subsection (m), supra.
"Incorporated by Act of Parliament." — Incorporation by
registration under the Companies Act, 1862, is not incorpora-
tion by Act of Parliament, re Smith, Davidson v. Myrtle (1896)
2 Ch. 590; but incorporation by charter, which derives its
force from a preceding Act of Parliament may be, Elve v.
Boytm (1891) 1 Ch. 501.
" Compulsory Power of levying Rates." — Some water com-
missioners have no power themselves to levy a rate, but have
power to call upon certain local authorities to raise any money
required by them. It is conceived that stock issued by such
trustees is not an authorised investment under this subsection.
" Eighty per Cent, of the Amount authorised." — It is thought
there are but four cases of investments authorised under this
subsection (see Supplementary Yolume) ; in three of them the
amount authorised to be raised is unlimited. It is conceived
that in these three cases the proviso in the subsection may be
disregarded.
Tor list of the investments under this subsection, see Sup-
plementary Volume.
Subsection (o). "Stocks, Funds, or Securities for the Time
being authorised for the Investment of Cash under the Control
or subject to the Order of the High Court."
28 Trustee Act, 1893.
Sect. 1. "High Court" is defined by the Interpretation Act, 1889,
as meaning, wlien used with reference to England or Ireland,
Her Majesty's High Court of Justice.in England or Ireland, as
the case may be.
The present Rule of the High Court in England (Order
XXII., Rule 17, as amended by B..S.C., 10th February, 1897 ;
October, 1899 ; July, 1901 ; and January, 1904) is as follows : —
17. — (1) Rule 1 of the Rules of the Supreme Court, August,
1888, is hereby annulled (except so far as it annulled Order
XXII., Rule 17, of the Rules of the Supreme Court, 1883),
and the following rule shall stand in lieu thereof : Cash, under
the control of, or subject to, the Order of the Court, may be
invested in the following stocks, funds, or securities, namely —
(i) Two and three-quarter per Cent. Consolidated Stock
(to be called after the 5th of April, 1903, Two-and-a-half per
Cent. Consolidated Stock).
(2) Consolidated Three Pounds per Cent. Annuities.
(3) Reduced Three Pounds per Cent. Annuities.
(4) Two Pounds Pifteen Shillings per Cent. Annuities.
(5) Two Pounds Ten Shillings per Cent. Annuities.
(6) Local Loans Stock under the National Debt and Local
Loans Act, 1887.
(7) Exchequer Bills.
(8) Bank Stock.
(9) India Three-and-a-half per Cent. Stock.
(10) India Three per Cent. Stock.
(11) Indian guaranteed railway stocks or shares, provided
in each case that such stocks or shares shall not be liable to
be redeemed within a period of fifteen years from the date
of investment.
(12) Stocks of Colonial Governments guaranteed by the
Imperial Government.
(13) Mortgage of freehold and copyhold estates respectively
in England and Wales.
(14) Metropolitan Consolidated Stock, three pounds ten
shillings per cent.
(15) Three per Cent. Metropolitan Consolidated Stock.
(16) Two-and-a-half per Cent. Metropolitan Consolidated
Stock.
(17) Two-and-a-half per Cent. London County Consolidated
Stock.
(18) Three per Cent. London County Consolidated Stock.
(19) Inscribed Two-and-a-half per Cent. Debenture Stock
issued by the Corporation of London, and secured by a trust
deed dated 24th June, 1897.
(20) Debenture, Preference, Guaranteed, or Rentcharge
Stocks of railways in Great Britain or Ireland having for ten
years next before the date of investment paid a dividend on
ordinary stock or shares.
(21) Nominal Debentures or nominal Debenture S took under
Local Loans Act, 1875, or under the Isle of Man Loans Act,
1880, provided in each case that such debentures or stock shall
Trustee Act, 1893. 29
not be liable to be redeemed TritLin a period of fifteen years Sect, 1.
from the date of investment.
(22) Debenture, Preference, Guaranteed, or Rentcbarge
Stocks of railways in Great Britain or Ireland guaranteed by
railway companies owning railways in Great Britain or Ireland
which have for ten years next before the date of investment
paid a dividend on ordinary stock or shares.
Numbers (i), (2), (3), (4), (5), and (6) are also authorised
by subsection (a).
(7) Exchequer Bills are not now issued, Treasury Bills
having been substituted under the authority of the Treasury
Bills Act, 1877.
(8) Bank Stock is also authorised by subsection (c).
(9) and (10) India Stocks are also authorised by sub-
section {d).
(11) Indian Guaranteed Railway Stocks are also authorised
by subsection (k), subject to the qualification in section 2,
post, p. 30, which qualification is not identical with that in
the Rule of Court. Under the Rule of Court a stock redeem-
able within fifteen years cannot be bought at all, but under
section 2 such a stock may be bought at or under its redemp-
tion value. Under the Rule of Court a stock redeemable after
more than fifteen years may be purchased at any price ; under
section 2 the price must not be more than 15 per cent, above
the redemption price. See, farther, the notes to section 2,
post, p. 31.
(12) Guaranteed Colonial Stocks are also authorised by
subsection (e).
(13) Mortgages are also authorised by subsection (5).
(14), (15), (16), (17), and (18), Metropolitan and London
County Stocks are also authorised by subsection (/).
(19) Inscribed Stock of the City of London. This is not
covered by subsection (m) ; the City of London not being " a
municipal borough " as defined (see ante, p. 26), nor a county
council ; nor was the loan raised under the authority of any
Act of JParUament or Provisional Order.
" Inscribed." — See ante, p. 26.
(20) British Railway Stocks are also authorised by sub-
section (j). It is to be observed that the Rule of Court does
not require that the railway company be incorporated by special
Act of Parliament. It is conceived that a company registered
under the Companies Acts, 1862 to 1900, for working a light
railway authorised by the Light Railway Commissioners under
the Light Railways Act, 1896, would, on complying with the
requirements as to dividends, be within this clause.
As to the requirement that a dividend shall have been paid
for ten years, see ante, p. 23.
(21) Nominal debentures or debenture stock under the
Local Loans Act, 1875, are also authorised by subsection (m),
subject to the provisions of section 2. Under the Rule of
Court there is no limit as to the size of the borough or local
authority issuing the loan, as in subsection (m), and the proviso
30 Trustee Act, 1893.
Sect. 1. as to redemption in tlie Rule of Court materially differs from
section (2). As to the differences, see ante, p. 29, in reference
to Indian Railway Stocks, where a similar divergence arises,
and notes to section 2, fost, p. 31.
Isle of Man Loans. — See post, sections 2 and 5, pp. 31, 39.
Ireland. — The present rule of the High Court in Ireland
is Order LXIL, Rule 70. It is not so extensive as the rule
of the Englisli Court. Its most noteworthy feature is that it
includes deposit receipt in the Bank of Ireland.
" And may also from Time to Time vary any such Invest-
ment." — The subject of varying investments has already been
incidentally referred to (see ante, p. 18). It has been there
pointed out that, in the absence of a power to vary investments,
trustees hiolding a fund already invested could not formerly
sell and reinvest, and that one of the mischiefs intended to be
remedied by the Trust Investment Act, 1889 (now replaced by
the present section), was the absence of power to vary invest-
ments already made.
The construction of the power to vary was much, discussed
in the Court of Appeal in re Dick, Lopes v. Hume-Dick (1891)
1 Oh. 429.
The power is to " vary any such investment ; " i.e. any such
investment as hereinbefore mentioned. Per Fry, L. J., in re Dich
(1891) 1 Oh. 429. This was held to mean any such investment
as hereinbefore mentioned, and to include investments made by
a testator during his life, as well as those made by his trustees
after his 'death. Even this construction of the Act of 1889
did not dispose of all difficulty, for it did not go beyond such
investments as are mentioned in the section, and " it is quite
possible, then, that there might be under the will or settlement
investments of descriptions not mentioned in section 3, and,
if the will or settlement contained no power to vary, they
would not be variable under the power given in this section,"
per Kay, L.J., in re Dick, supra. The House of Lords, however,
placed a wider construction on the Act, under which the
difficulty did not arise.
The present section refers to funds in a state of investment
in the hands of the trustee, hence the power to vary " any such
investment as hereinbefore mentioned " applies to any invest-
ment in the hands of the trustee, whether of the description
mentioned in subsections (a) to (o) or not.
For definition of "trust," "trustee," "instrument," "stock,"
and " securities," see section 50, infra.
Sect. 2. Section 2. — (1.) A trustee may under the powers
of this Act invest in any of the securities mentioned
a pre^^m* or referred to in section one of this Act, notwith-
of redeemable standing that the same may be redeemable, and that
the price exceeds the redemption value.
* Trustee Act, 1893. 31
(2.) Provided that a trustee may not under the Sect. 2.
powers of this Act purchase at a price exceeding its
redemption value any stock mentioned or referred
to in subsections {g), (i), {k), (Z), and (m) of section
one, which is liable to be redeemed within fifteen
years of the date of purchase at par or at some other
fixed rate, or purchase any such stock as is mentioned
or referred to in the subsections aforesaid, which is
liable to be redeemed at par or at some other fixed
rate, at a price exceeding fifteen per centum above
par or such other fixed rate.
(3.) A trustee may retain until redemption any
redeemable stock, fund, or security which may have
been purchased in accordance with the powers of
this Act.
This section replaces section 4 of the Trust Investment Act,
1889, which section is repealed by the present Act. See section
51, and Schedule, infra. Subsection 2 has been extended to
the Colonial Stocks authorised as trust investments by the
Colonial Stock Act, 1900, see post, p. 191.
"A Trustee." — See definition, section 60, post, p. 161, and
note to section 1, ante, p. 18.
"Securities mentioned or referred to in Section 1." —
Section 1, subsection (o), authorises investment in any securities
for the time being authorised for the investment of cash under
the control of the High Court. The Rule of Court authorises
investment in Indian Guaranteed Railway Stocks, debenture
stock under the Local Loans Act, 1875, or under the Isle of
Man Loans Act, 1880, with a proviso in each case that such
stocks shall not be liable to be redeemed within a period of
fifteen years from the date of investment.
Isle of Man Debenture Stock is not expressly mentioned
or referred to in section 1 ; and since only such Isle of Man
Debenture Stock as is not redeemable within fifteen years is
(as being authorised for the investment of funds in Court)
referred to in section 1, subsection (o), the present section (sub-
section 1) does not authorise the purchase of Isle of Man
Debenture Stock when redeemable within fifteen years.
Indian Guaranteed Railway Stock is included in the secu-
rities expressly mentioned or referred to in section 1, sub-
section (Jc), without any proviso as to period of redemption.
It is submitted, therefore, that the present section (subsection 1)
makes it clear that investment may be made on such stock
although redeemable within fifteen years, but subject to the
provisions of subsection 2.
Section 1 subsection (m) authorises investment in nominal
32 Trustee Act, 1893.
Sect. 2, or inscribed stock issued by certain large towns or by county
councils. A certain number of stocks, viz. nominal debenture
stocks, issued under the Local Loans Act, 1875, by the large
towns or by county councils, are included in subsection (m)
and the Rule of Court. As to such the above note on Indian
Railway Stock applies. Some securities, however, such as
debenture stock issued by a small town or a district council,
are included in the rule but not in subsection (m). As to such
the note above on Isle of Man Debenture Stock applies.
• " At some other Tixed Rate." — Stocks liable to be paid ofE
*• on average market price during a stated period preceding
• redemption (such as some of the Indian Railway Stocks) are
, not liable to be redeemed " at a fixed rate ; " nor, it is conceived,
are stocks which are liable to be paid ofE at a given number
of years' purchase of a given percentage (e.g. 50 per cent.) of
« the gross earnings of the company.
In the case of several Indian Guaranteed Railways, the
Secretary of State has power to purchase the undertaking of
the company at a fixed price to be paid to the company.
Although stock in such companies would not appear to be
** technically within this section, yet as under the terms of the
contracts with the Secretary of State the rights and interests
of th6 stockholders are in substance those of holders of redeem-
able stocks, trustees would be well advised to consider them-
• selves bound by the requirements of this section when
investing in the purchase of such stocks.
"A Trustee may retain."— Of. the Amendment Act, 1894,
section 4, post, p. 176.
For definition of " trustee " and " securities," see section 50,
infra.
Sect. 3. Section 3. — Every power conferred by the pre-
~ ceding sections shall be exercised according to the
" discretion of the trustee, but subject to any consent
required by the instrument, if any, creating the
trust with respect to the investment of the trust
funds.
This section replaces section 5 of the Trust Investment Act,
1889, which section is repealed by the present Act. See section
51, and Schedule, infra.
" Discretion of the Trustee,"— In order properly to exercise
his discretion, the trustee must have regard to the rights and
interests of aU parties concerned. This is particularly important
where there are beneficiaries entitled in succession. For if it
appear that the trustee has made an investment at the instance
and for the benefit of one or more of the cestuis que trust with-
out having regard to the interests of the others, and loss result
from the investment, that is a breach of trust for which the
Diacietion
tiustees.
Trustee Act, 1893. 33
trustee ia responsible. Baby v. Bidehalgh, 7 De G.M. & G. 104 ; ggQ^ 3
Stuart V. Stuart, 3 Beav. 430 ; re Dick, Hume v. Lopes (1891) L_l
1 Ch. at p. 431. So also, a discretionary power to postpone
conversion must not be exercised with intent to produce an
unequal effect as between tenant for life and remainderman.
Bowlls V. Behb (1900) 2 Oh. 107.
On the same principle, it would be an improper exei'cise of
the power of varying investments to exercise it simply for the
purpose of securing to a beneficiary the advantage of the rule
laid down lin the cases of Scholefield v. Bedfern, 2 Dr. & Sm.
173 ; Freeman v. Wiitiread, 1 Eq. 266 ; re Glarke, 18 G.Q. 160 ;
Bulkeley t. Stephens (1896) 2 Ch. 241 ; viz. that, as between
tenant for life and reversioner, no apportionment will be
made with reference to the increase or decrease of price of
stock, arising out of the nearness or remoteness of a period of
investment to or from the day when dividends are payable.
The commencement of an action for administration does not
deprive trustees of their discretionary powers, even though
they be plaintiffs, Cafe v. Bent, 3 Hare, 245 ; but after judg-
ment, powers, whether as to investment, Widdowson v. Buck,
2 Mer. 498; 16 R.R. 206 ; Bethell v. Abraham, 17 Eq. 24, or
otherwise, re Oadd, 23 CD. 134, can only be exercised subject
to the direction of the Court.
"Subject to any Consent required." — The power of con-
senting, or withholding consent, is given to the donee (usually
the tenant for life) for his own benefit, and he is not in a
fiduciary position as to it, Bicccnson v. Talbot, 6 Ch. 32, at
p. 37. Hence, trustees would not be precluded from lending
on mortgage to a person whose consent to a change of invest-
ment is requisite, re Laing (1899) 1 Ch. 593.
It was held in Harrison v. Thexton, 5 Jur. N.S. 550, that,
notwithstanding a tenant for life, whose consent to changes of
investment was requisite, withheld consent, yet having due
jegard to the ulterior interests created under the settlement,
the trustees were bound to insist on a change being made in
the investment of a fund not invested on proper security, and
a decree was made ordering such change to be effected. De
Manneville v, Crompton, 1 V. & B. 354, was decided on the same
principle.
Consent to the exercise of a power means previous or con-
temporaneous consent where (as in the case of consent to a power
of investing or changing investments) the nature and object of
the power, and the circumstances of the case, point to a previous
consent. Greenham v. Gibbeson, 10 Bing. 363 ; 38 R.R. 458 ;
Bateman v. Bavis, 3 Mad. 98 ; 18 R.R. 200. Stevens v. Bobertson,
37 L.J. Ch. 499, is a decision of Stuart, V.C, to the contrary,
but it is material to observe that the case of Greenham v.
Gibbeson (supra) was not cited, and it is submitted the case
cannot be relied on.
Consent cannot be given prospectively. Child v. Child, 20
Beav. 60. To prove consent it is necessary that there should
D
34 Trustee Act, 1893.
Sect. 3. be knowledge of fhe nature of the proposed investment, re
Massingherd, 63 L.T. 296.
Tor definition of " trustee " and " instrument," see section 50,
infra.
Sect. 4. Section 4. — The preceding sections shall apply
~~ ^ as well to trusts created before as to trusts created
of p'eredhig after the passing of this Act, and the powers thereby
seotiona. conferred shall be in addition to the powers conferred
by the instrument, if any, creating the trust.
This section replaces section 6 of the Trust Investment Act,
1889, which section is repealed by the present Act. See section
61, and Schedule, infra.
"The Powers thereby conferred." — The true mode of con-
struing the powers is to read them into the will. Be Dick
(1891) 1 Ch. at p. 421 ; and see re Moody, Woodroffe v. Moody
(1895) 1 Oh. 101.
" In addition to the Powers conferred by the Instrument." —
This appears to indicate that the powers of investment given
by section 1 are given only to trustees who already have a
power of investment, either expressly, or by implication, under
the declaration of trust. See note, " A trustee . . . may invest,"
ante, p. 18.
For definition of " trust " and " instrument," see section 50,
infra.
Sect. 5. Section 5. — (1.) A trustee having power to
Bniar eraent ^^^"^6^* ^^ ^^^^ Securities, unless expressly forbidden
of express by the instrument creating the trust, may invest
fnvestment ^^^ ^^^-^^ ^® deemed to have always had power to
invest — *
(a) on mortgage of property held for an un-
expired term of not less than two hundred
years, and not subject to a reservation of
rent greater than a shilling a year, or to
any right of redemption or to any condition
for re-entry, except for non-payment of
rent; and
(6) on any charge, or upon mortgage of any
charge, made under the Improvement of
Land Act, 1864.
(2.) A trustee having power to invest in the
mortgages or bonds of any railway company or of
any other description of company may, unless the
Teustee Act, 1893. 35
contrary is expressed in the instrument authorising Sect. 5.
the investment, invest in the debenture stock of a ~
railway company or such other company as aforesaid.
(3.) A trustee having power to invest money in
the debentures or debenture stock of any railway
or other company may, unless the contrary is
expressed in the instrument authorising the invest-
ment, invest in any nominal debentures or nominal
debenture stock issued under the Local Loans Act,
1875.
(4.) A trustee having power to invest money in
securities in the Isle of Man, or in securities of the
government of a colony, may, unless the contrary is
expressed in the instrument authorising the invest-
ment, invest in any securities of the Grovernment of
the Isle of Man, under the Isle of Man Loans Act,
1880.
(5.) A trustee having a general power to invest
trust moneys in or upon the security of shares,
stock, mortgages, bonds, or debentures of companies
incorporated by or acting under the authority of an
Act of Parliament, may invest in, or upon the
security of, mortgage debentures duly issued under
and in accordance with the provisions of the
Mortgage Debenture Act, 1865.
Subsection 1 (a) replaces section 9 of the Trustee Act,
1888. Subsection 1 (6) replaces section 60 of tbe Improvement
of Land Act, 1864. Subsection 2 replaces section 1 of tbe
Debenture Stock Act, 1871. Subsection 3 replaces section 27
of the Local Loans Act, 1875. Subsection 4 replaces section 7
of the Isle of Man Stock Act, 1880. Subsection 5 replaces
section 40 of the Mortgage Debenture Act, 1865. All the
above-mentioned sections are repealed by the present Act.
See section 51, and Schedule, infra.
The wording of the marginal note should be observed.
The marginal note, however, forms no part of the Act. Sutton
V. Sutton, 22 CD. 511 ; Claydon v. Green, L.E. 3 C.P. 511 ;
re Venour, Venoury. Sellon, 2 Ch. D. 522 ; A.-G. v. G.E.By. Go.,
11 CD. at p. 465.
It has been pointed out in the Introduction {ante, p. 1)
that this Act is not a code to be interpreted without reference
to previous enactments or decisions. A knowledge of such
enactments and decisions is peculiarly necessary in construing
the present section.
36 Trustee Act, 1893.
Sect. 5. Subsection 1 (a).— Subsection 1 (a) first appeared on the
statute book as section 9 of the Trustee Act, 1888, which was
as follows : " A power to invest trust money in real securities
shall authorise, and shall be deemed to have always authorised,
an investment upon mortgage of property held for an unexpired
term of not less than two hundred years, and not subject to
any reservation, etc." ^
At the date of the passing of that Act, Lord St. Leonards s
Act (see ante, p. 15) was in force, and it is conceived that
section 9 of the 1888 Act operated to extend not only express
powers, but also the power conferred by section 32 of Lord St.
Leonards's Act (ante, p. 15). Eight months later section 32
of Lord St. Leonards's Act was repealed by the Trust Invest-
ment Act, 1889, and the power to invest on real securities
re-enacted by section 3 of that Act, no reference being made
in the Act of 1889 to section 9 of the Act of 1888. It seems
clear that the combined effect of section 9 of the 1888 Act and
the Act of 1889 was to authorise any trustee, not expressly
forbidden, to invest on leasehold securities of the nature
mentioned in the 1888 Act. It is conceived, therefore, that
there is no ground for the suggestion which has been made
(Wolstenholme on the Conveyancing and Settled Land Acts,
8th edit., p. 206), that it may be a question whether section 5
(1) (a) extends section 1 so as to authorise an investment on
leaseholds.
" Mortgage." — See definition " including equitable charge,"
section 50, post, p. 161. Notwithstanding the definition, trustees
cannot safely dispense with the legal estate. See ante, p. 21,
and Appendix A.
It will be observed that the terms specified are not neces-
sarily capable of enlargement under section 65 of the Con-
veyancing and Law of Property Act, 1881, and section 11 of
the Conveyancing Act, 1882.
Subsection 1 (6). — Subsection 1 (6) first appeared in the
statute book as part of section 60 of the Improvement of Land
Act, 1864 (27 & 28 Vict. c. 114), as follows : " All trustees,
directors, and other persons who may be>authorised to invest any
money on real security shall (unless the contrary be provided
by the instrument directing or authorising such investment)
have power at their discretion to invest money on such charges,
or on mortgages thereof." It is conceived that a trustee, whose
only authority for an investment on real security was Lord St.
Leonards's Act, could not make an investment under the 1864
Act, for since " instrument " was not defined (as it is in section
50 of this Act) as including an Act of Parliament, there was
no " instrument " authorising the investment on real security.
It is conceived that the reason why subsections 1 (a) and
(6) are not included in section 1 is to be found in the insertion
of the words, "and shall be deemed to have always had power."
As the expression " may be authorised " in the Act of 1864
appeared to refer to authority not given at the date of the Act,
*
Teustee Act, 1893. 37
trustees under an instrument coming into operation before the Sect. 5.
29th July, 1864, the date when the statute was passed, could not ____
safely assume that the Act applied to their case (Lewin, 9th edit.,
p. 36^-). Subsection 1 may, therefore, have been separately
enacted so as to introduce the words above referred to, and
thus cure any breaches of trust which might have been com-
mitted in the past.
Subsection 2. — This subsection replaces section. 1 of the
Debenture Stock Act, 1871 (34 & 35 Vict. c. 27). The preamble
of that Act recited that by divers Acts of Parliament, and more
particularly the Companies Act, 1863 {sic. the proper title is
" The Companies Clauses Consolidation Act, 1863 "), com-
panies authorised to issue debenture stock were empowered
to raise, by means of such stock, all moneys which they
might for the time being be authorised to raise on mortgage
or bond ; and that doubts were entertained whether it was
lawful for trustees, authorised to invest trust funds in the
mortgages or bonds of companies, to invest such funds in
debenture stock.
The preamble makes it clear that the Legislature, in speak-
ing of companies, mortgages, bonds, and debenture stock, was
dealing only with companies incorporated by special Act of
Parliament or expressly authorised by statute to issue debenture
stock, with mortgages, bonds, and debenture stock such as
are issued under the Companies Clauses Consolidation Act, 1845,
and with debenture stock such as is issued under the Companies
Clauses Consolidation Act, 1863.
It is conceived that, having regard to its history, the same
limitation must be placed on the present subsection. It is
dealing with companies regulated by the Companies Clauses
Acts or similar special enactments, and has no bearing on the
securities issued by companies incorporated by registration
under the Companies Acts 1862 to 1900. "Mortgages or
bonds " is an expression used in the Companies- Clauses Acts,
but seldom, if ever, used in speaking of borrowed capital of
registered companies, where the term "debenture" is almost
universal. In construing the words " railway or other com-
panies," it is conceived that, since the special words do not
exhaust the genus, Femoich v. Schmah, L.R. 3 C.P. 313 ; re
Stochport Bagged Schools (1898) 2 Ch. 687, the ejusdem generis
rule should be applied. See, however, re Sharp, 45 CD. 286.
Debenture stock of a company under the Companies Acts
1862 to 1900 is essentially different from debenture stock
issued by railway and other companies under the Companies
Clauses Act, 1863. Debenture stock issued under the Act of
1863 is a security of an anomalous character, and more closely
resembles preference stock, with a right to a receiver in certain
events, than a mortgage debt. It is irredeemable, unless
Parliament in the particular case, otherwise enacts ; the interest
is payable only out of profits ; and though the debenture stock-
holders can obtain the appointment of a receiver if the interest
38 Trustee Act, 1§93.
Sect. 5. be in arrear, they can take only " the fruit of the tree ; " they
cannot reaKse their security by foreclosure or sale (Palmer's
Company Precedents, vol. iii., 8th edit., pp. 6, 7).
Debenture stock of a company under the Companies Acts
1862 to 1900 is merely borrowed capital consolidated for the
sake of convenience (Lindley on Companies, p. 195). Apart
from its history, there seems no particular reason why this sub-
section should not empower trustees, expressly authorised to
invest on the debentures of a registered company, to invest on
debenture stock of such a company. Having regard, however,
to its history, it is submitted that trustees cannot safely act on
this view. Contributory mortgages are an improper investment
(see post, p. 231). Many of the objections to a contributory
mortgage also attach to a share in debenture stock issued by
registered companies.
There is no statutory enactment (except section 21 of the
Settled Land Act, 1882) authorising trustees to invest on
mortgages or bonds of a railway or other company.
Subsection 3. — This subsection replaces section 27 of the
Local Loans Act, 1875 (38 & 39 Vict. c. 83). Though the
point is probably of very little importance, the question again
arises whether, in using in the Act of 1875, the expression,
" debentures or debenture stock of any railway or other com-
pany," the Legislature contemplated securities of a company
registered under the Companies Act, 1862.
A consideration of section 1 (m) (ante, p. 14), the Rule of
of Court {ante, p. 28), and the present subsection, leads to the
following conclusions : —
1. Under the present subsection a trustee authorised by the
trust instrument to invest in debentures or debenture stock of
any railway or other company may, unless the contrary is
expressed in the instrument authorising the investment, invest
in any nominal debentures or nominal debenture stock issued
by any local authority under the Local Loans Act, 1875 (with-
out any limit as to population), although such debentures or
debenture stock are redeemable within fifteen years, and may
do so free from the statutory limitation as to price contained in
section 2.
2. The Trustee Act, 1893, is (see definition, section 50) an
instrument, and section 1 authorises investment on debenture
stock of a railway company, but it imposes limits on the
investments which it authorises trustees to make on nominal
debentures or debenture stock under the Local Loans Act, 1875.
Such limitations, as constituting an " expression of the con-
trary," are not, it is to be assumed, dispensed with by the
present subsection.
3. The express powers conferred by section 1 (m) to invest
on nominal or inscribed stock of large towns and count v
councils, and by section 1 (o) to invest in nominal debentures
or nominal debenture stock under the Local Loans Act, 1875,
remain unaffected by the present section. See notes to section
2, ante, p. 32.
Trustee Act, 1893. 39
In re Maherly, 33 CD. 455, it was held that trustees with Sect. 5.
power to invest in railway debenture stock, on which a dividend .
had heen paid for ten years, conld not invest on debentures or
debenture stock under the Local Loans Act, unless the local
authority had paid a dividend for ten years. That case was
decided on section 27 of the Act of 1875, which gave trustees
" the same " power of investing in local loan debentures as
they had of investing on railway debentures or debenture
stock. The present subsection cannot be so construed.
Subsection 4. — This subsection replaces section 7 of the Isle
of Man Loans Act, 1880. A consideration of the Rule of Court
(ante, p. 28), of the Colonial Stock Act, 1900 (post p. 191), and
of this subsection, leads to the following conclusions : —
1. Under the present subsection a trustee who is authorised
by the trust instrument to invest in securities in the Isle of
Man or of a colony, may, unless the contrary is expressed in the
instrument, invest in any securities of the Isle of Man under
the 1880 Act, whether redeemable within fifteen years or not.
2. The Trustee Act, 1893, is, by virtue of the definition in
section 50, an instrument, and section 1 incorporating the
Rule of Court authorises investment on securities in the Isle
of Man and certain Colonial Guaranteed Stocks (see ante,
p. 28) ; but by providing that Isle of Man Debentures or
Debenture Stock on which an investment is made must not be
redeemable within fifteen years, it expresses a contrary intention,
which will have the effect of excluding for the purposes of
the present section securities under the Act of 1880 redeem-
able within fifteen years.
8. Section 1 (o) of this Act incorporating the Rule of
Court is not affected by this subsection (see arde, p. 28).
4. The Colonial Stock Act, 1900 (post, p. 191), is, by virtue
of the definition in section 50 of the present Act, an instrument
authorising trustees to invest in certain Colonial Stocks. The
effect of the present subsection since the passing of that Act
would appear to be to authorise trustees to invest in Isle of
Man Stock, whether redeemable within fifteen years or not.
Subsection 5. — This replaces section 40 of the Mortgage
Debenture Act, 1865, which is an Act enabling certain com-
panies, whose objects are limited to making advances on lands,
etc., and to borrowing money on mortgage debentures, to issue
mortgage debentures founded on securities upon or affecting
land.
For definitions of "trustee," "trust," "instrument," "mort-
gage," " property," " securities," and " stock," see section 50,
infra.
Section 6. — A trustee having power to invest Sect. 6.
in the purchase of land or on mortgage of land may ~ ~
invest in the purchase, or on mortgage of any land, vest, notwith-
notwithstanding the same is charged with a rent ^^^^^^28
charges.
40 Trustee Act, 1893.
Sect. 6. under the powers of the Public Money Drainage
'Acts, 1846 to 1856, or the Landed Property Im-
provement (Ireland) Act, 1847, or by an absolute
order made under the Improvement of Land Act,
1864, unless the terms of the trust expressly provide
that the land to be purchased or taken in mortgage
shall not be subject to any such prior charge.
This section replaces section 37 of the Public Money
Drainage Act, 1846 ; section 53 of the Landed Property Improve-
ment (Ireland) Act, 184-7, and section 61 of the Improvement
of Land Act, 1864.
" Mortgage of Land." — See notes to section 1, ante,_ p. 19,
and Appendix A as to investment on mortgage under this Act.
For definitions of " trustee," " land," and " mortgage," see
section 50, infra.
Sect. 7. Section 7. — (1.) A trustee, unless authorised
by the terms of his trust, shall not apply for or
Trustees not \^q[^ any certificate to bearer issued under the
scribed stock authority of any of the following Acts; that is
into oertifi- -j-q „„ y
CQiiifis to liPSirfir j
(a) The India Stock Certificate Act, 1863 ;
(6) The National Debt Act, 1870 ;
(c) The Local Loans Act, 1875 ;
(d) The Colonial Stock Act, 1877.
(2.) Nothing in this section shall impose on the
Bank of England or of Ireland, or on any person
authorised to issue any such certificates, any
obligation to inquire whether a person applying for
such a certificate is or is not a trustee, or subject
them to any liability in the event of their granting
any such certificate to a trustee, nor invalidate any
such certificate if granted.
This section replaces section 4 of the India Stock Certificate
Act, 1863 (26 & 27 Vict. c. 73) ; section 29 of the National Debt
Act, 1870 (33 & 34 Vict. c. 71) ; section 21 of the Local Loans
Act, 1875 (38 & 39 Vict. c. 83) ; and section 12 of the Colonial
Stock Act, 1877 (40 & 41 Vict. c. 59).
The wording of the marginal note should be observed. As
to the effect of marginal notes, see ante, p. 35.
"Certificate to Bearer." — A direction to invest "in the
names " of trustees precludes investment in bearer securities.
Trustee Act, 1893. 41
Be Both, Goldherger v. Both (1896) W.N. 16 ; 74 L.T. 50 ; cf. Sect. 7.
Webl V. Jonas, 39 CD. at pp. 664, 666; Field v. Field (1894)
1 Ch. at p. 429.
It has been held that bearer securities may, without breach
of trust, be deposited in a box at a banker's on account of all
the trustees, one being allowed by the rest to keep the key of
the box in order to obtain the coupons, the bankers seeing that
only coupons are taken out. Mendes v. Guedalla, 2 J. & H. 269,
at p. 278. Another course (which the authors believe is generally
followed) is to deposit the securities in the joint names of the
trustees with the bankers to the trust, for safe custody and
for the collection of coupons. Be de Pothonier, Dent v. de
Pothonier (1900) 2 Ch. 529.
Bearer securities must not be left in the custody of one of
several trustees, Lewis v. Nobis, 8 CD. 591 ; nor of the solicitor
or any other agent other than the bankers of the trustees.
Field V. Field (1894) 1 Ch. 425 ; re de Pothonier, supra.
As to custody of title deeds and non-negotiable securities,
see re Sisson's Settlement, Jones v. Trappes (1903) 1 Ch. 262.
For definitions of "trust" and "trustee," see section 50,
infra.
Section 8. — (1.) A trustee lending money on Sect. 8.
the security of any property on which he can
lawfully lend shall not be chargeable with breach ^"^^^^^^^^^^
of trust by reason only of the proportion borne by by trustees not
the amount of the loan to the value of the property treSs Iff **
at the time when the loan was made, provided that trust.
it appears to the court that in making the loan the
trustee was acting upon a report as to the value of
the property made by a person whom he reasonably
believed to be an able practical surveyor or valuer
instructed and employed independently of any
owner of the property, whether such surveyor or
valuer carried on business in the locality where
the property is situate or elsewhere, and that the
amount of the loan does not exceed two equal third
parts of the value of the property as stated in the
report, and that the loan was made under the advice
of the surveyor or valuer expressed in the report.
(2.) A trustee lending money on the security of
any leasehold property shall not be chargeable with
breach of trust only upon the ground that in making
such loan he dispensed either wholly or partly with
the production or investigation of the lessor's title.
42 Teustee Act, 1893.
Sect. 8. (3.) A trustee shall not be chargeable with
breach of trust only upon the ground that in
effecting the purchase of or in lending money upon
the security of any property he has accepted a
shorter title than the title which a purchaser is, in
the absence of a special contract, entitled to require,
if in the opinion of the court the title accepted be
such as a person acting with prudence and caution
would have accepted.
(4.) This section applies to transfers of existing
securities as well as to new securities, and to in-
vestments made as well before as after the com-
mencement of this Act, except where an action or
other proceeding was pending with reference thereto
on the twenty-fourth day of December one thousand
eight hundred and eighty-eight.
This section replaces, with slight verbal alterations, section 4
of the Trustee Act, 1888 (51 & 52 Vict. c. 59), which section
is repealed by the present Act. See section 51, and Schedule,
infra.
In subsection 1 of the repealed section the words " on
which he can lawfully lend " did not appear ; but at the end
of the subsection there was the following sentence : " And
this section shall apply to a loan upon any property of any
tenure, whether agricultural or house or other property, on
which the trustee can lawfully lend." This alteration does
not appear to affect the scope of the enactment, for the refer-
ences in subsection 1 to the local situation of the property,
and in subsection 2 to the title which a purchaser may require,
appear to indicate sufficiently that the wide meaning given by
section 50 (see p. 161, infra) to the word '• property " cannot
here be applied.
Subsection 1. — Before the Act of 1888 the Courts of Equity
had indicated and given effect to certain general principles for
the guidance of trustees in lending money on the security of
real estate. Thus it had been laid down that in the case of
ordinary agricultural land the margin ought not to be less than
one-third of its value ; whereas in cases where the subject of the
security derived its value from buildings erected upon the land,
or its use for trade purposes, the margin ought not to be less
than one-half. These were not laid down as hard-and-fast
limits up to which trustees would be invariably sale, and beyond
which they could never be in safety to lend, but rather as
indicating the lowest margins which in ordinary circumstances
a careful investor of trust funds ought to accept. Per Lord
Watson in Learoyd v. Whiteley, 12 A.C. 727.
Trustee Act, 1893. 43
Trustees are not bound to take the precautions stated in the Sect. 8.
subsection. The Act merely says if they do so they shall not
be liable by reason only of the proportion borne by the amount
of the loan to the value of the property. The subsection only
deals with the question of value. The trustee must show that
the loan is not improper independently of value, Blyth v. Fladgate
(1891) 1 Ch. 737; re Walker, 59 L.J. Ch. 386. See ante,
p. 20, and Appendix.
To obtain the protection afforded by the enactment, it must
be shown to the Court —
1. That in making the loan the trustee was acting upon a
report as to the value of the property ;
2. That the report was made by a person whom the trustee
reasonably believed to be an able practical surveyor or
valuer ;
3. That the surveyor or valuer was instructed and employed
independently of any owner of the property ;
4. That the amount of the loan does not exceed two equal
third parts of the value of the property as stated
in the report ; and
5. That the loan was made under the advice of the surveyor
or valuer expressed in the report.
It is not essential that the surveyor or valuer should carry
on business in the locality where the property is situate.
Before the Act of 1888 trustees could not safely act on the
opinion of a surveyor who did not carry on business in the
locality, Budge v. Gummow, 7 Ch. 719 ; Fry v. Tapson, 28 CD.
268. It would seem from the wording of the section that the
surveyor or valuer must be actually engaged in business at the
time of the report; the report of a surveyor or vainer who has
retired from business would not suffice. It would also seem
that the report must be in writing.
The report must state the value of the property. It is not
sufficient only to state the amount which the surveyor or valuer
thinks may be safely advanced upon the security of the property.
Be Stuart (1897) 2 Ch. 583.
The surveyor or valuer must be a person whom the trustee
himself believes to be an able practical surveyor or vainer.
He must exercise his own judgment, and not leave the selection
of the surveyor or valuer to his solicitor. Fry v. Tapson, 28
CD. 268. It is not the solicitor's business to select the
surveyor or valuer. If a solicitor be asked to name a valuer,
he should submit a name or names to the trustees, and tell them
everything which he knows to guide their choice, but leave the
choice to them. Per Kay, J., in Fry v. Tapson, supra, at p. 281.
The surveyor or valuer must be paid by the mortgagee.
He can, however, charge the fee to the mortgagor. Smith v.
Stmieham (1886) W.N. 178. The surveyor or valuer must not
be employed on the terms that if the mortgage be carried into
effect he shall receive a higher fee. Smith v. Stoneham, supra.
The words in subsection 1, " believed to be," do not refer to
the words " instructed and employed." The surveyor or valuer
44 Trustee Act, 1893.
Sect. 8. must in fact be so instructed and employed. Be Somerset (1894)
1 Ch. 231 ; re Walker, 59 L.J. Oh. 386 ; cf. re Stuart (1897)
2 Oh. 583.
Although trustees are not bound to take the precautions, or
limit the amount of a loan to the proportion prescribed by the
section, under ordinary circumstances they run grave risks in
omitting such precautions or in making an advance of more
than two-thirds of the value ©f the security. The rules in the
section constitute a standard by which the conduct of trustees
wOl be judged, and in any case where they feel justified in
advancing more than two-thirds of the value, they should at
least comply with all the other provisions of the subsection.
Be Stuart (1897) 2 Oh. 583. As to obtaining relief under
section 3 of the Judicial Trustees Act, 1896, where the provisions
of this section have not been complied with, see post, p. 186.
In the case of a mortgage of a ground rent, small as
compared with the rack rent of the property, payable under a
lease having sixty or more years to run, the market value of
the security is practically free from all causes of depreciation
other than fluctuations of the money market ; and the income
cannot decrease, for if the ground rent be not paid, the right of
re-entry can be exercised and the rack rent received instead of the
ground rent (see Vickery v. Evans, 32 Beav. 8 76) . Trustees, there-
fore, can lend a somewhat larger sum on such a security than the
sum authorised by this section (see Vickery v. Evans, 32 Beav.
376), provided, of course, that the ground rent suffices to pay the
interest on the mortgage (seeposi, p. 227), and that the ground
rents could be readily sold for a sum sufficient to pay the
principal sum advanced (see as to market value, ^Josi, p. 228).
Probably a loan of three-fourths of the market value instead of
merely two-thirds would be justifiable, i.e. a ground rent of £4
worth twenty-five years' purchase wonld be a good trustee
security for £75 to £80 at 4 per cent., although the amount
authorised by this section would only be £66 13s. 4i. The
amount lent in Vickery v. Evans, supra, was just over twenty
years' purchase of the ground rents.
"Property on which he can lawfully lend." — See note,
supra, p. 42.
Subsection 2. — Section 15 {post, p. 70) deals with the
subject of a trustee purchasing leaseholds without calling for
the title to the freehold.
This subsection is not an absolute protection to a trustee, it
merely enacts that he shall not be chargeable by reason only
that in making the loan he dispensed with the investigation of
the lessor's title.
Subsection 3.— Cf. section 15 {post, p. 70). This subsection
deals only with length of title, it does not authorise the waiver
of other defects in title.
It is conceived that in the application of this section greater
latitude wiU be allowed to trustees purchasing than to trustees
Trustee Act, 1893. 45
investigating tlie title with a view to a loan. The sole object Sect. 8.
of a mortgagee is to obtain a thoroughly safe security, and it
is conceived that the circumstances under which a trustee
mortgagee can accept anything short of a perfect title must be
very special. In the case of a purchase, however, the acquisi-
tion of the property in the interests of the trust estate may be
so desirable that, given a reasonably probable assurance of a
good holding title, trustees might be justified in waiving slight
defects. But even in making a purchase trustees cannot waive
serious defects of title. Eastei-n Oounties Railway Go. v. HawTces,
5 H.L.C. 363; ex parte Governors of Ghrist's Hospital, 2 H. & M.
168. And if conditions of sale or the terms of a contract are
very special, trustees ought not to bind themselves by signing
the contract. See ex parte Governors of Ghrisfs Hospital, supra.
"The Title which a Purchaser is . . . entitled to
rec[llire." — A purchaser under an open contract is entitled to
call for the title mentioned below in the following cases of
sale : —
1. Of freeholds of iuheritance, or for lives or copyholds,
title for forty years next before the contract. In the
case of freeholds for lives, the lease for the lives
must be produced though more than forty years old.
2. Of freeholds, formerly copyhold but enfranchised within
forty years of the sale, the freehold title back to and
including the enfranchisement, and beyond that, the
copyhold title back to forty years before the contract,
but not the title to make the enfranchisement.
3. Of leaaeholds, production of the lease under which the
property is held in all cases; and, if the lease be
more than forty years old, the title under the lease
for the forty years before the contract, otherwise the
whole title subsequent to the lease; but not in any
case the title to the freehold, nor in the case of the
sale of property held by underlease, the title to any
leasehold reversion.
4. Of an advowson, title for at least a hundred years before
the contract.
5. Of titles or other property held under a grant from the
Crown, production of the original grant in all cases,
and title thereunder for the forty years next before
the contract.
6. Of a reversionary interest, production of the instrument
which created it, in all cases ; and, in addition, proof
that possession of the land has been in accordance
with the instrument so produced. See Williams on
Vendor and Purchaser, pp. 77-83.
There is no rule relating to the length of title a mortgagee
may require. Trastees lending on mortgage are impliedly by
this section authorised to accept the same length of title as a
purchaser under an open contract could insist on ; and in either
buying or lending on mortgage to accept an even shorter title,
46 Trustee Act, 1893.
Sect. 8. subject to the risk of the Court at some subsequent date saying'
they have accepted a shorter title than a person acting with
prudence and caution would have accepted.
" If in the Opinion of the Court, etc." — These words impose
a very large qualification on the generality of the enactment in
the subsection. Trustees are not protected for accepting a short
title, unless the title actually accepted be not only of such
length, but be in all respects such, as a prudent and cautious
person would have accepted.
It would seem that if a trustee failed to escape liability
under the provisions of this subsection, he could not get relief
under section 3 of the Judicial Trustees Act, 1896.
Subsection 4. "Transfers." — A transfer of a mortgage
cannot be safely taken from the mortgagee alone without first
inquiring of the mortgagor as to the state of the mortgage
debt, and the interest thereon, and obtaining a favourable reply,
and without giving notice of the transfer to the mortgagor.
Turner v. Smith (1901) 1 Ch. 213. In practice, the mortgagor
is made a party to the transfer, whenever his concurrence can
be procured. Williams on "Vendor and Purchaser, p. 437.
"24th day of December, 1888."— This is the date when the
Trustee Act, 1888, came into operation.
For definitions of " trustee " and " property," see section 50,
infra.
Sect. 9. Section 9. — (l.) Where a trustee improperly
^7^ advances trust money on a mortgage security which
loss by reason would at the time of the investment be a proper
of improper investment in all respects for a smaller sum than is
actually advanced thereon, the security shall be
deemed an authorised investment for the smaller
sum, and the trustee shall only be liable to make
good the sum advanced in excess thereof with
interest.
(2.) This section applies to investments made as
well before as after the commencement of this Act,
except where an action or other proceeding was
pending with reference thereto on the twenty-fourth
day of December one thousand eight hundred and
eighty-eight.
This section replaces section 6 of the Trustee Act, 1888,
which section is repealed by the present Act. See section 51,
and Schedule, infra.
A mortgage investment by a trustee may be wrongful either
as being wholly unauthorised or authorised but improper.
investments.
Trustee Act, 1893. 47
This section deals only witli the single instance of an Sect. 9.
authorised investment improper by reason of the amount of —
the advance.
First, as to unauthorised investments. If a trustee admit
that he has received a trust fund, and state that he afterwards
applied it in a way not authorised by the trust, the Court will
fasten upon the receipt, and not allow him to discharge himself
by pleading a breach of duty ; as, if a trustee admit that he
once had a fund in his hands, but that he afterwards lent it on
personal security not within the terms of the trust. Lewin,
10th edit., p. 1195 ; Vigrass v. Binfield, 3 Mad. 62 ; Wyati v.
Sherratt, 3 Beav. 498 ; Boy v. Oibhon, 4 Hare 65. It follows
that where a trustee has made an unauthorised investment, the
case must be treated as if the investment had not been made,
or had been made for the trustee's own benefit, out of his own
moneys, and he had at the same time retained trust moneys in
his hands. Knoft v. Cottee, 16 Beav. 77; re Salmon, 42 CD.
351, per Kekewich, J.
The cestuis que trust, if sui juris, may, however, elect to waive
the breach of trust, and take to the unauthorised investment.
Be Jenhins and Bandall's Contract (1903) 2 Ch. 362. Such
election is a complete waiver of the breach of trust (see Thorn-
ton V. Stohill, 1 Jur., N.S. 751) ; they could not, for instance,
elect to take to a house wrongly purchased, and then sue the
trustee for damages for breach of trust for accepting a defective
title.
If they cannot, or do not, elect to take to the unautho-
rised investment, they yet have the right to follow their trust
funds, and have a lien on the property for the payment thereof.
Knott V. Cottee, supra; re Salmon, supra, per Kekewich, J.
A lien is not, strictly speaking, enforceable by sale until
established by a decree of a Court of Equity, binding the persons
affected by the lien. Fisher on Mortgage, 484 ; A.-G. v. Sitting-
bourne Bailway, 1 Eq. 636. Obviously in most cases a title
could not be made without the order of the Court. An action
to enforce a lien of necessity gives the person whose property
is charged an opportunity of redeeming. It sometimes happens
that the cestuis que trust are in a position to sell, and do sell,
the property subject to lien, without the assistance of the Court.
See re Salmon, 42 CD. 351 ; re Lake, ex parte Howe (1903)
1 K.B. 439. In such a case it is essential that the trustee
should be given an opportunity of redeeming. Be Salmon,
supra; re Lake, supra. Where no such opportunity be
given, then if the cestuis que trust be capable of electing, they
will be deemed to have elected to take to the property, and
thus to have waived the breach of trust. See re Salmon, supra ;
re Lake, supra. Though if the cestuis que trust be incapable
of electing, the trustee has been held to remain liable for his
breach of trust. Head v. Gould (1898) 2 Ch. 250. _
SecoDdly, as to authorised but improper investments.
Such an investment is, from the first, part of the trust estate.
The trustee is only liable for the loss, and that liability is to
48 Trustee Act, 1893.
Sect. 9. l^e enforced when the investment is realised. Be Salmon, 42
CD. 351, per Cotton, L.J. ; re Turner (1897) 1 Ch. 536. _
In such a case as that described in the present section, the
trustee would, before the Act of 1888, have been liable for the
entire loss. Budge v. Gummow, 7 Ch. 719 ; Bell v. Turner (1874)
W.K 113.
" Proper -Investment in all Eespeets." — The section only
applies where the breach consists solely of making too lai'ge
an advance. Be Walker, 59 L.J. Ch. 386 ; Waite v. ParUnson,
85 L.T. 466. The onus of proving that the investment was
in all other respects proper is on the trustee. Jones v. Julian,^
25 L.R. Jr. 45 ; Want v. Campain, 9 T.L.R. 254.
" Authorised Investment." — This means " authorised and
proper," if those terms have the meaning attributed to them
in this note.
" 24th day of December, 1888."— This is the date when the
Act of 1888 came into operation.
For definitions of " trust," " trustee," and " mortgage," see
section 50, infra.
Part II.
VARIOUS POWERS AND DUTIES OF TRUSTEES.
Appointment of New Trustees.
Sect. 10. Section 10. — (1.) Where a trustee^, either
original or substituted, and whether appointed, by
appointing ^ court or Otherwise, is dead, or remains out bf the
new truBtees. United Kingdom for more than twelve months, or
desires to be discharged from all or any of the
trusts or powers reposed in or conferred on him,
or refuses or is unfit to act therein, or is incapable
of acting therein, then the person or persons nomi-
nated for the purpose of appointing new trustees by
the instrument, if any, creating the trust, or if
there is no such person, or no such person able and
willing to act, then the surviving or continuing
trustees or trustee for the time being, or the personal
representatives of the last surviving or continuing
trustee, may, by writing, appoint another person or
other persons to be a trustee or trustees in the place
of the trustee dead, remaining out of the United
Teustee Act, 1893. 49
Kingdom, desiring to be discharged, refusing, or Sect. 10.
being unfit or being incapable, as aforesaid.
(2.) On tbe appointment of a new trustee for
the whole or any part of trust property —
(a) the number of trustees may be increased ;
and
(b) a separate set of trustees may be appointed
for any part of the trust property held on
trusts distinct from those relating to any
other part or parts of the trust property,
notwithstanding that no new trustees or
trustee are or is to be appointed for other
parts of the trust property, and any
existing trustee may be appointed or
remain one of such separate set of trustees ;
or, if only one trustee was originally
appointed, then one separate trustee may
be so appointed for the first-mentioned
part ; and
(c) it shall not be obligatory to appoint more
than one new trustee where only one
trustee was originally appointed, or to fill
up the original number of trustees where
more than two trustees were originally
appointed ; but, except where only one
trustee was originally appointed, a trustee
shall not be discharged under this section
from his trust lihless there will be at
least two trustees to perform the trust ;
and
(d) any assurance or thing requisite for vesting
the trust property, or any part thereof,
jointly in the persons who are the trustees,
shall be executed or done.
(3.) Every new trustee so appointed, as well
before as after all the trust property becomes by
law, or by assurance, or otherwise, vested in him,
shall have the same powers, authorities, and dis-
cretions, and may in all respects act, as if he had
been originally appointed a trustee by the instru-
ment, if any, creating the trust.
50 Tktjstee Act, 1893.
Sect. 10. (4.) The provisions of this section relative to a
trustee who is dead include the case of a person
nominated trustee in a will but dying before the
testator, and those relative to a continuing trustee
include a refusing or retiring trustee, if willing to
act in the execution of the provisions of this section.
(5.) This section applies only if and as far as a
contrary intention is not expressed in the instrument,
if any, creating the trust, and shall have effect
subject to the terms of that instrument and to any
provisions therein contained.
(6.) This section applies to trusts created either
before or after the commencement of this Act.
This section replaces section 31 of the Conveyancing and
Law of Property Act, 1881 (44 & 45 Vict. c. 41), section 6 of
the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), and ^section
6 of the Conveyancing and Law of Property Act, 1892 (55 & 56
Vict. c. 18), which sections are repealed by the present Act
(see section 51, and Schednle, infra) . Section 31 of the Con-
veyancing and Law of Property Act, 1881, was itself a re-
enactment, with slight alterations and additions, of sections 27
and 28 of Lord Cranworth's Act (23 & 24 Vict. c. 145).
"A Trustee." — By virtue of section 50, "the expressions
' trust ' and ' trustee ' include implied and constructive trusts
. . . and the duties incident to the office of personal repre-
sentative of a deceased person." This definition is taken from
the Trustee Act, 1850 (13 & 14 Vict. c. 60, s. 2). N"o such
definition was contained in the Conveyancing and Law of
Property Act, 1881, nor in Lord Cranworth's Act. The pre-
amble to Lord Cranworth's Act clearly indicates that the power
of appointment given by that Act was only intended to apply
to trustees appointed under instruments. Accordingly, in spite
of the reference in the later Acts, to " the instrument, if any,
creating the trust ; " and, in spite of the definition of trustee
in the present Act, it is submitted that the present section can
only apply to express trustees, and not to constructive trustees.
The language of subsections 1, 2, and 3 appears to assume that
the trustees referred to have had trusts or powers " reposed in
or conferred on " them, and that they have been " appointed."
There seems no reason for limiting the section to the case
of trustees with active duties to perform, thus excluding bare
trustees, see note " To perform any trust," infra, p. 64, and the
judgment of North, J., there cited.
The further l[uestion arises whether the section applies to
executors and administrators. Under the Trustee Act, 1850,
it was held by Kay, J., in In re Moore, 21 CD. 778, that, by
virtue of the definition of " trustee " above referred to, the
Trustee Act, 1893. 51
Court, althongli it could not remove an executor, could appoint Sect. 10.
trustees to perform the duties of an executor. In In re Willey
(1890) W.N. 1, the Court of Appeal intimated an inclination
of opinion that In re Moore went too far, and that the Court
could not, under the Trustee Act, 1850, appoint a person to
discharge duties which belonged only to the office of executor,
and not to that of trustee. In Baton v. Daines (189J)) W.N.
32, Kekewich, J., suggested that, in In re Moore, Kay, J., had
not gone so far as to hold that the Act gave power to appoint
a trustee to_'perform the duties of an executor. It would, how-
ever, appear from the judgment of Kay, J., in Brown v. JBurdett,
40 CD. 253, that in his view the Court had this power, though
the new trustee appointed to perform such duties would not
be able to exercise the power of sale given to executors by
Lord St. Leonards's Act. As to appointments by the Court,
the question seems to be set at rest by section 25, subsection
.3 of the present Act (which appears not to have been referred
to in JEaton v. Daines). It is now, however, raised as to the
present section, in consequence of the inclusion of that section
in an Act containing the above definition of trustee, and the
absence of any provision such as that contained in subsection
3 of section 25. It is submitted that the correct view is that
no power is given by this section to appoint a new executor,
or a trustee to perform the duties of an executor; but that
when the duties of an executor are performed, and the property
remains vested in him, as express trustee of the will, the section
gives power to appoint a new trustee in his place. This appears
to be the view acted up5 n by Stirling, J., in In re Harl of
Stamford, Payne v. Stamford (1896) 1 Ch. 288, 297. In cases,
however, in which the executor is not named a trustee in the
"wiUj^t is suggested that, after perforSiing his duties' as exe-
cutor, he will be merely a constructive trustee of any property
remaining under his control, and that the present section will
not apply to him. In such a case, application will have to be
made to the Court for the appointment of a trustee under
section 25 (cf. In re Davis's Trusts, 12 Bq. 214). The case of
re EatcUff (1898) 2 Ch. 352, would seem to be an authority
for such an application, though it is not clear whether in that
case the new trustee was not to be appointed to act as co-
trustee with the executrix. If so, the case suggests that the
executrix was a trustee for the general purposes of the will,
although not named as trustee by the will.
As to the power of the Court to appoint a judicial trustee
to be an executor, see Judicial Trustees Act, 1896, section 1 (2),
p. 181, infra.
Express provision is made by section 3 of the Trustees
Appointment Act, 1890 (53 & 54 Vict. c. 19), making the
provisions of this section apply to the charitable trusts therein
mentioned. The language of the present section is wide enough
to inaiude charitable trusts in general. Be Coates and Parsons,
34 CD. 370.
Express provision is made by section 47 of the present Act,
52 Trustee Act, 1893.
Sect. 10. maMtig ttis section applicable to trustees for the purposes of
the Settled Land Acts, 1882 to 1890 (see p. 156, infra).
"Is dead." — That this includes the case of death in the
lifetime of the testator, see subsection 4. Where, therefore,
a person is nominated by the will to exercise the statutory
power, such person may appoint in the event of the death of
one or all of the trustees in the lifetime of the testator. Where
there is no such person nominated, the power can be exercised
by a trustee who survives the testator, or by the personal
representatives of such trustee ; but if no person nominated as
trustee survives the testator, the power cannot be exercised,
for there has never been any "last surviving or continuing
trustee " whose personal representative could claim to act.
Nicholson v. Field (1893) 2 Ch. 511. As to the power of
the Court to appoint in such a case, see notes, " Whenever it
is expedient to appoint a new trustee (6)," and " Or although
there is no existing trustee," to section 25, infra, pp. 97, 102.
As to when death is to be presumed, see notes to section 26,
subsection 4, infra, p. 109.
"Remains out of the United Kingdom for more than
Twelve Months." — Lord Cranworth's Act made no provision
for this event, which was first provided for by section 31 of
the Conveyancing and Law of Property Act, 1881. Be Walter
and Hughes Contract, 24 CD. 698 ; re Goates and Parsons,
34 CD. 370. The present section was held not to apply in
a case in which during the twelve months the trustee was
in England during one week, and transacted business of the
trust. In re Walker, Summers v. Barrow (1901) 1 Ch. 259.
As to when the Court will appoint a new trustee in place of
a trustee who is abroad, see notes to section 25, infra, p. 98;
and as to vestiDg orders when a trustee is out of the jurisdic-
tion, see sections 26 and 35, infra, pp. 103, 129.
"Desires to be discharged." — As to the retirement of a
trustee without the appointment of a new trustee, see section
11, infra; and as to the general right of a trustee to be dis-
charged from the trusts, see Forshaw t. Higginson, 20 B. 485 ;
Greenwood v. Wakeford, 1 B. 576, 581 ; Courtenay v. Gourtenay,
3 Jo. and Lat*519, 533; re Ghetmynd (1902) 1 Ch. 692.
" From all or any of the Trusts or Powers." — The words
"all or any of" were not in section 31 of the Conveyancing
and Law of Property Act, 1881, and are here inserted in view
of the difficulty raised iA Savile v. Gouper, 36 CD. 520, and in re
Moss's Trusts, 37 CD. 513, that there was no power to appoint,
under that section and section 5 of the Conveyancing Act,
1882, trustees of a part of the trust propert|f, unless there was
a vacancy as to the whole.
" Eefuses ... to act." — A doubt has been «Buggested
whether a " refusing " includes a " disclaiming " trustee ^ewin,
10th edit., p. 767, but see p. 777). There is'r h&weverf^utho-
rity against the proposition, " a disclaiming trustfe never was
Trustee Act, 1893. ♦ 53
a trustee," advanced as thfe ground for this doubt. Be Hadley, Sect. 10
5 D.G. and Sm. 67; Nolle v. Meymott, 14 Beav. 471. 'The
cases last cited show that the expression, "a trustee declining
to act," includes a trustee disclaiming. In several cases it
seems to be suggested that refusing and declining have not
identical meanings. Mitchell v. Nixon, 1 Ir. Eq. Rep. 155 ;
Crook v. Ingoldsby, 2 Ir. Eq. Rep. 375; re Woodgaie, .5 W.R.
448, contra ; Travis v. Ulingworth, 2 Dr. and Sm. 344 ; 34 L.J.
Ch. 481. Although there is no direct authority on the point,
it is submitted that the expression " a refusing trustee," as well
as " a declining trustee," includes a disclaiming trustee. That
disclaimer by a person nominated trustee by a will dates back
to the death of a testator, see Peppercorn v. Wayman, 5 De
G. and Sm. 230. That conduct may amoant to a disclaimer,
see re Birchall, Birchall v. Asliton, 40 CD. 436. As to
renunciation of probate being evidence of disclaimer of trusts
of a mixed fund, see re Gordon, 6 CD. 531. That a trustee
cannot disclaim part of a trust, see re Lord and Fullerton's ^
Contract (1896) 1 Cb. 228. As to disclaimer of powers, see
notes to section 22, infra.
Refusal to act clearly includes refusal by a trustee who
has accepted the trust, and presumably means, not refusal
to act on a particular occasion, bat general refusal to act.
Such a case will generally come under* the provision for
the event of a trustee desiring to be discharged, but will also
include, e.g., the payment of the trust fund into Court under
section 42 re William's Settlement, 4 K. & J. 87, and possibly *
such constant disagreement between trustees as to make action
impossible, cf. Dodson v. Powell, 18 L.J. Ch. 237.
" Unfit to act." — An absconding bankrupt trustee is unfit "
(though not incapable) within the section. Me Wheeler and Be
Bochow (1896) 1 Ch. 315. As a rule, the Court will remove
a bankrupt trustee as unfit to act. Be Barher, 1 CD. 43; re
Adams, 12 CD. 634. In such cases it is submitted that the
donee or continuing trustees could appoint under the present
power. But "where the bankrupt objects, it will usually be «
better (and more especially when a vesting order is required)
to apply to the Court under section 25. An infant is not
"unfit" to act within the meaning of the section, re Tallatire,
(1885) W.N. 191, although an infant trustee will be replaced by
the Court.
The power to appoint a new trustee on the ground of the 4
unfitness of the old trustee is obviously one to be exercised
with extreme caution where there is any possibility of the
unfitness being disputed. In such cases (apart from the case
of bankruptcy referred to above) it may be better to commence
an action for the removal of the existing trustee. That the
Court will not as a rule remove a trustee against his will under
section 25, see notes, p. 96, infra. See also note, "In the
place of a trustee dead, etc.," p. 57, infra.
" Incapable of acting." — This includes the case of unsoundness
•*
54 Trustee Act, 1893.
Sect. 10. of mind, In re Blake (1887) "W.N. 173, and generally per-
sonal incapacity as contrasted with legal incapacity, In re
Watts, 9 Hare, 106; but not the case of infancy, In re Tal-
latire (1885) W.N"., 191. As to the jurisdiction of the Court
to appoint in cases of incapacity, see notes to section 25, infra,
p. 98.
"Persons nominated for the Purpose of appointing New-
Trustees." — Where the instrument nominates persons to ap-
point new trustees, without specifying the events in which
the power is to arise, re Walker and Hughes, 24 CD. 698, or
when the instrument specifies the events, and includes amongst
them the event which has occurred, the section gives power
to such person to appoint. But when the instrument specifies
the events in which the power is to arise, and does not include
amongst them the particular event that has occurred, the
section gives the power, not to such persons, but to the sur-
viving or continuing trustees, or the representatives of the
last trustee. In re Wheeler and Be Mochow (1896) 1 Ch. 315.
Where the instrument authorises the appointment of a new
trustee in the place of a trustee who is desirous of retiring,
it is submitted that the donee will not be a " person nominated
for the purpose of appointing," in the event of a trustee
desiring to retire from part only of the trusts, and will have
no power under this section to appoint a new trustee of part
only of the trust property. See note " For the whole or any
,^ part of the trust property," infra, p. 58.
Where the power is given by express reference to an earlier
^ct, e.g. Lord Cranworth's Act (23 & 24 Vict. c. 145), the
donee will be the person to exercise the statutory power for
the time being, re Blake (1887) W.N. 173, unless perhaps
where the event giving rise to the power was not one con-
templated in the earlier Act. See judgment of North, J., in
re Walker and Hughes, supra.
" No such Person able and willing to act." — This includes
the case of a person nominated for the purpose being a lunatic,
re Blake (1887) W.N. 173, and the case of two nominated
to jointly appoint being unable to agree, re Sheppard's Settle-
ment Trusts (1888) W.N. 234, and possibly also the case where
the person nominated cannot be found, GradocJcY. Witham (1895)
W.N. 75.
In the case of the person nominated for the"* purpose of
appointing being unwilling to appoint, on the ground that an
appointment was unnecessary or inexpedient, it would be un-
desirable for the trustees to override the decision of the person
so nominated, except when such decision is clearly erroneous
or improper.
As to the jurisdiction in lunacy to appoint new trustees
where the donee of a power to appoint is a lunatic, see
Lunacy Act, 1890 (53 Vict. c. 5), sections 128, 129; and re
Shortridge (1895) 1 Ch. 278.
A power of appointing new trustees given to a tenant for
Teustee Act, 1893. 55
life may be exercised after lie lias alienated his interest. Sect. 10.
Hardaker v. Moorhouse, 26 CD. 417. Where the trusts are
being administered by the Court, the persons nominated to
appoint new trustees may appoint, but the Court will see that
they do not appoint improper persons, per Jessel, M.E.., Tem-
pest V. Lord Gamoys, 21 C.D. 571, 578 ; In re Norris, Allen v.
'Norris, 27 C.D. 333 ; In re Gadd, Eastwood v. Glarh, 23 C.D.
134.
" Then the Surviving or Continuing Trustees or Trustee." —
By virtue of subsection 4 (see notes, infra, p. 60), the expression *
" a continuing trustee " includes a refusing or retiring trustee,
if wjlh'ng to act in the execution of the provisions of this
section. But unless it be shown that he is willing and com-
petent to join in making the appointment, the concurrence
of such a fa-ustee is not necessary. Be Goates and Parsons, Si,
C.D. 370; re Norris, Allen v. Norris, 27 C.D. 333.
"Or the Personal Eepresentatives of the Last Surviving
or Continuing Trustee." — The question who are the " personal
representatives " of a last trustee was fully discussed in In re
FarJcer's Trusts (1894) 1 Ch. 707, a case in which a last trustee
of a will by his will appointed " general executors," and also
purported to appoint special executors for the purpose of
executing, in continuation to himself, the trusts of the will
of the original testator. The general executors obtained pro-
bate, and appointed new trustees of the earlier will. It was
held that the appointment was good, and that the concurrence
of the special executors was not required. As to the rights
of general and special executors respectively, see also In re
Cohen's Executors and London Oounty Gouncil (1902) 1 Ch. 187.
The executor of a sole trustee is the personal representative
of " the last surviving " trustee. -Be Shafto's Trusts, 29 C.D. 247.
The personal representative of the survivor of two persons
nominated trustees in a will, both of whom died before the
testator, is not by virtue of subsection 4 a personal repre-
sentative of a "last surviving trustee." Nicholson v. Field,
(1893) 2 Ch. 511. It is submitted that where one of two persons
named as trustees of a will survives the testator and dies, and
the other person named as trustee subsequently disclaims, the
executor of the deceased trustee will be the personal repre-
sentative of "the last surviving trustee" within the language
of the section (for the disclaimer dates back to the death of
the testator. Peppercorn v. Wayman, 5 D.G. and Sm. 230).
The'question whether the personal representatives of a
last trustee are themselves trustees will sometimes arise. In
so far as the property or the power of dealing with the pro-
perty is vested in them, they are, of course, constructive trustees.
Whether they are the trustees of the instrument for all pur-
poses depends on the language of the instrument (see Underbill,
Law of Trusts, 5th edit., pp. 288, 289). It would appear that
only if the instrument mentions the heirs or personal repre-
sentatives of the trustees generally, or of the last surviving
56 Trustee Act, 1893.
Sect. 10. trustee, will the personal representatives be trustees for all
purposes. Mortimer v. Ireland, 11 Jur. 721 ; re Osborne and
Bowlett, 13 CD. 774 ; re Morton and Eallett, 15 CD. 143 ; re
Cunningham and Frayling (1891) 2 Ch. 567; re Pixton and
Tong's Contract (1897) W.K 178 ; 46 W.R. 187 ; Ingl^y and
Norwich Union Insurance Co., 13 L.E. Ir. 326 ; and cf. section
38 (2) of Settled Land Act, 1882, set out p. 157, infra. •
i " May by Writing appoint."' — No obligation is imposed on
I the personal representatives of a last surviving trustee to exercise
the power. Be Sarah Knight's Will, 26 CD. 82.
' Before exercising the power, the donee should communicate
with tenant for life and remainderman, if they are sui juris.
, O'Beilly v. Alderson, 8 Hare 101.
It has been argued that since the power is given to appoint
"by writing," the appointment may be made by will. Be
Pa/rker's Trusts (1894) 1 Ch. 707. Although in that case the
language of the section was held to be "inapplicable to an
appointment by the last surviving trustee in place of himself,
and to take effect at his own death," it seems still open to
argument that an appointment by will by a donee, other than
a last surviving trustee, might be a valid (though doubtless
an improper) exercise of the power. It is obviously desirable
in all cases that appointments should be madejby deed; and
where a vesting declaration is required, this is essential. See
section 12, m/ra.
" Another Person or Persons to be a Trustee or Trustees." —
It has been held under similar powers contained in a settle-
ment that, on the double grounds that the power is fiduciary,
and that "other person" means person other than the donee
of the power, the donees cannot appoint one of themselves to
be a trustee. In re Slceats's Settlement, Sheats v. Hvans, 42 CD.
522 (referred to with approval in re Shortridge (1895) 2 Ch. 278) ;
re Newen, Newen v. Barnes (1894) 2 Ch. 297. In the recent
case of Montefiore v. Ouedalla (1903) 2 Ch. 723, it was held
by Buckley, J., that a power to appoint trustees (not expressly
limited to " other " persons) authorises the donees of the power
of appointment to appoint one of themselves, although " it is
a most salutary rule that they should do so only in special
circumstances." The result, therefore, appears to be that an
appointment by any persons to whom the statutory power is
given, of one of themselves, would be invalid under the section,
if the same construction is to "be placed on the expression
"another person" therein as was gfiven to "other person" in
re Sheats and re Newen cited above. Apart from those words,
such an appointment would, under the general principle laid
down in re Sheats, re Newen, re Shortridge, Tempest v. Gamoys,
58 L.T. 221, and Montefiore v. Guedalla, though not absolutely
invalid, be improper, unless in most exceptional circumstances.
The correctness of the decision in re Sheats as to the meaning
of " other person " is questioned in Farwell on Powers, 2nd edit.,
p. 655.
Trustee Act, 1893. 57
In considering wlio are proper persons to be appointed Sect, 10.
trustees, the principles on which the Court acts when appoint-
ing trustees should be considered. See notes to sections 25
and 47, infra, pp. 99 and 158. It does not, however, follow
that an appointment out of Court of a person whom the
Court would not itself have appointed is invalid. He Earl of
Stamford, Payne v. Stamford (1896) 1 Ch. 288 ; In re Kemp's
Settlsd Estates, 24 CD. 485 ; Foster v. Abraham, 17 Eq. 351 ;
In re Norris, Allen v. Norris, 27 CD. 333.
Section 19 of the Interpretation Act, 1889 (52 & 53 Vict.
c. 63), provides that the expression "person," in every Act
passed after the 1st of January, 1890, " shall, unless the con-
trary intention appears, include any body of persons corporate
or unincorporate." The present section, which, unlike the
section it replaces, is contained in an Act passed after the date
mentioned, appears, therefore, to authorise the appointment of
a corporation to be a trustee. The practical objection to
adopting this course, viz. that a corporation could not hold in
joint tenancy with an individual. Law Guarantee Society v.
Banh of England, 24 Q.B.D. 406, has been removed by the
Bodies Corporate (Joint Tenancy) Act, 1899 (62 & 63 Vict.
c. 20). That the Court had no power under the Trustee Act,
1850, to appoint a corporation trustee, see Billing v. Brogden
(1888) W.N. 238.
" In the Place of the Trustee dead, remaining out of the
United Kingdom, etc." — The effect of the section is to enable
the persons entitled to exercise the power to remove a trustee
without his concurrence, e.g. in the cases of lunacy, absence,
and unfitness, and it is apprehended that this power can be
exercised in proper cases even if the trustee is known to be
unwilling to retire. It therefore appears that in this respect
the power given by the present section to individuals is greater
than that given to the Court by section 25. See notes to that
section, infra, p. 96.
Subsection 2. " On the Appointment of a New Trustee." —
The question arises whether " the appointment of a new trustee "
here referred to is an appointment under the powers of the
present section only, or whether the expression includes an
appointment, however made. It might have been supposed
that the provisions of subsection 2 were only ancillary to those
of subsection 1. The opening words of subsection 3, "every
new trustee so appointed," appear to indicate that all that has
gone before relates to only one method of appointment, namely,
an appointment under subsection 1, and the reference in sub-
section 2 to discharge " under this section " supports this view.
On the other hand, in his note on this subsection, Mr. Wolsten-
holme states that the subsection applies to appointments " under
powers in trust deeds as well as under the statutory powers."
In re Paine's Trusts, 38 Ch. D. 725 ; re Moss's Trusts, 37 Ch. D.
613; re Hetherington's Trusts, 34 Ch. D. 211; and re Neshitt's
Trusts, 19 L.R. Ir. 509, it seems to have been assumed that
58 Teustbe Act, 1893.
Sect. 10, these words were applicable to appointments by the Court under
the Trustee Act, 1850.
" For the Whole or any Part of Trust Property."— These
words do not occur in section 31 of the Conveyancing and Law
of Property Act, 1881. In SaviU v. Gouper, 36 Ch. D. 520, and
in re Moss's Trusts, 37 Ch. D. 513, it was held that under that
section and section 5, subsection 1 of the Conveyancing Act,
1882, there was no power to enable the existing trustees of the
whole property to retire from the trusts as to part by means of
an appointment of new trustees of that part, although this
could be effected under the power of appointing new trustees
given to the Court by section 32 of the Trustee Act, 1850.
The insertion of the words, "all or any of" in subsection 1
(see note above), and of the words " for the whole or any part
of trust property " in subsection 2, appears to remove the
difficulty discussed in those cases.
" The Number of Trustees may be increased." — Similar
provision was formerly contained in subsection 2 of section
31 of the Conveyancing and Law of Property Act, 1881. It
should be noted that the power of appointing an additional
trustee under this section only arises when a vacancy exists.
When there is no vacancy an additional trustee can only be
appointed by the Court. Be Brackenbury's Trusts, 10 Eq. 45 ;
re Qregson's Trusts, 34 CD. 209 ; and see note, " In addition to,"
to section 25, infra, p. 101.
" A Separate Set of Trustees." — Similar provision was
formerly contained in section 5 of the Conveyancing Act, 1882,
as amended by section 6 of the Conveyancing and Law of
Property Act, 1892. Independently of these provisions the
Court had power to appoint separate sets of trustees for
separate parts of the trust property under section 32 of the
Trustee Act, 1850, In re Paine s Trusts, 28 CD. 725 ; re HetJier-
ington's Trusts, 34 CD. 211 ; re Moss's Trusts, 37 CD. 513 ; re
Cotterill's Trusts, (1869) W.N. 183 ; re Gunard's Trusts, 27 W.R.
62 ; re Aston's Trusts, 25 L.R. Ir. 96 ; and also under its ordi-
nary jurisdiction in an administration action, re Grange, Oooper v.
Todd, 81 W.N. 50. Where there were no trustees the Court
appointed new trustees of part only of the trust property, there
being no active duties as to the other part, re Bennis's Trusts,
12 W.R. 575. But an individual donee of a power of appoint-
ment in the usual form had no power to appoint a new trustee
of part only of the trust property. Savile v. Couper, 36 CD.
520; re Moss's Trusts, 37 CD. 513; re Nesbitt's Trusts, 19
L.R. Ir. 509 ; and see note above, "Tor the whole or any part
of trust property."
" Held on Trusts distinct from those relating to any other
Part." — The fact that in certain events the trusts of the
different parts of the trust property may coalesce does not
prevent the trusts being " distinct trusts " for the purpose
of appointment of new trustees. In re Setherington's Trusts,
Trustee Act, 1893. 59
34 CD. 211 ; In re Moss's Trusts, 37 CD. 615. But it would Sect. 10.
seem that unless the parts are presently separable, separate
sets of trustees cannot be appointed. For instance, if property-
is settled upon trust for A for life, and on the death of A, upon
trust as to one moiety for B and as to the other moiety for 0,
it is submitted that separate sets of trustees could not be
appointed in the lifetime of A. On the other hand, if property
is settled as to one moiety upon trust for A for life, and after
the death of A for B, and as to the other moiety upon trust
for A for life, and after the death of A for 0, it is submitted
that separate sets of trustees could be appointed even in the
lifetime of A.
"Not be obligatory to appoint more than one New
Trustee, etc." — Similar provision was formerly contained in
section 31 of the Conveyancing and Law of Property Act, 1881,
subsection 2 (c). Before that Act came into force it appears
to have been doubtful whether under Lord Oranworth's Act, or
under instruments which did not contain special provisions
relating to the matter, one trustee could be appointed in place
of two, or two in place of three, re Mercer, 38 Sol. J. 388 ;
Hulme V. Mulme, 2 M. & K. 682 ; Lonsdale v. Beckett, 4 D.C
& Sm. 73; West of England Bank v. Murcli, 23 CD. 138,
but there was no general rule that to make a valid appointment
all the existing vacancies need be filled up, In re Fagg, 19 L.J.
Ch. 175 ; re Cunningham and Wilson (1877) W.N. 258.
It must be remembered that this section takes effect only
if and as far as a contrary intention is not expressed in the
trust instrument (see subsection 5). An indication of an
intention that the original number of trustees should always
be kept up (cf. Emviet v. ClarJc, 3 Gif . 32 ; re Gun7iingliam and
Wilson, supra) would probably be held to be an expression of a
contrary intention as to this provision.
It must also be remembered that the section imposes no
obligation to appoint, and thus now, as formerly (see Peacock v.
Colling, 33 W.R. 528), the mere fact that he is the sole survivor
does not oblige a trustee to appoint a co-trustee, in cases in
■which the instrument contemplates a single trustee acting.
" Shall not be discharged under this Section." — In the
case of an appointment under this section, therefore, a trustee
cannot be discharged from the trust, unless on the appoint-
ment being completed there will be at least two trustees. The
provision does not apply in the case of appointments made
otherwise than under this section. (As to the question whether
this subsection applies to such last-mentioned appointments,
see note, " On the appointment of a new trustee," supra.) The
result of an attempt to appoint a sole trustee, where two or
more trustees were originally appointed, would appear to be to
make him a co-trustee with the retiring trustees or trustee.
It must be remembered, however, that by virtue of subsection
5 this provision only takes effect subject to the ternis of the
instrument creating the trust.
60 Trustee Act, 1893.
Sect. 10. "Any Assurance or Thing requisite for vesting the Trust
Property." — As to vesting declarations, see section 12, infra.
" Every New Trustee so appointed . . . shall have the same
Powers." — This provision reproduces subsection 5 of section 31
of the Conveyancing and Law of Property Act, 1881, which
subsection was a re-enactment of the concluding provisions of
section 27 of Lord Cranworth's Act (23 & 24 Vict. c. 145) so
far as they related to appointments under that Act. For a
similar provision as to trustees appointed by the Court, see
section 37, infra.
"As well before as after all the Trust Property becomes
. . . vested in him." — As to the doubt formerly existing
whether a new trustee is actually such until transfer of the
estate to him, see Lewin on Trusts, lOfch edit., p. 770. See
also Mara v. Browne (1896) 1 Ch. 199, 213.
Subsection 4. " A Person nominated Trustee in a Will but
dying before the Testator." — This provision was formerly con-
tained in subsection 6 of section 31 of the Conveyancing and
Law of Property Act, 1881, which subsection replaced section 28
of Lord Cranworth's Act (23 & 24 Vict. c. 145). The personal
representative of the survivor of two persons nominated
|f trustees in a will, both of whom died before the testator, is
fnot a personal representative of a "last surviving trustee"
I within subsection 1. Nicholson v. Field (1893) 2 Ch. 511. (See
/ note above, " Or the personal representatives of the last sur-
viving or continuing trustee.")
" A Refusing or Retiring Trustee if willing to act in the
Execution of the Provisions of this Section." — This provision
was formerly contained in subsection 6 of section 31 of the
Conveyancing and Law of Property Act, 1881 (see note, " Then
the surviving or continuing trustees or trustee," supra). Where
the appointment is made not under this section but under a
power in the instrument for the " surviving or continuing
trustees or trustee " to appoint, a retiring trustee has no power
to appoint. In re Goates and Parsons, 34 CD. 370.
Subsection 5. " If and as far as a Contrary Intention is not
expressed." — This is a re-enactment of subsection 7 of section
31 of the Conveyancing and Law of Property Act, 1881.
Section 32 of Lord Cranworth's Act (23 & 24 Vict. c. 145)
was as follows : " None of the powers or incidents hereby con-
ferred or annexed to particular offices, estates, or circumstances
shall take effect or be exerciseable if it is declared in the deed,
will, or other instrument creating such offices, estates, or cir-
cumstances that they shall not take effect ; and where there is
no such declaration, then if any variations or limitations of
any of the powers or incidents hereby conferred or annexed
are contained in such deed, will or other instrument, such
powers or incidents shall be exerciseable or shall take effect
only subject to such variations or limitations."
The insertion in the trust instrument of an express power
Trustee Act, 1893. 61
to appoint new trustees is not, in itself, an expression of an Sect. 10.
intention to exclude tlie present section. Be Goates and Parsons,
34 CD. 370; re Wheeler and Be Bochow (1896) 1 Oh. 315 (in
each of -which cases the express power provided for some, not
all, of the events on which the statutory power arises); Cecil
V. Langdon, 28 CD. 1 (in which case the express power, which
was subject to the consent of the tenant for life, only applied
to filling up vacancies amongst the original trustees) ; In re
Llyyd's Trusts (1888), W.N. 20 (in which case the instrument
expressly adopted the provisions of Lord Cranworth's Act,
section 27) ; and re Sheppard's Settlement Trusts (1888) W.N. 234
(in which case the donees of the express power refused to
exercise it). In the above cases none of the trusts were created
after 1881, but since in the cases re Coates and Parsons and
re Wheeler and De Bochow the trusts were created when section
27 of Lord Cranworth's Act was in force, it is submitted that,
even in the case of trust instruments dated since 1881, the
same rule would apply. See also note above, " Not be obligatory
to appoint more than one new trustee, etc."
"Shall have Effect subject to the Terms of that Instru-
ment." — ^Where the instrument imposes a fetter on the exercise
of a power to appoint new trustees contained therein, e.g. if
it makes the consent of a beneficiary necessary to its exercise,
such fetter will not, by virtue of this subsection, apply to the
exercise of the statutory power, in circumstances in which the
power in the instrument is inapplicable. See judgment of
Fry, L. J., in Cecil v. Langdon, 28 Oh. D. at p. 6. So, too, where
a private Estate Act provided that section 27 of Lord Cran-
worth's Act (23 & 24 Vict. c. 145) should apply to a certain
will " provided that every new trustee of the estate should be
appointed with the approbation of the Court of Chancery," it
was held that the obligation to obtain the approbation of the
Court did not apply to or affect the power given by section 81
of the Conveyancing and Law of Property Act, 1881. Be Lloyd
(1888) W.N. 20.
" Trusts created before or after the Commencement of the
Act." — This subsection (6) replaces subsection 8 of section 31
of the Conveyancing and Law of Property Act, 1881. The
power of appointment given by section 27 of Lord Cranworth's
Act (23 & 24 Yict. c. 145) was not applicable in the case of
trusts created before that Act. The power given by the present
section, however, is applicable in the case of such trusts.
For definitions of "trust," "trustee," "instrument," and
" property," see section 50, infra.
Section 11. — (1.) Where there are niore than Sect, 11.
' two trustees, if one of them by deed declares that he
is desirous of being discharged from the trust, aiid^^j^^^^'^'
if his co-trustees and such other person, if any, as is
I
62 Trustee Act, 1893.
Sect. 11. empowered to appoint trustees, by deed consent to
the discharge of the trustee, and to the vesting in
the co-trustees alone of the trust property, then the
trustee desirous of being discharged shall be deemed
to have retired from the trust, and shall, by the deed,
be discharged therefrom under this Act, without any
new trustee being appointed in his place.
(2.) Any assurance or thing requisite for vesting
the trust property in the continuing trustees alone
I shall be executed or done.
(3.) This section applies only if and as far as a
contrary intention is not expressed in the instrument,
if any, creating the trust, and shall have effect subject
to the terms of that instrument and to any provisions
therein contained.
(4.) This section applies to trusts created either
before or after the commencement of this Act.
This section is a re-enactment of section 32 of the Convey-
ancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41),
which section is repealed by the present Act. See section 51,
and Schedule, infra.
" Trustees." — See note "A trustee," to section 10,supra, p. 50.
For the reasons there discussed, it is submitted that the term
"trustee" is only here applicable to express trustees, and does
not include executors or administrators.
" Where there are more than Two Trustees." — The section
does not enable a trustee to retire so as to leave a sole trustee ;
and cf. section 10, subsection 2 (c), supra, p. 49.
" By Deed." — An appointment under section 10 may be made
" by writing."
" Desirous of being discharged." — Apart from this section, a
trustee may, before acting, disclaim the trust ; and in that case,
of course, no discharge is required. Such disclaimer, to be
valid, must be of the whole of the trust, and not of part only.
Be Lord and FuUerton's Contract (1896) 1^ Ch. 228. As to
disclaimer of powers, see Conveyancing Act, 1882 (45 & 46
Vict. c. 39), section 6 ; re Eyre (1883) W.N. 153 ; and notes to
section 22, infra, p. 85. After accepting the trusts, a trustee may
be discharged by the appointment of a new trustee in his place,
either by an individual, under a power in the instrument or
under section 10 of the present Act, or by the Court, under
section 25, or under its inherent jurisdiction. Except on the
appointment of a new trustee in his place, the trustee can
only be discharged under this section or under a special power
in the instrument, or by the consent of all the beneficiaries, or
Trustee Act, 1893. G3
by the Court acting under its inherent jurisdiction in an action. Sect. 11.
Under section 25 the Court has no jurisdiction to discharge a
trustee without appointing another in his place, and will not
now, for the sake of discharging one trustee, adopt the plan
of reappointing two trustees, in place of themselves and their
co-trustee desirous of retiring. See notes to section 25, infra,
p. 100. As to the general right of a trustee to be discharged
from the trusts, see Forshaiu v. Higgiiuon, 20 B. 485 ; Green-
wood r, Waheford, 1 B. 57L), 581 ; Gourtenay v. Gourtenay, 3 Jo.
& Lat. 519, 533; re Ghctwynd (1902) 1 Ch. 002.
"Discharged from the Trust." — The section does not
authorise the discharge of a trustee from part only of the trust,
though under section 10 a trustee may be discharged from the
trusts of part of the trust property upon the appointment of a
new trustee of such part.
" Shall he deemed to have retired from the Trust and shall
by the Deed he discharged therefrom." — The result of the
retirement of one trustee is, presumably, to vest in the co-
trustees all powers and discretions which would have become
vested in them were the retiring trustee dead, or had he
disclaimed. (As to survivorship of powers, see section 22, infra ;
and as to the eSect of disclaimer in vesting powers in the other
trustees, see Cafe v. Bent, 5 Hare 37.)
" Any Assurance or Thing requisite for vesting the Trust
Property." — The mere discharge of the trustee does not, as in
the case of disclaimer or death, itself vest the property in the
co-trustees. (As to vesting by vesting'declaration, see section
12, subsection 2, infra.)
"A Contrary Intention." — Cf. section 10, subsection 6,
supra, p. 60.
For definitions of " trust,'' " trustee," ." instrument," and
"property," see section 50, infra.
Section 12. — (l.) Where a deed bj which a Sect. 12.
new trustee is appointed to perform any trust
contains a declaration by tbe appointor to the effect Jiugt^pfopCTty
that any estate or interest in any land subject to in new or
the trust, or in any chattel so subject, or the right trusteel"^
to recover and receive any debt or other thing in
action so subject, shall vest iu the persons who by
virtue of the deed become and are the trustees for
performing the trust, that declaration shall, without
any conveyance or assignment, operate to vest in
those persons, as joint tenants, and for the purposes
of the trust, that estate, interest, or right.
(2.) Where a deed by which a retiring trustee
64 Trustee Act, 1893.
Sect. 12. is discliarged under this Act contains such a
declaration as is in this section mentioned by the
retiring and continuing trustees, and by the other
person, if any, empowered to appoint trustees,
that declaration shall, without any conveyance or
assignment, operate to vest in the continuing
trustees alone, as joint tenants, and for the purposes
of the trust, the estate, interest, or right to which
the declaration relates.
(3.) This section does not extend to any legal
estate or interest in copyhold or customary land,
or to land conveyed by way of mortgage for
securing money subject to the trust, or to any
such share, stock, annuity, or property as is only
transferable in books kept by a company or other
body, or in manner directed by or under Act of
Parliament.
(4.) For purposes of registration of the deed
in any registry, the person or persons making the
declaration shall be deemed the conveying party
or parties, and the conveyance shall be deemed to
be made by him or them under a power conferred by
this Act.
(5.) This section applies only to deeds executed
after the thirty-first of December one thousand
eight hundred and eighty-one.
This section replaces section 34 of the Conveyancing and
Law of Property Act, 1881, which section is repealed by the
present Act. See section Sl, and Schedule, infra.
^ " Where a Deed by which a New Trustee is appointed to
perform any Trust contains a Declaration." — The vesting
declaration authorised by the present section can only be made
by deed, and only by the deed appointing a new trustee. The
appointment may be one made either under section 10 or
under a power in the trust instrument.
The deed will require a 10s. stamp as an appointment of
new trustees, and a further 10s. stamp as a conveyance. Sadgett
V. Commissioners of Inland Revenue, 3 Ex. Div. 46 ; section 62
of Stamp Act, 1891.
" To perform any Tru|J." — These words do not imply that
the trustee must have some substantial duty to perform, but
include a bare trustee. Per North, J., London and County
BanUng Co. v. Goddard (1897) 1 Ch. 642.
Trustee Act, 1893. - 65
" That any Estate or Interest in any Land subject to the Sect. 12.
Trust.'' — The estate and interest need not, at the time of the
declaration, remain vested in the old trustees. Thus where a
mortgagor of land by deposit of deeds declared himself trustee
of the legal estate for the mortgagee, and later conveyed the
legal estate to a subsequent incumbrancer with notice of the
prior mortgage, it was held that a vesting declaration, in a deed
appointing new trustees of the legal estate, operated to divest the
estate from the second mortgagee. London and County BanJcing
Co. V. Goddard (1897) 1 Ch. 642 ; and see especially the judgment
of North, J., S.C, pp. 660, 651. It is submitted that, had the
second mortgagee in that case had no notice of the prior
mortgage, the land vested in him would not have been " land
subject to the trust," and that the vesting declaration would
not have operated to'divest it. It is conceived that the doubt
suggested by the learned editor of Lewin on Trusts (10th edit.,
pp. 773, 774), whether the decision in the last-mentioned case
does not go too far, is not well founded.
It is further submitted that the vesting declaration will not
operate to vest a legal estate which has never been in the
trustees, and, e.g., could not operate to get in a bare legal estate
outstanding in a stranger at the date of the declaration of the
trusts.
"Any Land subject to the Trust." — It is submitted that
this can only apply to land in England or Ireland. By virtue
of section 41 of the present Act, and section 2 of the amending
Act of 1894, the High Court in England, and the High Court
in Ireland, may make vesting orders of land and personal estate
in any part of His Majesty's dominions except Scotland.
" The Persons who by virtue of the Deed become and are
the Trustees for performing the Trusts."' — These are the new
trustees, together with the continuing trustees (if any). »
" That Declaration shall, without any Conveyance or Assign-
ment, operate to vest." — It is submitted that the appointment
of new trustees in itself vests all equitable interests in the
persons who upon such appointment are the trustees, and that
a conveyance, assignment, or vesting declaration is, strictly,
only necessary for vesting the legal estate. Cf. Warhurton v.
Sandys, 14 Sim. 622 ; Bodson v. Powell, 18 L.J. Ch. 237 ; see
also Wolstenholme, Conveyancing and Settled Land Acts, 8fch
edit., p. 222 ; Key and Elphinstone, Precedents, 6th edit., p. 104 ;
and for a contrary view, Hood and Challis, Conveyancing and
Settled Land Acts, 8th edit., p. 370.
That a vesting declaration may operate to vest a legal estate
which the outgoing trustee could not himself convey, see note
above, " That any estate or interest, etc.," supra, p. 64.
" Any Legal Estate or Interest in Copyhold or Customary
Land." — These must be conveyed by surrender and admittance
in the proper form. Thus the rights of the lord of the manor
are preserved intact. In case of difB.culty in obtaining the
F
66 Trustee Act, 1893.
Sect, 12. surrender, application must be made to the Court for a vesting
order, under section 26, and, when desired, section 34.
" Land conveyed by Way of Mortgage." — A vesting declara-
tion as to mortgage lands would necessarily bring the trusts
upon the title of the mortgage property (see observations of
North, J., in London and Banking Co. v. Qoddard (1897) 1 Cb.
642, at p. 649), and accordingly -where a transfer could be
obtained in the usual form, it would not be desirable, even if
possible, to make a vesting declaration. In case of difficulty
in obtaining a transfer in the usual form, it was doubtless
considered that the mortgagor was entitled to be secured the
protection of a vesting order of the Court, and the consequent
benefit of section 40 (p. 142, infra). Where difficulty is
experienced in obtaining a transfer, application must be made
to the Court for a vesting order under section 26. Be Harrison's
Settlement (1883) W-N. 31 ; re Keeley's Trusts, 53 L.T. 487.
The exception is not restricted to a legal as distinguished
from an equitable estate in the mortgaged land, but it has no
application to the right to receive the mortgage moneys, which
right accordingly may be dealt with by a vesting declaration.
The exception does not prevent an equitable mortgagee (under
a mortgage deed by which the mortgagor has declared himself
a trustee of the legal estate for the mortgagee) from making
a vesting declaration on the appointment of a new trustee of
the legal estate under a power in the mortgage deed. London
and County Banking Co. v. Goddard (1897) 1 Ch. 642.
" Transferable in Boots kept by a Company." — Since it is
the universal rule with English companies (whether under the
Companies Acts or not) not to recognise trusts on their
registers, great inconvenience would be caused if such com-
panies were required to recognise vesting declarations made
under this section. Where difficulty is experienced in obtain-
ing a transfer of shares from the registered holder or his
personal representatives, application must be made to the Court
for a vesting order, under section 35. Be Harrisons Settlement
(1883) W.N. 31.
"Registration of the Deed in any Registry." — Subsection 4
relates to registration of deeds, as in Yorkshire and Middlesex,
not to registration of title under the Land Transfer Acts, 1875
and 1897. With regard to registration of title under the
Land Transfer Acts, Rule 151 of the Land Transfer Rules,
1903, provides that when the power of disposing of registered
land has by virtue of the operation of any statutory power
become vested in some person other than the registered pro-
prietor (as, for instance, under this section), and the registered
proprietor refuses to execute a transfer, or his execution of a
transfer cannot be obtained, or can only be obtained after undue
delay or expense, the registrar may, after due notice under the
Land Transfer Rules to such proprietor, and on production of
the land certificate and such evidence as he may deem
Trustee Act, 1893. 67
sufficient, make such entry in or correction of the register as Sect. 12.
under the circumstances he shall deem fit. The power conferred
on the registrar by Rule 161 is extended by Rule 174 to
registered charges.
" The 31st of December, 1881."— This is the date since which
the Conveyancing and Law of Property Act, 1881, has been in
operation.
For definitions of " trustee," " trust," " land," " conveyance,"
" mortgage," " stock," and " property," see section 50, infra.
Purchase and Sale.
Section 13. — (I.) Where a trust for sale or a Sect. 13.
power of sale of property is vested in a trustee, he
may sell or concur with any other person in selling ^°7t*ee°for
all or any part of the property, either subject to sale to sell by
prior charges or not, and either together or in lots, *'*°*^°'^' ®'°-
by public auction or by private contract, subject to
any such conditions respecting title or evidence
of title or other matter as the trustee thinks fit,
with power to vary any contract for sale, and to
buy in at any auction, or to rescind any contract
for sale and to re-sell, without being answerable for
any loss.
(2.) This section applies only if and as far as a
contrary intention is not expressed in the instrument
creating thd trust or power, and shall have effect
subject to the terms of that instrument and to the
provisions therein contained.
(3.) This section applies only to a trust or
power created by an instrument coming into opera-
tion after the thirty-first of December one thousand
eight hundred and eighty-one.
This section replaces section 35 of the Conveyancing and
Law of Property Act, 1881, which section is now repealed. See
section 51, and Schedule, infra.
" Trust for Sale or Power of Sale." — In the absence of context
a trust for, or power of, sale, means power to sell for money.
Payne v. Cork Go. (1900) 1 Ch. at p. 3] 4. Trustees cannot sell
for shares or securities of a company without express authority,
or the sanction of the Court, re Morrison (1901) 1 Ch. 701 ; re
New (1901) 2 Ch. 534 ; re Tollemache (1903) 1 Ch. 457 ; nor
in consideration of a rent-charge (Sugden on Powers, 8th edit..
68 Trustee Act, 1893.
Sect. 13. p. 277 ; Harwell on Powers, 2nd edit., p. 553) ; nor, in the case
of leaseholds, by sub-demise for the whole term less one day,
re Walker and Oakshott (1901) 2 Oh. 383; neither should
trustees sell at a price to be fixed by valuation (Williams on
i Vendor and Purchaser, p. 280) ; nor give an option to purchase
' at a future time. Clay v. Bufford, 5 De G. & Sm. 768 ; Oceanic
Steam Go. v. Sutherbury, 16 CD. 236.
" Property." — See definition, section 50, post, p. 161.
"Trustee." — See subsections 2 and 3, which appear to
limit the operation of the section to trusts or powers created
by instrument. It is open to question whether an administrator
is a trustee within the section. And see definition of " instru-
ment " in section 50, post, p. 161.
Mortgagees are given similar powers by section 19 of the
Conveyancing and Law of Property Act, 1881.
" Concur ... in selling." — Apart from statutory authority,
trustees with a trust for, or power of, sale are justified in
concurring with other persons in a joint sale if (1) such a
m.ode of sale is beneficial, (2) the purchase-money is ap-
portioned before completion and the apportioned share of the
trustees is duly paid to them, and (3) the apportionment is
made by the trustees acting under proper advice. Be Cooper
and Hajrleoh, 4 CD. 802, at p. 814; and see re Parker and
Beech's Contract (1887) W.N". p. 27.
The proper mode of apportioning the prices of a life estate
and a reversion when sold together for a lump sum, is to value
each interest separately, not to put a value on one and deduct
that from the total price. Be Cooper and Harlech, supra ; Morris
V. Debenham, 2 CD. 540.
"Any Part of the Property." — These words do not authorise
a sale of fixtures apart from the land to which they are annexed;
re Yates, 38 CD. 112 (a case on section 19 of the Conveyancing
and Law of Property Act, 1881), nor to sell a house in flats, re
Yates, at p. 121. The words mean that what is sold should be
a separable part of the trust property in the state in which
it was subjected to the trust (see re Yates, supra). As to sale
of surface apart from minerals, see section 44, post, p. 149.
A conveyance, under this section, of part of the trust
property, carries all legal incidents ordinarily accompanying a
grant, as, for instance, appurtenances such as ways over the
grounds of third persons, and (although the section does not
authorise the mere grant of an easement : Bayrell v. Hoare,
12 A. & E. 356) also apparent continuous easements over the
land retained. Born v. Turner (1900) 2 Ch. 211. Thus on a
sale of a house, with windows overlooking vacant land retained
by the trustees, there would pass to the purchaser a right to
access of light over the land retained. Born v. Turner, supra.
" Subject to any such Conditions." — As to the conditions
which may be inserted on a sale of business as a going concern,
cf. Hawksley v. Ouiram (1892) 3 Ch, 359.
Trustee Act, 1893. 69
Trustees may act upon the power given by the Sale of Land Sect. 13.
by Auction Act, 1867, and the Sale of Goods Act, 1893,
section 58, respectively, to fix a reserve price, and reserve the
right of bidding. Be Peyton, 30 Beav. 262 (decided before the
passing of either of the above Acts). Indeed it is their duty so
to do (see note to re Peyton, supra).
Trustees may make all such conditions as a prudent and
reasonable owner selling in his own right would impose,
Falkner v. Equitahle Reversionary Society, 4 Drew. 352, but
notwithstanding section 14, infra, it still behoves them not to
" damp " the sale by depreciatory conditions ; for although
under section 14 the purchaser cannot raise any objection, a
sale under depreciatory conditions is a breach of trust, for
any loss consequent on which the trustees are personally
responsible.
" Power to vary or rescind." — Such a power was held not
to be unduly depreciatory. Falkner v. Equitable Reversionary
Society, supra.
"Without being answerable for any Loss." — These words
do not protect from loss arising from undue delay in reselling.
Taylor v. Tabrum, 6 Sim. 281.
" Contrary Intention." — Contrast the language of section 1,
and of section 17, subsection 5.
" 31st of December, 1881."— This is the date since which
the Conveyancing and Law of Property Act, 1881, has been in
operation.
For definitions of "trust," "trustee," "instrument," and
" property," see section 50, infra.
Section 14. — (1.) No sale made by a trustee Sect. 14.
shall be impeached by any beneficiary upon the p^^g^ ^^ ^^^
ground that any of the conditions subject to which Bubjeot to
the sale was made may have been unnecessarily depreciatory
1 • 1 ii i xi conditions.
depreciatory, unless it also appears that the con-
sideration for the sale was thereby rendered in-
adequate.
(2.) No sale made by a trustee shall, after the
execution of the conveyance, be impeached as
against the purchaser upon the ground that any
of the conditions subject to which the sale was
made may have been unnecessarily depreciatory,
unless it appears that the purchaser was acting in
collusion with the trustee at the time when the
contract for sale was made.
(3.) No purchaser, upon any sale made by a
70 Trustek Act, 1893.
Sect. 14. trustee, shall be at liberty to make any objection
against the title upon the ground aforesaid.
(4.) This section applies only to sales made after
the twenty-fourth day of December one thousand
eight hundred and eighty-eight.
This section replaces section 3 of the Trustee Act, 1888,
Trhich section is repealed by the present Act. See section 51,
and Schedule, infra-
To sell under conditions unnecessarily depreciatory is a
breach of ti^nst on the part of trustees (see ante, p. 69). In
Bance v. QoldingJiam, 8 Ch. 902, the Court, at the suit of a
cestuis que trust, restrained a purchaser from completing a
purchase under conditions held to be unduly depreciatory.
In Dunn v. Flood, 28 O.D. 586, the Court held that a purchaser
could refuse to complete on the ground that the conditions
■were depreciatory. The present section in the interests of
vendors and purchasers of real estate curtails the rights of
the cestuis que trust, and abolishes that of a purchaser, to
object to the stringency of the conditions under which trustees
sell.
"24th of December, 1888."— The date on which the Trustee
Act, 1888, came into operation.
For definitions of " trustee " and " conveyance," see section
60, infra.
Sect. 15. Section 15. — A trustee who is either a vendor
or a purchaser may sell or buy without excluding .
under 37 & 38*^16 application of section two of the Vendor and
Vict. c. 78. Purchaser Act, 1874.
This section replaces section 3 of the Vendor and Purchaser
Act, 1874, which section is repealed by the present Act. See
section 51, and Schedule, infra.
Section 2 of the Vendor and Purchaser Act is as follows : —
" In the completion of any such contract as aforesaid, and
" subject to any stipulation to the contrary in the contract, the
"obligations and rights of vendor and purchaser shall be
" regulated by the following rules ; that is to say —
" First — Under a contract to grant or assign a term of
" years, whether derived or to be derived out of a freehold or
" leasehold estate, the intended lessee or assign shall not be
" entitled to call for the title to the freehold.
" Second — Recitals, statements, and descriptions of facts,
" matters, and parties contained in deeds, instruments. Acts of
" Parliament, or statutory declarations, twenty years old at the
" date of the contract, shall, unless and except so far as they
" shall be proved to be inaccurate, be taken to be sufficient
" evidence of the truth of such facts, matters, and descriptions.
Trustee Act, 1893. 71
"Third — The inability of the vendor to furnish the Sect. 15.
" purchaser with a legal covenant to produce and furnish
" copies of documents of title shall not be an objection to title
"in case the purchaser will, on the completion of the contract,
" have an equitable right to the production of such documents.
" Fourth — Such covenants for production as the purchaser
" can and shall require shall be furnished at his expense, and
" the vendor shall bear the expense of perusal and execution
" on behalf of and by himself, and on behalf of and by necessary
" parties other than the purchaser.
" Fifth — ^Where the vendor retains any part of an estate to
" which any documents of title relate, he shall be entitled to
" retain such documents."
Section 2, Rule 1 of the Vendor and Purchaser Act, subject
to any stipulation to the contrary in the contract, precludes an
intended lessee or assignee of a lease from calling for the title
to the freehold. This rule, however, does not prevent such
lessee or assignee having constructive notice of his lessor's title,
Patman v. Harland, 17 Ch. D. 353 ; Mogridge v. Glapp (1892)
3 Ch. 382; Imray v. Oakshette (1897) 2 Q.B. 229, and this
presumably is not altered by the provisious of section 3 of
the Conveyancing Act, 1882, as to constructive notice. See
Eolloway Brothers, Ltd. v. Hill (1902) 2 Ch. 612.
The effect of section 3 (1), of the Conveyancing and Law of
Property Act, 1881, is, in the case of an assignment of an
underlease, to preclude the intended assignee from calling for
the title to the leasehold interest, out of which the underlease
is derived, and the effect of section 13 (1) of the same Act is,
in the case of the grant of an underlease to be derived out of
an existing underlease, to preclude the intended sub-lessee from
calling for the title to the leasehold interest, out of which the
existing underlease is derived. Gosling v. Woolf (1893) 1 Q.B.
39 (in the head note to which case the law would appear to be
correctly stated, though the judgment, it is submitted, suggests
an erroneous construction of section 3 (1)).
Section 66 (3) and (4) of the Conveyancing and Law of
Property Act, 1881, protects trustees from liability in respect
of any omission to negative the above stipulations contained in
that Act.
It is submitted that, in spite of the comprehensive expressions
of Rule 1 of section 2 of the Vendor and Purchaser Act, and of
section 66 (1), (3), and (4) of the Conveyancing and Law of
Property Act, and notwithstanding the omission from the present
section of any such express condition as that in section 8 (3)
of the present Act, trustees would not be protected in cases
in which the omission to negative the stipulations of those Acts
amounted to negligence, or to a want of such reasonable care
as may be expected of a business man in dealing with his own
property. That the omission to exclude in cases in which a
substantial premium is to be paid, or snbstantial sums laid out
upon the land to be demised, might be held to amount to such
negligence, is suggested by a consideration of the judgments
72
Trustee Act, 1893.
Sect. 15. in tte above cited cases, Paiman v. Marland (see p. 359), and
Imray v. Oakshette (see p. 229). Whether or not the trustees
would, under the above sectionfl, be protected from personal
liability, it is clear that in such cases the right to call for a
proper title should be reserved.
It must further be remembered that there is no statutory
provision precluding an intending under-lessee from calling for
the title to the existing lease or underlease, out of which the
intended underlease is to be derived. In such a case the
trustees would clearly be responsible if loss were incurred by
the omission to call for an abstract, and production of the
existing lease or underlease, and of any instruments by which
the same had been dealt with. So, in taking an assignment of
a lease or underlease, such lease or underlease and documents
of title showing dealings with such lease or underlease should
of course be abstracted and produced. The result is that the
documents which, in the case of the grant of an underlease,
or the assignment of a lease or underlease, can be called for
without special conditions, are those which, in the ordinary
course, would necessarily be in the hands of the intending
lessor, or assignor, or his mortgagees, but not including any
relating to the freehold title. This rule, however, must be
read subject to section 1 of the Vendor and Purchaser Act,
1874, which provides that, in the case of a sale of land, forty
years shall be a sufficient root of title. The eSect of that
section is that in the case of an existing lease or underlease
more than forty years old, which is to be sold, or out of which
an underlease is to be granted, the existing lease or underlease
and the title thereto for forty years next before the contract,
need alone be abstracted and produced under an open contract.
The rule must also be read subject to section 8 (3) of the present
Act, which contains provisions protecting trustees who, in lending
money on leasehold security, dispense with production of the
lessor's title, and who, in purchasing or lending money, accept
a shorter title than a purchaser is entitled to demand, " if, in
the opinion of the Court, the title accepted be such as a person,
acting with prudence and caution, would have accepted."
The above sections of the Vendor and Purchaser Act, 1874,
and Conveyancing and Law of Property Act, 1881, do not
apply to mortgages.
For definition of the word " trustee," see section 50, infra.
Sect. 16.
Married
woman as
bare trustee
may convey
Section 16. — When any freehold or copyhold
- hereditament is vested in a married woman as a
bare trustee she may convey or surrender it as if
she were 2^ feme sole.
This section replaces section 6 of the Vendor and Purchaser
Act, 1874 (37 & 38 Vict. c. 78), which section is repealed by
the present Act. See section Sl, and Schedule, injra.
Trustee Act, 1893. 73
•'Freehold or Copyhold Hereditaments."— The section does Sect. 16.
not apply to leaseholds. As to the eSect of this omission, see
p. 74, infra.
"Bare Trustee." — The expression is somewhat ambiguous.
The better opinion seems to be that a bare trustee means a
trustee to whose office no duties were originally attached, or
who, although such duties were originally attached to his
office, would, on the requisition of his cestuis que trust, be
compellable in equity to convey the estate to them, or by their
direction, Ghristie v. Ovington, 1 CD. 279. This definition,
though not approved of by Jessel, M.R., in Morgan v. Swansea
Urban Authority, 9 CD. 582, was approved by Stirling, J., in
re Gunmngham and Frayling (1891) 2 Ch. 667. Compare
subsection 2 of section 18, post, p. 78.
A title was made under the repealed section in re Docwra,
29 CD. 693, although the married woman was a trustee for
sale, and had a beneficial interest. The circumstances, how-
ever, in that case were peculiar, for a sale had been made
under an order of the Court, and the trustee had therefore
no duty to perforin, except to obey the order of the Court.
"May convey or surrender as if she were feme sole." —
The Married Women's Property Act, 1882, does not enable
a married woman, trustee of land, to convey the land as a
feme sole. Be Harhness and Allsopp (1896) 2 Ch. 358.
The decision in re Harkness and Allsopp appears to be
equally applicable to the case of land vested in a married
woman as mortgagee to secure trust moneys, for, notwith-
standing the contention to the contrary raised in argument in
re Howgate v. Osborn (1902) 1 Ch. 451, it is submitted that
the mortgage land cannot be vested in the married woman as
her separate property. It is submitted, therefore, that the
Married Women's Property Act, 1882, though it enables a
married woman not a trustee (re Brooke and Fremlin (1898)
1 Ch. 647), does not enable a married woman trustee to convey
mortgaged lands as a feme sole. It remains to be considered in
what cases the present section is available for that purpose.
A married woman mortgagee, upon payment of principal,
interest, and costs by any person entitled to redeem, becomes
a bare trustee of the mortgaged property for the mortgagor
or his nominee, and, where that property is a freehold or copy-
hold hereditament, can convey under this section. This is the
case whether the mortgage moneys belong to the woman for
her separate use, re Brooke and Fremlin s Contract (1898) 1
Ch. 647, or upon trust for others, re Howgate and Oshorn's
Contract (1902) I Ch. 451, at p. 456; and whether the
assurance be a reconveyance to the mortgagor, re Brooke and
Fremlin, supra; re Howgate and Osborn, supra, or a transfer
to a transferee by his direction, re West and Hardy (1904)
1 Ch. 145 ; also reported in 89 L.T. 579, where it appears that
the mortgagor concurred in the transfer; and whether the
74
Trustee Act, 1893.
Sect. 16. married woman be sole mortgagee, re Brooke and Fremlin,
supra ; re Sowgate and Osborn, supra, or entiWed jointly with
others, re West and Hardy, supra. The dates of the mortgage
and of the marriage are, for this purpose, alike immaterial.
A married woman mortgagee, upon payment of principal,
interest, and costs by a person not entitled to redeem, does not
necessarily become a bare trustee for such person. It is sub-
mitted that she would only so become a bare trustee if she
had contracted to transfer, and that in the case of her being
a trustee of the mortgage moneys, and consequently of the
mortgage security, she would have no power so to contract,
Avery y. Griffin, 6 Eq. 606. In the result, therefore, it is
submitted that a mai-ried woman, in whom a mortgage is vested
to secure trust moneys, cannot convey the mortgaged land under
this section upon payment by an intending transferee, except
when acting under the direction of some person entitled to
redeem.
A married woman mortgagee, who has not received pay-
ment of principal, interest, and costs, is not a trustee for the
mortgagor, re Brooke and Fremlin, supra ; Warner v. Jacob, 20
CD. 220, and, in the case of a trust mortgage, can only convey
under this section if it can be shown that she is a bare trustee
for the transferee. It is submitted that she is such a bare
trustee when a new trustee has been appointed, or in any case
in which the right to receive the mortgage money has become
vested in another person, e.g. in the case of mortgaged freeholds
becoming (under the old law) vested in the heir of a deceased
mortgagee, and the right to the moneys being vested in his
executors. Cf. re Skitter, 4 W.E. 791. ►
In re West and Ha/rdy, supra, Farwell, J.,, decided that a
purchaser was not entitled to proof that a married woman
mortgagee, who had conveyed the mortgaged freeholds on a
transfer of the mortgage, was not a trustee of the mortgage
moneys. He appears to have so decided on the ground that,
having no notice of any trusts, the purchaser would obtain a
good title. It is submitted, however, that the capacity of the
married woman to convey either a legal or an equitable interest
in land cannot depend on notice or want of notice, and that in
every case where a conveyance by a married woman without
the concurrence of her husband appears on the title, it is
equally necessary for the purchaser to satisfy himself that, in
fact, the land belonged to the woman beneficially, as that her
marriage had taken place, or the land had been acquired by
her, subsequent to 1882.
It will be observed that the present section does not apply
to leaseholds, and accordingly in the case of leaseholds vested
in a married woman trustee — ^whether by way of mortgage or
otherwise — the assignment must be made by the husband.
For definition of " trustee,'' see section 50, infra.
Trustee Act, 1893. 75
Various Po^mrs and Liabilities.
Section 17. — (1.) A trustee may appoint a Sect. 17.
solicitor to be his agent to receive and give a
discharge for any money or valuable consideration authori*se
or property receivable by the trustee under the receipt of
trust, by permitting the solicitor to have the ^ntJr or
custody of, and to produce, a deed containing any solicitor.
such receipt as is referred to in section fifty-six of
the Conveyancing and Law of Property Act, 1881 ;
and a trustee shall not be chargeable with breach
of trust by reason only of his having made or
concurred in making any such appointment ; and
the producing of any such deed by the solicitor
shall have the same validity and effect under the
said section as if the person appointing the solicitor
had not been a trustee.
(2.) A trustee may appoint a banker or solicitor
to be his agent to receive and give a discharge for
any money payable to the trustee under or by
virtue of a policy of assurance, by permitting the
banker or solicitor to have the custody of and to
produce the policy of assurance with a receipt
signed by the trustee, and a trustee shall not be
chargeable with a breach of trust by reason only
of his having made or -concurred in making any
such appointment.
(3.) Nothing in this section shall exempt a
trustee from any liability which he would have
incurred if this Act had not been passed, in case
he permits any such money, valuable consideration,
or property to remain in the hands or under the
control of the banker or solicitor for a period longer
than is reasonably necessary to enable the banker
or solicitor (as the case may be) to pay or transfer
the same to the trustee.
(4.) This section applies only where the money
or valuable consideration or property is received
after the twenty-fourth day of December one
thousand eight hundred and eighty-eight.
(5.) Nothing in this section shall authorise a
76 * Trustee Act, 1893.
Sect, 17. trustee to do anything whicli he is in express terms
^forbidden to do, or to omit anything which he is.
in express terms directed to do, by the instrument
creating the trust.
Subsections 1, 2, 3, and 4 re-enact in slii^lLtly altered
language section 2 of the Trustee Act, 1888, which is repealed
by the present Act (see section 61, and Schedule, infra). Sub-
section 5 is taken from section 12 of the same Act.
Subsection 1. — This subsection nullifies the decision in re
Bellamy and the Metropolitan Board of Works, 24 CD. 387,
where it -was held that, as trustee vendors could not properly
authorise their solicitor to receive purchase-money payable to
them, their solicitor could not give a good discharge for it
under section 66 of the Conveyancing and Law of Property
Act, 1881. That section enacts that, " Where a solicitor pro-
duces a deed, having in the body thereof, or endorsed thereon,
a receipt for consideration money, or other consideration, the
deed being executed, or the indorsed receipt being signed, by
the person entitled to give a receipt for that consideration, the
deed shall be sufficient authority to the person liable to pay,
or give the same for his paying, or giving the same to the
solicitor, without the solicitor producing any separate or other
direction or authority in that behalf from the person who
executed or signed the deed or receipt."
The deed must be actually produced. Bay v. Woolviich B.S.,
40 CD. 491.
The solicitor referred to is the solicitor acting on behalf
of the person sought to be charged, Bay v. Woolwich B.S.,
40 CD. 491 ; re Metling and Merton (1893) 3 Ch. 269, and
he must be permitted to have the custody of the deed, and to
produce it, otherwise the purchaser is not protected, re Betling
and Mertori; supra; see King v. Smith (1900) 2 Ch. 425.
Nevertheless, in ordinary cases, and in the absence of some
special reason for so doing, a purchaser is not entitled to
require proof that the solicitor has his client's permission to
have custody of the deed, and to produce it, re Betling and
Merton, supra. In most cases the principle of estoppel would
apply to prevent the person who executed and parted with
possession of the deed disputing the authority of his solicitor
to receive the money on production of the deed, King v. Smith
(1900) 2 Ch. 426.
When a solicitor is authorised to receive money on behalf
of a client, a valid tender can be made to a clerk of the solicitor
who purports to have his master's authority to accept or reject
a tender. Moffatt v. Parsons, 5 Taunt. 307; 16 R.R. 506;
Wilmott V. Smith, 3 Car. & P. 453; 31 R.R. 732; Bingham
V. AlVport, 1 N. & Manning, 398; 38 R.R. 386; Finch v.
Boning, 4 C.P.D. 143. So it is conceived a solicitor autho-
rised to receive consideration money under section 66 of the
Conveyancing and Law of Property Act, 1881, or this section.
Trustee Act, 1893. 77
can act by a clerk. In subsection 2 the banker authorised to Sect. 17.
receive policy moneys must in practice always act by deputy.
See also Day v. Woolwich B.8., 40 CD. 491.
The production of a deed executed by an attorney of
a trnstee under a general power of attorney is not sufficient.
Re Eetling and Merton (1893) 3 Ch. 269.
One of several trustees, not being a solicitor, cannot be
authorised by the others to receive the purchase-money on
behalf of all, re Flower and Metropolitan Board of Wo7-ks, 27
C.D. 592 ; but if one of the trustees is a solicitor, it is con-
ceived that the subsection enables payment to be made to him
in his capacity of solicitor exercising the statutory authority.
" A Trustee." — See notes to subsection 5, infra.
Subsection 2. — See notes to subsection 1.
Subsection 3. — It is no part of the duty of a solicitor, as
such, to receive trust money. Wyman v. Paterson (1900) A.C.
271. Hart, L.C., observed {exp. Townsend, 1 Moll. 139) that
if trustees permitted their solicitor to receive trust money, and
he became bankrupt next day, they would be held responsible.
This is not in accordance with modern opinion, and the ques-
tion has been set at rest by this subsection, per Lord Mac-
naghten, Wyman v. Paterson, supra, at p. 280. This subsection
must be taken to be a statutory declaration of the law in this
country, and, by analogy, it must be treated as applicable in
the case of Scottish trustees, Wyman v. Paterson, supra ; as
to Scottish trustees, see notes to section 52, post. Six months
■was held to be an unreasonable time in Wyman v. Paterson,
supra. As an ordinary rule, it is conceived, the money should
be put under the control of the trustees at the latest vsrithin
a day or two following its receipt. But it has been said (^per
Lord James of Hereford in Wyman v. Paterson, supra), 'if a
new security was in sight, or could fairly be anticipated
promptly to come into existence, the money might, without
breach of trust, remain, with the object of being so transferred,
in the hands of the solicitor, that solicitor being employed for
a purpose that was not completed at the time when the money
was in his hands."
As to the indemnity of a trustee in respect of the acts of
agents, see section 24, post, p. 91.
Subsection 4.—" 24th day, of December, 1888," the date
apon which the 1888 Act came into operation.
Subsection 5. " A Trustee. ... by the Instrument creating
the Trust." — The reference to "instrument creating the trust"
fppears to show that the section only applies to trusts created
y an instrument. It is open to question whether an adminis-
trator is a trustee within the section.
The subsection is taken from section 12 of the Trnstee
Act, 1888.
Tor definitions of "trust," "trustee," "instrument," "pro-
perty," and " transfer," see section 50, infra.
78
Teustee Act, 1893.
Sect. 18.
Power to
insure
building.
Section 18. — (1.) A trustee may insure against
'loss or damage by fire any building or other insur-
able property to any amount (including the amount
of any insurance already on foot) not exceeding
three equal fourth parts of the full value of such
building or property, and pay the premiums for
such insurance out of the income thereof or out of
the income of any other property subject to the
same trusts, without obtaining the consent of any
person who may be entitled wholly or partly to
such income.
(2.) This section does not apply to any building
or property which a trustee is bound forthwith to
convey absolutely to any beneficiary upon being
requested to do so.
(3.) This section applies to trusts created either
before or after the commencement of this Act, but
nothing in this section shall authorise any trustee
to do anything which he is in express terms for-
bidden to do, or to omit to do anything which he is
in express terms directed to do, by the instrument
creating the trust.
Subsections 1 and 2 replace section 7 of tlie Trustee
Act, 1888, wliicli section is repealed by the present Act (see
section 51, and Schedule, infra). Subsection 3 is taken from
section 12 of the same Act.
Subsection 1. — The enactment is permissive only. Apart
from the statute, trustees are not bound to insure, or liable for
not so doing. Bailey v. Oould, 4 T. & 0. 221 ; Bdbson v. Land,
8 Hare 216 ; Fry v. Fry, 27 Beav. 144, at p. 146 ; Lewin on
Trusts, 10th edit., p. 684.
" A Trustee." — See note to subsection 3, infra.
" Including the Amount of any Insurance already on foot." —
It is conceived that these words apply to any insurance, by
■whomsoever effected, to the benefit of which the trust estate is
entitled, e.g. a trustee of a reversion expectant on the deter-
mination of a lease under which the lessee is bound to insure
for the benefit of the reversioner in three-fourths of the value, is
not entitled under this section to insure again. So a trustee
mortgagee, where the mortgagor has duly insured pursuant to
covenant, must take into account the amount so insured.
"Pay the Premiums . . . out of the Income." — The section
does not alter the law as between tenant for life and remainder-
man as to the ultimate incidence of the payments, re Baring
Trustee Act, 1893. 79
(1893) 1 Ch. 61. The tenant for life of leaseholds, the lease Sect. 18.
of which contains a covenant to insure, is bound to insure ■
during the continuance of his interest, re Gjers (1899) 2 Ch.
54 ; re Betty (1899) 1 Ch. 821 ; but not if there be no covenant
to insure, re Betty, at p. 829. If there be no such obligation
to insure the trust property, it would seem that a tenant for
life, out of whose income the trustee acting under this section
has paid insurance premiums, has a right to be recouped out of
capital.
"Without obtaining the Consent." — Apart from the Act,
such consent would be necessary, unless there were a covenant
to insure, which the tenant for life was bound to perform. See
the previous note.
Subsection 2. " Which a Trustee is bound forthwith to con-
vey." — The language of this subsection raises a difficult question.
Is the subsection intended only to exclude a bare trustee, or is
it intended to exclude any trustee whose cestuis que trust are
all swi juris. It seems probable, that the above words are
taken from Mr. Dart's definition of a bare trustee, which was
discussed in detail by Jessel, M.R., in Morgan v. Swansea Urban
Sanitary Authority, 9 CD. 582, bnt the final clause of that
definition, viz. " and has been requested by them so to convey
it," which was considered by Jessel, M.R., as essential to its
meaning, is not reproduced in the present subsection. The
subsection, literally construed, would appear to lead to the
result that where all the cestuis que trust are sui juris, a trustee,
even if he has active duties to perform, and holds for persons
in succession, is given no power to insure by this section, but
it is difficult to believe that such was the intention.
Subsection S.^The reference to " instrument creating the
trust " appears to show that the section only applies to trusts
created by an instrument. It is open to question whether an
administrator is a trustee within the section.
For definitions of "trustee," "convey," "instrument,"
and " transfer," see section 50, infra.
Section 19. — (1.) A trustee of any leaseholds Sect. 19.
for lives or years which are renewable from time to
time, either under any covenant or contract, or by ^°^tee°of
custom or usual practice, may, if he thinks fit, and renewable
shall, if thereto required by any person having any jg^g^^^nd*"
beneficial interest, present or future, or contingent, raise money
in the leaseholds, use his best endeavours to obtain purpose.
from time to time a renewed lease of the same
hereditaments on the accustomed and reasonable
terms, and for that purpose may from time to time
make or concur in making a surrender of the lease
80 Trustee Act, 1893.
Sect. 19. for the time being subsisting, and do all sucb other
~ acts as are requisite : Provided that, where by the
terms of the settlement or will the person in posses-
sion for his life or other limited interest is entitled
to enjoy the same without any obligation to renew
or to contribute to the expense of renewal, this
section shall not apply unless the consent in writing
of that person is obtained to the renewal on the part
of the trustee.
(2.) If money is required to pay for the renewal,
the trustee effecting the renewal may pay the same
out of any money then in his hands in trust for the
persons beneficially interested in the lands to be
comprised in the renewed lease, and if he has not in
his hands sufficient money for the purpose, he may
raise the money required by mortgage of the here-
ditaments to be comprised in the renewed lease, or of
any other hereditaments for the time being subject
to the uses or trusts to which those hereditaments
are subject, and no person advancing money upon a
mortgage purporting to be under this power shall
be bound to see that the money is wanted, or that
no more is raised than is wanted for the purpose.
(3.) This section applies to trusts created either
before or after the commencement of this Act, but
nothing in this section shall authorise any trustee
to do anything which he is in express terms forbidden
to do, or to omit to do anything which he is in
express terms directed to do, by the instrument
creating the trust.
This section replaces sections 10 and 11 of tte Trustee Act,
1888, which are repealed hy the present Act. See section 51,
and Schedule, infra.
Provisions similar to the above were originally contained
in Lord Cranworth's Act, 23 & 24 Vict. c. 145, sections 8, 9.
These sections were repealed by the Settled Land Act, 1882,
but not re-enacted until 1888.
" A Trustee." — See notes to subsection 3, infra.
Subsection 2. — The section does not alter the law as to how
the expenses of renewal are to be borne as between tenant for
life and remainderman, re Baring, Jeune v. Baring (1898)
1 Ch. 61. In the absence of express direction in the settlement
Trustee Act, 1893. 81
as to how fines axe to be borne, the principle is as follows : — Sect. 19.
the portion of the fine to be paid by the remainderman is to be ■
ascertained by reference to the actual enjoyment of the tenant
for life, and must be paid with compound interest up to the
death of the tenant for life, and simple interest from that time
until payment, Bradford v. Brownjohn, 3 Ch. 711 ; Isaac v.
Wall, 6 CD. 706. In re Baring, supra, it was suggested that
the amounts should be ascertained before the tenant for life's
death by actuarial valuation, but it seems this cannot be done
without either the consent of all parties or order of the Court.
See re Baring, supra, at p. 70.
The cases where the settlement provides for payment of
fines may be divided under three heads (see Bradford v. Brown-
john, supra, per Selwyn, L.J.), viz. —
1. The expense to be raised by sale or mortgage of the
estate, in this case the tenant for life loses the rents of the
part sold and keeps down the interest in case of mortgage.
2. The same provision is made by means of a sale or
mortgage of another estate, in which case the tenant for life of
that estate is in a similar position. Ainslie v. Sarcourt, 28
Beav. 313, is an instance of both these classes.
3. The expenses of renewal are directed to be paid out of
the rents and profits, in which case the whole burthen is thrown
upon the tenant for life, as in Solley v. Wood, 29 Beav. 482.
There is a further class of cases in which the settlement
provides for payment " out of rents and pi'ofits or by mortgage."
In these cases the Court throws the onus on the successive
tenants in proportion to their interests, see Jones v. Jones,
5 Hare 440. See further as to this subject, Lewin on Trusts,
10th edit., Ch. 15.
Subsection 3. — The reference to "instrument creating the
trust " appears to show that the section only applies to trusts
created by an instrument. It is open to question whether an
administrator is a trustee within the section.
For definitions of " trust," " trustee," " instrument," and
" mortgage," see section 50, infra.
Section 20. — (1.) The receipt in writing of any Sect. 20.
trustee for any money, securities, or other personal
property or effects payable, transferable, or deliver- trZileto
able to him under any trust or power shall be a si^e reoeipta.
sufficient discharge for the same, and shall effectually
exonerate the person paying, transferring, or deliver-
ing the same from seeing to the application or being
answerable for any loss or misapplication thereof.
(2.) This section applies to trusts created either
before or after the commencement of this Act.
G
82 Trustee Act, 1893.
Sect. 20. This sectionreplaces, with merely verbal alterations, section 3 6
— of the Conveyancing and Law of Property Act, 1881, which
section is repealed by the present Act. See section 51, and
Schedule, infra.
Previous efforts had been made to modify by statute the
strict rules of the Court of Chancery on the subject of the
responsibility of persons paying money to trustees.
By 7 & 8 Vict. c. 76, section 10, it was enacted that the
bond fide payment to and receipt of any person to whom any
money should be payable on any express or implied trust, or for
any limited purpose, should effectually discharge the person
paying the same from seeing to the application thereof, unless
the contrary be expressly declared by the instrument creating
the trust or security. The enactment took effect on the 1st
January, 1845, and did not apply to instruments executed before
that date. It was repealed in the same year by 8 & 9 Vict.
c. 106, section 1, as from the 1st October, 1845.
By Lord St. Leonards's Act (22 & 23 Vict. c. 35), section
23, it was enacted that the bond fide payment to, and receipt of,
any person to whom any purchase or mortgage money should
be payable upon any express or implied trust, should effectually
discharge the person paying the same from seeing to the
application thereof, unless the contrary be expressly declared
in the instrument creating the trust or security. This section
has not been repealed. It seems the better opinion is, that
this clause applies only to trusts created since the Act, Lewin,
10th edit., p. 518.
By Lord Cranwortb's Act (23 & 24 Vict. c. 145), section 29,
a more extensive power was given to trustees of instruments
executed since the Act. The enactment extended to any money,
not merely purchase or mortgage money, and there was no
provision as to contrary intention. This enactment was repealed
by the Conveyancing and Law of Property Act, 1881.
♦' The Receipt in Writing." — As to payment to a solicitor or
banker, see section 17, ante, p. 75.
"Under a Trust or Power."— The section only applies if
the property is receivable by the trustee under a trust or
power. A person not validly appointed trustee cannot give a
good discharge for trust money paid to him. A person having
money to pay to a trust is not bound to accept the trustee's
receipt under this section. If there be circumstances which
make it reasonable for him to decline to be satisfied with the
statutory receipt, he will not be responsible for the costs of
any consequent legal proceedings. Cf. Hockey v. Western (1898)
ICh. 350.
Payment by a debtor, for the express purpose of discharg-
ing his debt to an estate, to his own agent who happens to be
(but not to the debtor's knowledge) one of the trustees, is not
sufficient to discharge the debtor. Miller v. Bouqlas, 66 L.J.
Ch. 91.
Trustee Act, 1893. 83
For the law apart from statute, see Lewin, lOth edit., 519, Sect. 20,
et seq.
For definitions of "trust," "trustee," "property," and
"securities," see section 50, infra.
Section 21. — (1.) An executor or administrator Sect. 21.
may pay or allow any debt or claim on any evidence
that lie thinks sufficient. _ ^ ex7onJ°lB.n
(2.) An executor or administrator, or two or trustees to
more trustees, acting together, or a sole acting eto"^°"° '
trustee where by the instrument, if any, creating
the trust a sole trustee is authorised to execute
the trusts and powers thereof, may, if and as he
or they may think fit, accept any composition or
any security, real or personal, for any debt or for
any property, real or personal, claimed, and may
allow any time for payment for any debt, and may
compromise, compound, abandon, submit to arbitra-
tion, or otherwise settle any debt, account, claim, or
thing whatever relating to the testator's or intestate's
estate or to the trust, and for any of those purposes
may enter into, give, execute, and do such agree-
ments, instruments of composition or arrangement,
releases, and other things as to him or them seem
expedient, without being responsible for any loss
occasioned by any act or thing so done by him or
them in good faith.
(3.) This section applies only if and as far as a
contrary intention is not expressed in the instrument,
if any, creating the trust, and shall have effect
subject to the terms of that instrument, and to the
provisions therein contained.
(4.) This section applies to executorships, ad-
ministratorships and trusts constituted or created
either before or after the commencement of this Act.
This section replaces section 37 of the Conveyancing and
Law of Property Act, 1881 (repealed by the present Act, see
section 51, and Schedule, infra), which itself took the place of
section 30 of Lord Cranworth's Act (23 & 24 Vict. c. 145).
The last-mentioned section only applied to executors, and only
to wills signed or conjBrmed by codicil after the 28th August,
1860.
84 Trustee Act, 1893.
Sect. 21. "An Executor . . . may pay or allow any Debt or Claim." —
Co-executors, however numerous, are regarded in law as an
individual person, and by consequence the acts of any one of
them, in respect of the administration of the effects, are deemed
to be the acts of all ; for they have all a joint and entire
authority over the whole property. WilHams on Executors,
9th edit., 816 ; re Macdonald (1897) 2 Ch. 181 ; Astbury v.
Asthury (1898) 2 Ch. 111.
It is conceived that the effect of subsection 1 is that where
a payment by an executor or administrator is attacked by the
legatees, the question to be decided is, not was the evidence on
which he acted sufficient to justify him, but did he, in making
the payment, in good faith think that a debt or claim binding
on the estate was proved. Jones v. Owens, 47 L.T. 61, at p. 64.
The executor or administrator must in good faith think a debt
or claim is established. The subsection does not authorise him
to make payments of claims which he knows are neither debts
nor enforceable claims. An executor or administrator may pay
a debt, if satisfied with the evidence of its existence, although
the creditor's remedy be barred by the Statutes of Limitation,
Midgley v. Midgley (1893) 3 Ch. 282, unless it has been judicially
declared to be barred ib, or unless an administration action be
pending ib, and, it would seem, notwithstanding the dissent of
a co-executor. Smith v. Everett, 27 Beav. 446 ; but see as to this,
Midgley v. Midgley, supra; Asthury v. Astbury (1898) 2 Ch. 111.
This is, however, the solitary exception to the rule that he is
not entitled to pay claims which are not binding on the estate, d
Williams on Executors, 9th edit., 1698 ; he cannot pay claims f
which cannot be enforced by reason of the Statute of Frauds, |
re Bownson, 29 CD. 358, at p. 368.
" Or Administrator." — These words are new. It was thought
that on the authority of re Clay and Tetley, 16 CD. 3, the
section in the Conveyancing and Law of Property Act, 1881,
did not apply to an administrator, even with the will annexed.
"An Executor or Administrator may . . . accept any
Composition, etc." — As to one of several executors acting
alone, see supra. Apart from statute an executor or adminis-
trator who accepted composition or security, allowed time,
compounded, abandoned, submitted to arbitration, or otherwise
compromised, did so at his own peril. For if attacked in respect
of such act the onus was on him to prove benefit to the estate.
See Williams on Executors, 1696, 1697 ; Blue v. Marshall, 3 P.
Wms. 381 ; Forshaw v. Higginson, 8 D.M. & G. 827.
"Two or more Trustees acting together."— This does not
mean that less than the whole body of trustees can exercise
the powers given.
"Sole Trustee authorised, etc."— Under section 22, infra,
p. 85, a sole surviving trustee may, unless forbidden by the
instrument creating the power or trust, exercise or perform a
Trustee Act, 1893. ' 85
power or trust originally given to or vested in two or more Sect. 21.
trustees jointly.
"Compromise, compound, abandon." — Tke section of Lord
Cranworth's Act was held to extend to claims of every kind,
including the claim of a person to be one of a class of residuary
legatees, re Warren, 1884 W.N. 181. The section does not '
empower executors to compromise questions relating to the
validity of the will or the testamentary capacity of the testator
Abdallah v. Michards, 4 Times L.R. 622, but they can com-
promise a debt due from one of themselves, re Houghton,
Hawley v. Blake (1904) 1 Ch. 622, not following dictum to the
contrary in de Cordova v. de Cordova, 4 A.O. 692, at p. 703.
For instances of compromise, see West of England Bank v.
Murch, 23 CD. 138, where, under special circumstances, the
power to compromise was held to justify a sale of a business in
consideration of shares and debentures (this case must not,
however, be taken as an authority of general application, see
the cases cited in notes to section 13, " Trust for sale or power of
sale," ante, p. 67); and re Trenchard (1902) 1 Ch. 378.
" In Good Faith."— See Jones v. Owens, 47 L.T. 61, at p. 64,
ante, p. 84; re Houghton, sujrra.
Subsection 3. — In the Conveyancing and Law of Property
Act, 1881, this subsection was in terms limited to trustees. The
words " as regards trustees " are now omitted, and having
regard to the definition of "trust" in section 50, it seems that
this subsection applies to executors or administrators.
Subsection 4. — The language of the repealed section is
retained, although by section 50 of this Act the expression
" trust " appears to be sufficient to include executorships and
admin istratorships.
For definitions of "trust," "trustee," "instrument," and
"property," see section 50, infra.
Section 22. — (1). Where a power or trust is Sect. 22.
given to or vested in two or more trustees jointly,
then, unless the contrary is expressed in the instru- tw™rmore
ment, if any, creating the power or trust, the same trustees.
may be exercised or performed by the survivor or
survivors of them for the time being.
(2.) This section applies only to trusts consti-
tuted after or created by instruments coming into
operation after the thirty-first day of December one
thousand eight hundred and eighty-one.
This section is a re-enactment, with verbal alterations, of
section 38 of the Conveyancing and Law of Property Act, 1881,
which section is repealed by this Act. See section 51, and
86 Teustee Act, 1893.
Sect. 22 Schedule, infra. The omission of express reference to executors ;
and executorships in the present section is, of course, due to the /
extended meaning given to the term "trustee" by section 50 »
of the present Act.
It is to be observed that the section relates only to " sur-
viving" trustees, and not generally to "remaining" or "con-
tinuing " trustees. It would thus appear not to apply to the
following cases, viz. : —
(a) Renunciation by an executor. This is dealt with by
section 77 of the Probate Act, 1857 (20 & 21 Vict. c. 77), which
is as follows : " Where any person after the commencement of
this Act renounces Probate of Will of which he is appointed
executor, or one of the executors, the rights of such person in
respect of the executorship shall wholly cease, and the repre-
sentation to the testator, and the administration of his effects,
shall and may, without any further renunciation, go, devolve,
and be committed in like manner as if such person had not
been appointed executor." As to the case of an executor dying
without having taken probate, or not appearing to a citation,
see section 16 of the Probate Act, 1858 (21 & 22 Vict. c. 95).
(6) Renunciation of a power by one who has accepted or
acted under it. This is dealt with by section 52 of the Con-
veyancing and Law of Property Act, 1881, which is as follows :
(1) "A person to whom any power, whether coupled with
an interest or not, is given, may by deed release, or contract
not to exercise, the power. (2) This section applies to powers
created by instruments coming into operation either before or
after the commencement of this Act."
(c) Disclaimer of a power before accepting or acting under
it. This case is dealt with by section 6 of the Conveyancing
Act, 1882, which is as follows : " (1) A person to whom any
power, whether coupled with an interest or not, is given, may
by deed disclaim the power ; and, after disclaimer, shall not be
capable of exercising or joining in the exercise of the power.
(2) On such a disclaimer, the power may be exercised by the
other or others, or the survivors or survivor of the others, of
the persons to whom the power is given, unless the contrary is
expressed in the instrument creating the power. (3) This
section applies to powers created by instruments coming into
operation either before or after the commencement of this Act."
{d) Disclaimer, not merely of a power, but of the whole of
the trusts and trust estate ; retirement of a trustee under
section 11 of the present Act, or otherwise ; replacement of a
trustee under section 10 or 25 of the present Act ; removal of
a trustee by the Court, or under section 10 of the present Act,
or otherwise ; in all of which cases the question whether powers
can be exercised by the other or others of the trustees must, it
is submitted, be decided in accordance with the general principles
referred to below.
The general principles, independently of statutory enact-
ment, applicable to the survivorship of trusts and powers, will be
found in Chance on Powers, section 653 ; Sugden on Powers,
Trustee Act, 1893. 87
8th edit., p. 128 ; Vaisey on Settlements, p. 3-17 ; Lewin on Sect. 22.
Trasts, 10th edit., p. 278 ; :Farwell on Powers, 2nd edit., p. 452.
They may be summarised as follows : —
(1) As co-trustees have an authority coupled with an estate
or interest, their office is impressed with the quality of survivor-
ship. Thus, if land he vested in two trustees upon trust to
sell, and one of them die, the other may sell, and this is so
even if the land is not vested in them, for " the trust or power
imperative is the estate." Cf. Lewin, pp. 278, 726. In like
manner the offices of executors and of administrators survive.
(2) The rule of survivorship applies not only to trusts, or
powers imperative, but also to such discretionary powers as
are annexed to the office of trustee, and are meant to form an
integral part of it, cf. Lewin, p. 728 ; re Smith, EasticJc v. Smith
(1904) 1 Ch. 139, although such discretionary powers might
not be exerciseable by the representatives of a last trustee
under section 30 of the Conveyancing and Law of Property
Act, 1881, or otherwise. Cf. Bobson v. Flight, 4 De G.J. & S.
608 ; Vaisey, p. 352.
(3) If the power arises by implication, it attaches to the
office, and may be exercised by the holder of the office for the
time being. Cf. Farwell, p. 461 ; Sugden, pp. 115-128.
(4) A bare power given to two or more by name cannot be
executed by the survivors or survivor. Cf. Sugden, pp. 126-
128 ; Farwell, p. 454.
(5) Where a power is given nominatini, although in the
character of executors, e.g. " to my executors A and B," it is in
each case a question of intention whether the power is given to
the person or annexed to the office. Cf. Sugden, p. 128;
Farwell, p. 457 ; and see re Smith, Bastick v. Smith (1904) 1
Ch. 139, infra, p. 88.
As to the effect of the present section in modifying the law
as it applies to powers given to trustees of trusts constituted
after or created by instruments coming into operation after the
81st of December, 1881, the chief question arises on the 4th
rule above stated.
It has been suggested (Yaisey, p. 347) that the effect of
section 38 of the Conveyancing and Law of Property Act, 1881,
was to abolish the doctrine which raised a presumption against
the survivorship of powers, and that even in the case of a bare
power given to two or more by name, the power survives by
virtue of that section. It is sabmitted, however, that as
section 38 and the present section apply only to "trustees,"
and not to "persons" generally, the above statement is too
wide, and that survivorship only occurs where the donees of
the power are in some sense trustees ; and see note to sub-
section 2, infra.
It is further submitted that the fact that the power is of a
fiduciary character does not of itself make the donee a trustee
within the meaning of the section, although a power to appoint
new trustees, as being in its nature fiduciary, has been held by
the Court of Appeal to be vested in a lunatic " in the character
88 Trustee Act, 1893.
Sect. 22. of trnstee " within the meaning of section 128 of the Lunacy
Act, 1890. In re Shortridge (1895) 1 Ch. 278. It can scarcely
be contended that the effect of the section is that a power to
appoint amongst children (a fiduciary power), given to husband
and wife, can be exercised by the survivor without express
words to that effect in the instrument creating the power.
It is further submitted that it is not sufficient that the
donees be in fact trustees if the power is not given to them as
such ; e.g. in the above case, though the husband and wife were
the trustees or amongst the trustees of the instrument, if the
power were given to them nominatim, it is submitted that the
power would not survive (see, however, Parwell, p. 455). The
true test appears to be whether or not the power is given to
the donees in their capacity of trustees or executors. Cf . Craw-
ford V. Forshcm (1891) 2 Ch. 261 ; In re Smith, Eastich v. Smith''
(1904) 1 Ch. 139.
The judgment of Parwell, J., in the case last mentioned,
summarises the law as follows : — " The result of the authorities
and of sections 22 and 37 of the Trustee Act is, in my opinion,
this : Every power given to trustees which enables them to
deal with or affect the trust property is prima facie given them
ex officio as an incident of their office, and passes with the office
to the holders or holder thereof for the time being ; whether a
power is so given ex officio or not depends in each case on the
construction of the document giving it, but the mere fact that
the power is one requiring the exercise of a very wide personal
discretion is not enough to exclude the prima fade presumption,
and little regard is now paid to such minute differences as those
between ' my trustees,' ' my trustees A. and B.,' and ' A. and B.,
my trustees.' The testator's reliance on the individuals to the
exclusion of the holders of the office for the time being must be
expressed in clear and apt language."
Subsection 2. — It should be noticed that the date upon
which it depends whether in a particular case the section
applies or not, is not that at which the powers or trusts in
question are given or vested, but that at which the trusts of
which the donee is trustee were constituted. Thus, if by an
instrument executed after 1881 a power were given to the
executors of the will of a testator, who had died before that
year, the section would not apply. This is made clear by
reference to the language of the repealed section 38 of the
Conveyancing and Law of Property Act, 1881 : " This section
applies only to executorships and trusts constituted after, etc."
The fact that the scope of the section is restricted by reference
to the date of the constitution of the original trusteeship or
executorship, though not likely to be of frequent practical
importance, is of interest as supporting the view stated above
that the section does not apply to powers vested in persons
who are not trustees of some constituted trust.
For definitions of " trust," " trustee," and " instrument,"
see section 50, infra.
Trustee Act, 1893. 89
Section 23. — A trustee acting or paying money Sect. 23.
in good faith under or in pursuance of any power of
attorney shall not be liable for any such act or o/truateeaTn
payment by reason of the fact that at the time of the leapeot of
payment or act the person who gave the power of powewof
attorney was dead or had done some act to avoid the atto™ey.
power, if this fact was not known to the trustee at
the time of his so acting or paying.
Provided that nothing in this section shall aflfect
the right of any person entitled to the money against
the person to whom the payment is made, and that
the person so entitled shall have the same remedy
against the person to whom the payment is made as
he would have had against the trustee.
This section is in substitution for section 26 of Lord St.
Leonards's Act (22 & 23 Vict. c. 35), which section is repealed by
this Act. See section 51, and Schedule, infra. The repealed
section was as follows : " No trustee, executor, or administrator
making any payment or doing any act bond fide under or in pur-
suance of any power of attorney shall be liable for the moneys so
paid or the act so done, by reason that the person who gave the
power of attorney was dead at the time of such payment or act,
or had done some act to avoid the power, provided that the
fact of the death or of the doing of such act as last aforesaid,
at the time of such payment or act bond fide done as aforesaid
by such trustee, executor, or administrator, was not known to
him : Provided always, that nothing herein contained shall in
any manner affect or prejudice the right of any person entitled
to the money against the person to whom such payment shall
have been made, but that such person so entitled shall have
the same remedy against such person to whom such payment
shall be made as he would have had against the trustee,
executor, or administrator if the money had not been paid away
under such power of attorney."
Section 47 of the Conveyancing and Law of Property Act,
1881, which is not repealed, enacts as follows : " (1) Any person
making or doing any payment or act, in good faith, in pursaance
of a power of attorney, shall not be liable in respect of the
payment or act by reason that before the payment or act the
donor of the power had died or become lunatic, of unsound
mind, or bankrupt, or had revoked the power, if the fact of
death, lunacy, unsoundness of mind, bankruptcy, or revocation
was not at the time of the payment or act known to the person
making or doing the same. (2) Bat this section shall not
affect any right against the payee of any person interested in
any money so paid ; and that person shall have the like remedy
against the payee as he would have had against the payer if
90 Trustee Act, 1893.
Sect. 23. tie payment had not been made by him. (3) This section
applies only to payments and acts made and done after the
commencement of this Act."
Section 47 of the Conveyancing and Law of Property Act
appears to be intended to extend to all persons, whether trustees
or not, the protection given by the earlier Act to trustees and
executors, and in some respects, noted below, to make that pro-
tection more effective. It is not altogether clear what is the
reason for the enactment of the present section, nor, if it is
merely intended to assert that trustees are entitled to the same
privilege as other persons, why the somewhat narrower language
of the earlier section has been adopted in preference to that of
the later Act.
"Acting or paying Money . . . under or in Pursuance of
any Power of Attorney." — This phrase, although strictly applic-
able only to cases in which the trustee is the donee of the
power, cannot here be so restricted without depriving the section
of its principal value, but must be taken to apply to cases in
which the trustee acts on the faith of powers given to other
persons, e.g. pays purchase-money to a vendor who acts as
donee of a power of attorney. That this is intended is apparent
from the terms of the proviso to the section. The words
" payment by attorney " in the marginal note to section 47 of
the Conveyancing and Law of Property Act, 1881, should
presumably be " payment by or to attorney."
"Power of Attorney." — A power of attorney is a formal
instrument executed by one empowering another to act in his
stead. It must for some purposes, but not for all, be by deed.
See Jarman's Conveyancing, 3rd edit., vol. 8.
"Act to avoid the Power." — The modes in which a power of
attorney may be determined apart from, statutory provisions
are dealt with by Mr. Jarman (Conveyancing, 3rd edit., vol. 8).
They are (1) mutual agreement; (2) revocation, either (a)
express or (6) implied, e.g. cesser of power of principal over
subject-matter, lunacy of principal, bankruptcy of principal,
death of principal ; (3) renunciation of attorney, either (a)
express or (6) implied, e.g. bankruptcy of attorney; (4)
exhaustion of power, e.g. where given for a particular purpose
only ; (5) expiration of time limited, either expressly or impliedly,
for the exercise of the power.
" Notice of Revocation." — " On the whole, the rule laid down
by Mr. Justice Story (Agency, 470) seems trustworthy, viz.,
that as to the attorney the revocation generally takes effect
from the time when revocation by act of the principal is made
known to him ; and as to third persons when it is made known
to them and not before," Jarman's Conveyancing, 3rd edit.,
vol. 8, p. 35, and this rule appears to apply to revocation by
death of the principal, his bankruptcy, and insanity.
Effect of the Section. — The language of the section is not
so wide as that of section 47 of the Conveyancing and Law of
Trustee Act, 1893. 91
Property Act, 1881, as it omits express reference to tlie bank- Sect. 23.
ruptcy, Innaey, and unsoundness of mind of the principal.
Probably bankruptcy comes within the phrase, "some act to
avoid the power," but it is difficult to suppose that lunacy and
unsoundness of mind can do so. The question does not,
however, appear to be one of substance if (as is submitted is
the case) section 47 of the Conveyancing and Law of Property
Act, 1881, applies to trustees, or if the law apart from statute
is as stated above.
It would seem clear that neither this section nor section 47
of the Conveyancing and Law of Property Act, 1881, gives any
protection in the case of determination of the power in any of
the above modes (3), (4), or (5), and that the trustee is there-
fore bound to satisfy himself that the power has not been so
determined.
Irrevocable Powers. — Apart from statute, powers given
for valuable consideration cannot be expressly revoked, but if
not for valuable consideration, though expressed to be irrevo-
cable, may yet be revoked at any time. Cf. Jarman's Con-
vpyancing, 3rd edit., vol. 8, p. 35 ; and Story on Agency, 9th
edit., pp. 579, et seq.
Section 8 of the Conveyancing Act, 1882, contains express
provision making irrevocable powers of attorney given for
valuable consideration and expressed to be irrevocable ; and
section 9 of the same Act contains similar provisions as to
powers of attorney, whether given for valuable consideration
or not, expressed to be irrevocable for a fixed time. These
sections apply only in favour of a purchaser. They do not
depend on the absence of notice.
Tor definition of "trustee," see section 50, infra.
Section 24. — A trustee shall, without prejudice Sect. 24.
to the provisions of the instrument, if any, creating ]
the trust, be chargeable only for money and securities ^^J^^^ty of
actually received by him notwithstanding his signing trustees.
any receipt for the sake of conformity, and shall be
answerable and accountable only for his own acts,
receipts, neglects, or defaults, anrl not for those of
any other trustee, nor for any banker, broker, or
other person with whom any trust moneys, or
securities may be deposited, nor for the insuflSciency
or deficiency of any securities, nor for any other
loss, unless the same happens through his own
wilful default ; and may reimburse himself, or pay
or discharge out of the trust premises, all expenses
incurred in or about the execution of his trusts or
powers.
92 Teustee Act, 1893.
Sect. 24. This section replaces section 31 of Lord St. Leonards's Act
(22 & 23 Vict. c. 35), which section is repealed by this Act. See
section 51, and Schedule, infra. The two sections are virtually
identical in expression, except that the repealed section com-
menceSj " Every deed, vrill, or other instrument creating a trust,
either expressly or by implication, shall, without prejudice to
the clauses actually contained therein, be deemed to contain a
clause in the words, or to the effect following." The repealed
section therefore only applied to trustees under an instrument,
whilst the present section applies to all trustees as defined by
section 50, including executors and administrators.
" Without Prejudice to the Provisions of the Instrument." —
The instrument creating the trust may extend or restrict the
protection given by this section as between the trustees and
beneficiaries. Pass v. Bundas, 43 L.T. N.S. 665 ; 29 W.R. 332.
As against creditors, however, a testator, it is submitted, cannot
extend the protection, for creditors are not, like legatees, bound
by the terms of the will. Boyle v. Blake, 2 Sch. & Lef. 239,
245.
" Shall ... be chargeable only for." — Before the passing
of Lord St. Leonards's Act, it was usual to insert in every will
or settlement provisions similar to those of the present section,
but such a clause was not strictly necessary, for equity infuses
such a proviso into every trust deed. Dcmson v. Clarke,
18 Ves. 247, 254; and cf. remarks of Lord Selborne, In re
Brier, 26 CD. at p. 243.
" Notwithstanding his signing any Receipt for the Sake of
Conformity." — As it is necessary for all co-trustees to join in
giving a receipt, it was very early decided that in equity,
though not in law, it was competent to a trustee to show that
the money acknowledged to have been received by all was in
fact received by one. Briee v. Stokes, 11 Ves. 319, 324. Bat as
to executors, the rule was not identical, for since one executor
could give a valid receipt, the joining of his co-executor in
giving the receipt was considered to be a voluntary act or
interference, for the consequences of which he must be held
responsible. Thus it would appear that if two executors joined
in giving a receipt to a debtor, both would have been liable,
though only one received the money, for the debtor requiring
the discharge of the executor who has not received the money
amounts to saying, " I make this payment to you both, and not
to him only who actually receives the money." Boyle v. Blake,
2 Sch. & Lef. 231, 242. The question may arise whether the
effect of the present section (which, by virtue of the definition of
" trustee " in section 50, applies to executors and administrators,
as well as to trustees in the strict sense) is to alter the rule as
to the liability of executors in such a case. It is submitted
that the section has no such effect, and that an executor who
has joined in giving a receipt must now, as formerly, in order
to escape liability, prove special circumstances to show that his
Trustee Act, 1893. 93
joining in giving the receipt was a mere formality, and raised Sect. 24.
no presumption that the money was, though not received by
him, yet under his control. For a full discussion of the earlier
law on the subject, see Lewin on Trusts, p. 287.
" Accountable only for his own Acts . . . Wilful Default." —
These words, although very wide and general, in fact do little
if anything, to protect trustees. The comments of Mr. David-
son (Precedents, 2nd edit., voL iii. pp. 183, 184) |on the clause
formerly usually inserted in settlements, and the form of which
is virtually identical with the present clause, may be usefully
referred to here : " It is considered, and probably with justice,
that trustees attach a certain degree of importance to this
clause, and it has been suggested that this arises from its being
satisfactory for them to see what they are told is the rule of
equity made an express part of the contract, instead of being
left to an implication of which they can know nothing. It may
be thought doubtful, however, whether the real inducement to
the insertion of the clause in question was not in general a
belief very naturally inspired by its language, that it carried
with it a degree of protective force, and tempered the rigorous
doctrines applicable to the administration of trusts with a
certain latitude and indulgence. If in acting on this natural
though unfounded impression, trustees were induced to deviate
from the strict line of duty to which they would otherwise have
considered it incumbent to adhere, it must be acknowledged
that the real operation of the clause was anything but
protective."
"Not for those of any other Trustee." — These words, of
course, give no protection to a trustee who, by any neglect or
default of his own, places it in the power of his co-trustee to
cause a loss to the trust estate. Thus in Brice v. Stohes,
11 Ves. 319, 327, a trustee who had joined in giving a receipt
was made liable, not for so joining, but because he sutssequently
permitted his co-trustee to keep, and deal with, the money.
See also Walker v. Sytnonds, 3 Sw. 1, and other cases referred
to in Lewin on Trusts, 10th edit., p. 286. To authorise leaving
moneys under the control of a co-trustee, a special clause is
necessary. Wilhins v. Sogg, 10 W.R. 47 ; Pass v. Bundas,
29 W.E. 832.
" Nor for any Banker, etc." — Whilst trustees cannot delegate
the execution of the trust, they may avail themselves of the
services of others, wherever such employment is according to
the usual course of business. Lord Watson, in Learoyd v.
Whtteley, 12 App. Cas. at p. 734; Lord Selborne, in Speight v.
Gaunt, 9 App. Cas. at p. 5. But trustees will not be protected
in re.spect of defaults of agents employed otherwise than in the
usual course of business. Thus if trust funds are left in the
hands of solicitors awaiting investment, the trustees will be
responsible for any consequent loss, for they are not entitled to
treat solicitors as bankers ; see Wyman v. Pater son (1900)
94 Trustee Act, 1893.
Sect. 24. A.C. 271, ante, p 77., and in sucli a case, relief under section 3
of the Judicial Trustees Act, 1896, will not be given, Wynne v.
Tempest (1897) W.IST. 43. The judgments in Wyman v. Paterson
demonstrate the liahility of trustees in such circumstances
even when the instrument creating the trust contains special
indemnity provisions going beyond the provisions of the present
section. Again, a trustee is bound to exercise proper care in
the selection of the agent. See Mobinson v. Harkin (1896)
2 Ch. 416, a case in which trustees were held liable for not
having exercised proper care in the selection of a broker, and
having improperly left the trust fund in his hands.
As to appointing a solicitor or banker to receive payment of
moneys receivable by the trustee, see section 17, supra.
As to the duties of trustees in investing trust funds, and the
employment of valuers therein, see sections 1 and 8, supra.
" Insuflaclency or Deficiency of any Securities." — The section
will not protect the trustee if the investment, when made, was
not both authorised and proper. See note, " Real securities,"
ante, p. 20 ; and section 9, ante, p. 46.
As to retention of unauthorised securities, see notes to
section 4 of the Amendment Act of 1894, post, p. 176. See
Judicial Trustees Act, 1896, section 3 (p. 184, infra), for power
for the Court to relieve a trustee from liability for breaches
of trust in cases in which the trustee has acted " honestly and
reasonably."
Ab to the liability of retiring trustees, see Head v. Qould
(1898) 2 Ch. 250.
" And may reimburse himself." — This, like the earlier part
of this section, is merely an expression of what has long been
recognised as the rule of equity. " It is in the nature of the
office of a trustee, whether expressed in the instrument or not,
that the trust property shall reimburse him all the charges and
expenses incurred in the execution of the trust." Lord Eldon,
in Worrall v. Harford, 8 Ves. at p. 8 ; and see In re Rayhould,
Bayhould v. Turner (1900) 1 Ch. 199 ; Ecclesiastical Com-
missioners V. Finney (1900) 2 Oh. 736 ; In re Frith, Newto-n, v.
Bolfe (1902) 1 Ch. 342 ; Hardoon v. Belilios (1901) A.C. 118 ;
Wise V. Perpetual Trustee Co. (1903) A.C. 139. The expenses
must of course be properly incurred. JJe Beddoe, Downes v.
Cotiam (1893) 1 Ch, 547, a case in which a trustee had
unreasonably defended an action ; In re Hodghinson, Hodg-
hinson v. Hodghinson (1895) 2 Ch. 190, a case in which the
judge, on the hearing of a summons, declined to make an
order as to costs. (But costs incurred through the mistaken
but not unreasonable conduct of a trustee will be allowed him.
In re Jones, Christmas v. Jones (1897) 2 Ch. 190.) Mow v.
Winterton (1902) W.N. 230, a case in which the payment
of a voluntary school rate was allowed as part of a trustee's
costs, charges, and expenses. Generally as to what charges
aiid expenses may be properly charged against the trust fund,
see Lewin, 10th edit., p. 750.
TjausTEE Act, 1893. 95
Expenses incurred in the execution of the trust will be Sect. 24.
borne by capital or income in proportion to the benefit con- —
ferred on each. Carter v. Sebright, 26 B. 374. Thus the costs
of the appointment of new trustees under a power, including,
apparently, the costs of the donee of the power, will fall on the
corpus of the trust estate. Harvey v. Olliver (1887) W.N. 149.
As to costs of appointment by the Court, see section 38, infra.
The right of the trustee to reimbursement is precluded by
his own, but not by his co-trustee's default. In re Frith, Newton
V. Bolfe (1902) 1 Ch. 342.
In the absence of express provision to the contrary, a
trustee may not make a profit out of the trust by charging for
his services, professioaal or otherwise, re Fish (1893) 2 Ch.
418. As to what charges are authorised by the usual express
power, see Glarleson v. Rohinson (1900) 2 Ch. 722.
As to the right of trustees to indemnity by the cestuis que
trust personally where the cestuis que trust are sui juris and
absolutely entitled, see Lewin, 10th edit., p. 761 ; Hardoon v.
Belilios, supra; Wise v. Perpetual Trustee Go., supra; and
where the cestui^ que trust has induced a breach of trust, see
section 45, infra.
For definitions of "instrument," "trust," "trustee," and
" securities," see section 50, infra.
Part III.
POWERS OP THE COURT.
Appointment of New Trustees and Vesting Orders.
Section 25. — (1.) The High Court may, when- sect. 25.
ever it is expedient to appoint a new trustee or
new trustees, and it is found inexpedient, difficult, Qour^t'^ta^ *''^
or impracticable so to do without the assistance of appoint new
the Court, make an order for the appointment of a t'^^'**®^^-
new trustee or new trustees either in substitution for ^
or in addition to any existing trustee or trustees, or
although there is no existing trustee. In particular
and without prejudice to the generality of the fore-
going provision, the Court may make an order for
the appointment of a new trustee in substitution for
a trustee who is convicted of felony, or is a bankrupt.
(2.) An order under this section, and any conse-
quential vesting order or conveyance, shall not
96 TnusTEE Act, 1893.
Sect. 25. operate further or otherwise as a discharge to any
former or continuing trustee than an appointment
of new trustees under any power for that purpose
contained in any instrument would have operated.
(3.) Nothing in this section shall give power to
appoint an executor or administrator.
This section is a consolidation of sections 32 and 33 of the
Trustee Act, 1850 (13 & 14 Vict. c. 60), sections 8 and 9 of the
Trustee Extension Act, 18.52 (15 & 16 Vict. c. 65), and section
147 of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), which
sections are repealed by the present Act. See section 51, and
Schedule, infra.
It must be remembered that the present section does not
deal exhaustively or generally with the powers of the Court in
the matter of appointment of trustees. This section, and the
sections replaced by it, merely provide a simple and expeditious
method of appointing new trustees in comparatively simple
cases, substituting proceedings by petition or summons in place
of a suit or action.
The general jurisdiction of the Court to remove and replace
trustees remains unaffected by these statutory provisions. Cf.
Letterstedt v. Broers, 9 App. Cas. 371 ; Lewin on Trusts, 10th edit.,
p. 793 ; and see re Martin's Trusts, 34 CD. 618.
Further statutory power is given to the Courts by the
Judicial Trustees Act, 1896 (see p. 180, below). As to the
power to appoint new trustees without the assistance of
the Court, see section 10, supra, p. 48.
"The High Court may, etc." — In spite of the very vnde
language of section 32 of the Trustee Act, 1850, it was very
early decided that the section gave no power to remove a
trustee desirous of continuing. Be Hodson's Settlement, 9 Hare
118 ; re Blanchard, 3 De G.F. & J. 131 ; and in re Combs, 61
L.T. 45, the Court of Appeal approved this decision. This
restriction on the scope of the enactment was removed in
certain specific cases, viz. in the case of a felon by section 8
of the Trustee Extension Act, 1862, in the case of a bankrupt
by section 147 of the Bankruptcy Act, 1883. It should be
noted that section 147 of the Bankruptcy Act, 1883, expressly
authorised the removal of a bankrupt " whether voluntarily
resigning or not." It would appear that the omission of these
words in the present section does not restrict the jurisdiction,
re Betis, McLean v. Betts, 41 S.J. 209, and it has also been
held that, under the present section, the Court has power to
remove a felon trustee against his will. In re Dawson's Trusts,
(1899) W.K 134.
The present section, in consolidating the above enactments,
appears to treat the replacing of a felon or bankrupt trustee
not as exceptional but as typical instances of the exercise of
Trustee Act, 1893. 97
tke power of tLe Court to appoint new trustees in substitution Sect. 25.
for existing trustees. It is submitted, however, that the inter
pretation put upon section 32 of the Trustee Act, 1850, in
re Combs (cited above), is applicable to the present section, and
that, accordingly, the Court will not, upon petition or summons,
remove a trustee who is desirous of continuing, except in the
specified cases of felony and bankruptcy. It would thus appear
that the power of the Court as to removal of trustees under
this section is in this respect more restricted than the power
given to individuals under section 10.
"Whenever it is expedient to appoint a New Trustee." —
The section enables the appointment of new trustees of con-
structive, as well as of express, trusts (see definition of trustee
in section 50, infra), but not the appointment of an executor
or administrator (see subsection 3). That new trustees of
constructive trusts cannot be appointed under section 10, see
note, " A trustee," ante, p. 50. It has been held expedient to
appoint new trustees in the following cases : —
1. Where a trustee is an infant. Be Gartside's Estate, 1 W.R.
196 ; re Arrowsmith, 6 W.R. 642 ; re Porter's Trust, 2 Jur.
N.S. 349. In a case in which the infant was one of three
trustees under a will, the order was expressed to be without
prejudice to any application by the infant to be restored on
coming of age. Be Shelmerdine, 33 L.J. Ch. 474.
2. Where there is a sole trustee, re Dickinson, 1 Jur. N.S.
724; re Brackenhury , 10 Eq. 45 ; or an insufficient number of
trustees, re Boycott, 5 W.R. 15 ; re Qregson, 34 CD. 209.
3. Where numerous persons are trustees. Thus in the case
of Shepherd v. Churchill, 25 B. 21, upon a partition, the shares
of the parties being very minute and complicated, the Court, to
save expense, declared each of the parties trustee as to the
shares allotted to the others of them, and then appointed a new
trustee in his place and vested the property in such new trustee,
with directions to convey the allotted shares. See also Lees v.
Coulton, infra.
4. Where unborn persons, on coming into existence, will be
trustees. Where in a partition action a sale was decreed of
land in which unborn issue might take legal estates, such issue
were declared to be trustees within the meaning of the Trustee
Act, 1850, for the purpose of appointing a new trustee in their
place. Lees v. Coulton, 20 Eq. 20.
5. Where there is no personal representative of a last or
sole trustee. Davis v. Chanter, 4 Jur. N.S. 272; re Matthews,
26 B. 463 ; and see also re Davis's Trust, 12 Eq. 214 ; re Williams'
Trusts, 36 Ch. D. 231; re Filling's Trusts, 26 Ch. D. 432; re
Stocken's Settlement (1893) W.N. 203.
6. Where all trustees have died in the testator's lifetime.
Qunson v. Simpson, 5 Eq. 332 ; re Smirthwaite's Trusts, 11 Eq.
251; re Williams' Trusts, 36 Ch. D. 231.
7. Where no trustee is appointed. Dodkin v. Brunt, 6 Eq.
580; re Davis's Trusts, 12 Eq. 214; re Moore, 21 Ch. D. 778;
H
98 Trustee Act, 1893.
Sect. 25. re Gilletfs Trusts (1876) W.N. 251 ; 25 W.R. 23; and see note,
" AlthoTigi. there is no existing trustee," infra, p. 102.
8. Where a trustee has gone to reside abroad permanently.
Ee Bignold's Settlement, 7 Ch. 223 ; cf. also re Earl of Stam-
ford (1896) 1 Ch. 288 ; re Walker (1901) 1 Ch. 269 ; Hutchin-
son V. Stephens, 6 Sim. 498 (as to what constitutes absence
abroad) ; and see also re Gardner, 10 Ch. D. 29, and post,
p. 107.
9. Where the trustee has absconded. B,e Benshaw's Trusts,
4 Ch. 783 ; and as to vesting property in the other trustees in
such a case, without appointing a new trustee, see Dugmore v.
SuffieU (1896) W.N. 50; re Lees' Trusts (1896) 2 Ch. 508; re
Fitzherlert's Trusts (1898) W.N. 58.
10. Where a trustee is incapable through age or physical
infirmity. Be Lemann's Trust, 22 Ch. D. 633 ; re Phelps' Settle-
ment, 31 Ch. D. 351 ; re Dewhirst's Trusts, 33 Ch. D. 416 ; re
Martin's Trusts, 34 Ch. D. 618; re Barber, 39 Ch. D. 187; re
Weston's Trusts (1898) W.N. 151.
11. Where the trustee is a lunatic or mentally infirm. -Be
Boyce, 4 D.G.J. & S. 205 ; re Yichers, 3 Ch. D. 112. (As to
the want of jurisdiction in the Chancery Court to make a
vesting order in the case of a lunatic trustee, see infra,
p. 104.)
12. Where the trustee is a bankrupt. Coombes v. Broohes,
12 Eq. 61; re Barker, 1 Ch. D. 43; re Adams' Trusts, 12 Ch.
D. 634; re Foster, 55 L.T. N.S. 479. (In the last-cited case,
although the trustee has obtained his discharge.) Be Betts,
McLean v. Betts, 41 S.J. 209.
13. Where the trustee is a felon. Be Dawson's Trusts (1899)
W.N. 134, S.C.(reported as re Hanson), 43 S.J. 706.
14. Where a vesting order is required. Be Davies, 3 M. & G.
278 ; re Stocken's Settlement (1893) W.N. 203.
"Inexpedient, difficult, or impracticable so to do without
the Assistance of the Court." — In general where there are
persons in existence able and willing to exercise the power of
appointment of new trustees, contained in the instrument, or
given by section 10 of the present Act, the Court has no power
under this section to appoint new trustees. Be Sutton (1885)
W.N. 122; re Gibbon's Trusts (1882) W.N. 12; re Higgin-
botham (1892) 3 Ch. 132. But in re Humphrey, 1 Jur. N.S.
921 ; re Somerset (1887) W.N. 122, in which cases the persons
having the power to appoint were resident abroad, and it was
not shown whether or not they were willing to appoint, the
Court exercised its power under this section. The Court will
appoint under this section in the case of a person having power
to appoint (under the trust instrument or under section 10 of
the present Act) being a lunatic or mentally infirm. In re
Sparrow, 6 Ch. 662. As to the jurisdiction in lunacy in such a
case, see Lunacy Act, 1890 (53 Viet. c. 5), sections 128 and 129 ;
re Shortridge (1895) 1 Ch. 278 ; and note, "No such person able
and willing to act," p. 64, supra. It has been held inexpedient
Trustee Act, 1893, 99
to appoint without the assistance of the Court in a case in Sect. 25.
which a vesting order is required. In re Davies, 3 M. & G. 278 ;
and see re Stocken's Settlement (1893) "W.N. 203. In cases in
which an additional trustee is required, and no vacancy exists,
there is no power under section 10, nor under the usual pro-
visions of trust instruments, to make the appointment without
the assistance of the Court, and in such cases the Court will
appoint. Be Gregson, 34 CD. 209.
" Make an Order." — As stated above, the Court has, inde-
pendently of statutory provisions, inherent jurisdiction to
appoint a trustee in an action, whenever such appointment is
necessary. The power to appoint by order as apart from a
decree was first conferred in certain cases by section 22 of
Lord St. Leonards's Trustee Act, 1830 (11 Geo. 4. and
1 Will. 4. c. 60), and in general terms by the sections of the
Trustee Act, 1850, which are replaced by the present section.
What Persons are eligible for Appointment. — For the
general principles in accordance with which the Court exercises
its discretion in selecting trustees, see In re Tempest, 1 Ch.
485; Tempest v. Camay s, 58 L.T. 221; Forster v. Abraham,
17 Eq. 351; re Earl of Stamford (1896) 1 Ch. 288. The
general rule is that the Court will not appoint a tenant for life
one of the trustees, although it may do, and sometimes has done,
so in special circumstances. Forster v. Abraham, 17 Eq. 361 ;
ex parte Glutton, 17 Jur. 988; re Carrie, 10 CD. 93; re Price
(1883) W.N. 202; Tempest v. Camoys, 58 L.T. 221. The same
rule applies to beneficiaries generally, re Conybeare, 1 W.B.
458; re Clissold, 10 L.T. 642; re Burgess (1877) W.N. 87;
re Idghtbody, 52 L.T. 40 ; also to a near relative, Wilding v.
Bolder, 21 B. 222 ; and to the husband of a beneficiary, re
Parrott (1881) W.N. 168; re Eattett, 18 W.R. 416 ; (unless in
the case of a very small fund, re Knight, 26 CD. 82) ; and also
to the solicitor of any of the beneficiaries, re Earl of Stamford
(1896) 1 Ch. 288 ; and possibly also to the agent of the estate,
re Freeman's Settlement, 37 CD. 148. In appointing a bene-
ficiary the Court has in some cases required an undertaking by
him to at once appoint new trustees if he should become sole
trustee, re Hattet ; re Burgess ; re Lightbody, supra.
Formerly, the Court, though it sometimes appointed an
unmarried woman trustee, re Campbell, 31 B. 176, as a rule
refused to do so, except when special circumstances were
proved. Brook v. Brook, 1 Beav. 631 ; Berkley v. Berkley,
9 Ch. 720. But although the Court still exercises special care
in such a case, re Peake (1894) 3 Ch. 620, such appointments
are now frequently made, re Dickinson (1902) W.N. 104.
Since a married woman cannot convey trust estates without
the concurrence of her husband, re Harkness and Allsopp (1896)
2 Ch. 358 (unless she is a bare trustee within section 16 of
the present Act, see notes, p. 73, supra'), and does not become
personally liable as debtor in respect of a breach of trust, re
Turnbull (1900) 1 Ch. 180, it is submitted that, in spite of the
100 Trustee Act, 1893.
Sect. 25. alteration in her position effected by the Married Women's
— Property Act, 1882 (see especially sections 18 and 24), she is
still not a fit person to he appointed a tmstee by the Court,
except in special circumstances. The exception of the husband
from liability by virtue of section 24 of the last-mentioned Act
afEords an additional reason against such an appointment.
The Court has probably no power to appoint a corporation
to be trustee. Per North, J., In re Brogden, Billing v. Brogden
(1888) W.]Sr. 238.
In special circumstances the Court has appointed persons
out of the jurisdiction. Be Freeman's Settlement, 37 CD. 148 ;
re Cunard, 27 W.R. 52 ; re Simpson (1897) 1 Ch. 256.
The Number of Trustees to be appointed. — The general
rule is that on the appointment of a new trustee or new trustees
the original number of trustees will be made up.
Where, however, only one was originally appointed the Court
will act on the well-recognized principle that it is not desirable
that the administration of a trust shall be in the hands of a
sole trustee, re Dickinson, 1 Jur. N.S. 724; re Porter, 2 Jur. N.S.
349, and will appoint two or more trustees, exparte Tunstall, 4
De G. & S. 421 ; except in special cases, as when the trust is to
be immediately wound up, when a sole trustee may be appointed,
re Beynault, 16 Jur. 233. Where one alone was originally
appointed, and no vacancy has occurred, the Court will some-
times, though not as a matter of right, appoint an additional
trustee. Grant r. Grant, 34 L.J. Ch. 641 ; re Brackenbury, 10
Eq. 45.
Where more than one trustee was originally appointed, the
Court will, when it appears desirable, increase the original
number either under its original jurisdiction in a suit, Birch
v. Oropper, 2 De G. & S. 255 ; Plenty v. West, 16 Beav. 356 ;
D'Adhemar v. Bertrand, 35 Beav. 19 ; or under its statutory
powers, re Welch, 3 My. & Cr. 292 ; re Boycott, 5 W.R. 15 ; re
Gregson, 34 Ch. D. 209. In filling up a vacancy the Court will
only in special cases, as when the trust is to be immediately
wound up, re Marriott, 18 L.T. 749, or it is found impossible to
find persons to serve as trustees, Bulheley v. Harl of JEglinton,
1 Jur. N.S. 994 ; re Fowler (1886) W.N. 183, reduce the original
number of trustees, and will probably never appoint a sole
trustee where more than one were originally appointed, re
miison, 2 Jur. N.S. 62 ; West of England Bank v. Murch, 23
Ch. D. 138.
At one time the power of the Court to appoint less than the
original number was utilized to effect the discharge of a trustee,
the other trustees being reappointed in place of themselves and
the retiring trustee, re Shipperdson's Trusts, 49 L.J. (N.S.) Ch.
619 ; re Harford's Trusts, 13 Ch. D. 135. But later decisions laid
down the rule that the Court has no power to make such order.
In re Golyer, 50 L.J. (N.S.) Ch. 79 ; re Aston, 23 Ch. D. 217 ;
re Gardiner, 33 Ch. D. 690; re Chetwynd (1902) 1 Ch. 692,
except perhaps where the trustees have virtually no duty to
Trustee Act, 1893. 101^
V T'^."'
perform, Davies v. Eodgson, 32 Cli. D. 226. Another possible Sect. 25.
exception is in the case of the absolute impossibility of securing
a new trustee, re Mace's Trusts (1887) W.N". 232, but it
seems questionable ■whether this decision can be reconciled
with the other authorities, and especially with re Gardiner's
Trusts, cited above. In cases such as that of an absconding
trustee, coming within section 26, subsection 2 of the present
Act, the necessity of appointing a new trustee may be dispensed
with, and the property at once vested in the other trustees, to
the exclusion of the absconding trustee, re Watson, 19 Ch. D.
384 (overruling re Nasli, 16 Ch. D. 503) ; re Ma/rfyn, 26 Ch. D.
745; re Leon (1892) 1 Ch. 348; Bugmore v. Sufield (1896)
•W.N. 50; re Lees (1896) 2 Ch. 508; re Fitzherhert (1898)
W.N". 58.
As to the voluntary retirement of one trustee and the
vesting of the property in the continuing trustees, see section
11, supra.
"A New Trustee." — The Court has no power in ordinary
circumstances to reappoint the existing trustees for the purpose
of making a consequential vesting order. This device, though
formerly resorted to, re Balgleish's Settlement, 4 CD. 143 ; re
Crowe's Trust, 14 CD. 610, was disproved in re Yicat, 33 CD.
103, and re Dewhirst's Trusts, 33 CD. 416, except in cases in
which there is a reasonable question whether the existing
trustees have been validly appointed. The proper course is to
obtain a vesting order under some other subsection than sub-
section 1 of sections 26 and 35 of the present Act. If none
such apply, one of the trustees should retire so as to enable the
Court to appoint a new trustee in his place. In re Stochen's
Settlement (1893) W.N. 203.
New Trustee of Part of Trust Property. — Although section 25
contains no such express provision as that of section 10 (2) (6)
(see notes to section 10 (2), supra, p. 57), the Court can
appoint separate sets of trustees thereunder, re Paine's Trusts,
28 CD. 725 ; re Hethering ton's Trusts, 34 CD. 211 ; re Moss's
Trusts, 37 CD. 513 ; re GotterilVs Trusts (1869) W.N. 183 ;
re Ounard's Trusts, 27 W.R. 52 ; re Aston's Trusts, 25 L.R. Jr.
96 ; as also in an administration action, re Grange, Gooper v.
Todd (1881) W.N. 50. Where there were no existing trustees
the Court appointed new trustees of part only of the trust
property, Savile v. Gouper, 36 CD. 520 ; re Moss's Trusts,
supra ; re Nesbitt's Trusts, 19 L.R. Ir. 509.
"In substitution for." — As to the removal of a trustee
against his will, see commencement of note to this section,
ante, p. 96. As to the power of the Court to discharge a
trustee under this section from part only of the trusts, see
notes to section 10, subsection 2, supra, p. 57. As to increasing
or reducing the number of trustees, see ante, p. 100.
" In addition to." — The Court has power under this section
to appoint additional trustees when no vacancy has occurred,
102 Trustee Act, 1893.
Sect. 25. re Boycott, 5 W.R. 15 ; re Gregson, 34 CD. 209. _ No such
power is given to individuals by section 10. As to increasing
or reducing the number of trustees, see ante, p. 100.
" Or although there is no Existing Trustee." — The section
authorises the appointment of a new trustee or new trustees
(1) if there be an existing trustee or existing trustees (and then
either in substitution for or in addition to any existing trustee
or trustees), or (2) if there be no existing tnistee. The Trustee
Act, 1850, did not contain this phrase, " although there is no
existing trustee," and the suggestion was ma-de that in a case
in which all the trustees appointed by a will had disclaimed,
the Act gave no power to appoint. See re Tyler's Trusts, 5
De Gr. & S. 56; re Hazeldine, 16 Jur. 853. The phrase was
accordingly inserted by section 9 of the Trustee Extension Act,
1852, to meet this objection. The question is, however, still
left open whether the Act gives a power to appoint trustees of
a will where no trustees have been appointed by the testator,
or whether in such a case the Court can only appoint by virtue
of its inherent jurisdiction. Bodkin v. Brunt, 6 Eq. 580. As to
merely constructive trusts, however, it is probable that this
question will seldom arise, as, in almost every case, some person
can be found who may be regarded as trustee ; e.g. the heir or
executor of testator, re Davis's Trust, 12 Eq. 214; re Moore,
21 Ch. D. 778. Cf. also cases of Gunson v. Simpson, 5 Eq. 332 ;
re Williams' Trusts, 36 Ch. D. 231 ; re Smirthwaite's Trusts,
11 Eq. 261, in which cases all trustees named in the will
predeceased the testator, and the testator's heir was held to
be a trustee.
" Who is convicted of Telony, or is a Bankrupt." — See note,
" The High Court may, etc.," p. 96, sujira ; and " Whenever it
is expedient to appoint a new trustee (12), (13)," p. 98, supra.
As to the effect of felony on the vesting of trust property, see
section 48, post, p. 159.
" Shall not operate further or otherwise as a Discharge." —
As to the liability of a retiring trustee for breaches of trust
committed by his successor when the breaches of trust were in
contemplation at the time of the retirement and appointment,
see Head v. Gould (1898) 2 Ch. 250.
"Power to appoint an Executor or Administrator." — The
express negation of jurisdiction to appoint an executor or
administrator is introduced in the present section owing to the
construction which (in reliance on the definition of " trustee " as
including an executor or administrator) had been attempted to
be placed on the corresponding section of the Trustee Act, 1850.
Be Moore, 21 CD. 778 ; Brown v. Burdett, 40 CD. at p. 253.
Later cases decided that the Act of 1850 did not give power to
appoint a new executor, or a new trustee to perform the duties
of an executor, but only power to appoint a trustee in place of
an executor when all the duties of executor had been performed.
In re Willey (1890) W.N. 1 ; Eaton v. Baines (1894) W.N. 32.
Trustee Act, 1893. 103
Further as to this question, and the absence of any provision Sect. 25.
similar to this subsection in section 10 of this Act, see notes on
p. 50, supra.
Practice. — See Trustee Act Eules (Order 54 (6) of Rules
of Supreme Court), and notes thereon, post, p, 202.
For definitions of " trustee " and " bankrupt," see section 50,
infra, p. 161.
Section 26. — In any of the following cases, Sect 26.
namely : —
(i.) Where the High Court appoints or lia^s ^^^^^^^^^ ^^^
appointed a new trustee ; and land.
(ii.) Where a trustee entitled to or possessed of
any land, or entitled to a contingent right
therein, either solely or jointly with any
other person —
(a) is an infant, or
(6) is out of the jurisdiction of the
High Court, or
(c) cannot be found ; and
(iii.) Where it is uncertain who was the survivor
of two or more trustees jointly entitled
to or possessed of any land ; and
(iv.) Where, as to the last trustee known to
have been entitled to or possessed of any
land, it is uncertain whether he is living
or dead ; and
(v.) Where there is no heir or personal repre-
sentative to a trustee who was entitled to
or possessed of land and has died intestate
as to that land, or where it is uncertain
who is the heir or personal representative
or devisee of a trustee who was entitled
to or possessed of land and is dead ; and
(vi.) Where a trustee jointly or solely entitled to
or possessed of any land, or entitled to a
contingent right therein, has been required,
by or on behalf of a person entitled to
require a conveyance of the land or a
release of the right, to convey the land or
to release the right, and has wilfully
refused or neglected to convey the land
104 Trustee Act, 1893.
Sect. 26. or release tlie right for twenty-eight days
after the date of the requirement ;
the High Court may make an order (in this Act
called a vesting order) vesting the land in any such
person in any such manner and for any such estate
as the Court may direct, or releasing or disposing
of the contingent right to such person as the Court
may direct.
Provided that —
(a) Where the order is consequential on the
appointment of a new trustee the land
shall be vested for such estate as the
Court may direct in the persons who on
the appointment are the trustees ; and
(b) Where the order relates to a trustee entitled
jointly with another person, and such
trustee is out of the jurisdiction of the
High Court or cannot be found, the land
or right shall be vested in such other
person, either alone or with some other
person.
Subsection (i.). — This subsection replaces section 34 of the
Trustee Act, 1850 (13 & 14 Vict. c. 60), which section is
repealed by the present Act. See section 61, and Schedule,
i7ifra.
In spite of the general language of the subsection, no
jurisdiction is thereby given on an appointment of a new-
trustee to make a vesting order affecting property vested in
a lunatic, unless, indeed, such lunatic is an infant, or out of the
jurisdiction within the meaning of subsection (ii.).
The Trustee Act, 1850, by sections 32, 34, and 35, made
provision for the appointment of new trustees by the Court
of Chancery, and for the vesting of the trust property in the
new trustees. The wide language of these sections would
doubtless have been held to include the particular case of the
appointment in place of a lunatic trustee, and the necessary
vesting order thereon, but for the fact that, by sections 3, 4,
and 5 of the same Act, there is special provision for the making
of vesting orders in the case of lunatic trustees, not by the
Court of Chancery, but by the Lord Chancellor, in Lunacy. It
was accordingly held that, although a trustee could be appointed^
by the Court of Chancery in place of a lunatic trustee, no order
divesting the property from him could be made except in
lunacy. By section 10 of the Trustee Extension Act, 1852
(15 & 16 Vict. c. 56), power was given to the Lord Chancellor
Trustee Act, 1893. 105
in Lunacy to make an order for the appointment of new trustees Sect. 26.
in every case in which, under the Trustee Act, 1850, he had
jurisdiction to make a vesting order. Consequently, in the
case of a lunatic trustee there was jurisdiction in Lunacy to
appoint a new trustee, and to make a vesting order as to the
property vested in the lunatic, and there was jurisdiction in
Chancery to appoint a new trustee, but not as a rule to make
a vesting order. Be Ormerod, 3 De G. & J. 249 ; re Boyce,
4 D. J. & S. 205 ; re Sparrow's Trusts, 5 Ch. 662 ; re Vickers,
3 CD. 112. The repeal and substantial re-enactment by the
Lunacy Act, 1890, of the sections of the Trustee Act, 1850,
dealing with lunatics, and the passing of the Trustee Act, 1893,
have left the law on this point unchanged. See the judgment of
Stirling, J., in re M. (1899) 1 Ch. 79, in which the whole
question and the earlier authorities are fully discussed.
It has been decided that there is jurisdiction in Chancery
to make a vesting order in the case of a lunatic trustee, if the
lunatic trustee is an infant, re Arrowsmith, 6 W.R. 642 (and see
re Edwards, 10 CD. 605, and Lunacy Act, 1890, section 143),
or out of the jurisdiction, re Gardner's Trusts, 10 CD. 29 ;
Caswell V. Sheen, 69 L.T. N.S. 854; and of. Herring v. Clark,
4 Ch. 167 ; for in the cases of infant trustees and trustees out
of the jurisdiction, express provision was made by sections 7 to
12 of the Trustee Act, 1850, for vesting the property by order
of the Court of Chancery, apart from any appointment of new
trustees. Where, however, the sole jurisdiction to make a
vesting order depends on the fact of the appointment of new
trustees, no such order can be made in Chancery of property
vested in a lunatic. In re Mason, 10 Ch. 273. It is submitted
that the law has in this respect been unaffected by the
Lunacy Act, 1890, and the Trustee Act, 1893. Cf. re M.,
above referred to.
In certain cases vesting orders must be made and entituled
both in Chancery and Lunacy, viz. when property has to be
divested from both a lunatic and a sane trustee. This necessity
occurs whenever a new trustee is appointed in place of a lunatic
one of two or more trustees, for it is not sufficient to divest the
property from the lunatic and vest his share in the continuing
and new trustees, but the whole property must be divested from
the old trustees and vested in the continuing and new trustees
as joint tenants. In re Pearson, 5 CD. 982 ; re Ohell, 49 L.T. N.S.
196. In such cases the order is made by the Lords Justices in
Lunacy under the Lunacy Act, and in Chancery under their
Chancery jurisdiction : and by virtue of the present section. As
to the Chancery jurisdiction of the Lords Justices, see re Piatt,
36 CD. 410 ; re Farnham (1896) 1 Ch. 836.
An exceptional case of similar nature is that of property in
Ireland being vested in an English lunatic trustee. Since the
Lunacy Act, 1890 (53 Vict. c. 6), does not extend to Ireland,
the Judge in Lunacy has no jurisdiction thereunder to vest
land or stock in Ireland, and accordingly the Chancery juris-
diction has to be resorted to for the appointment of a new
106 Tkdstee Act, 1893.
Sect. 26. trustee, and tie consequent vesting order (Lewin, 819). Be
Davies, 3 Mac. & G. 278 ; re Hodgson, 11 CD. 888 ; re Lamotte,
4 CD. S25 ; re Smyfh, 55 L.T. N.S. 37.
As to tlie distinction between that physical weakness and
decay which may make an appointment of new trustees and
consequent vesting order by the Chancery Court expedient,
and that mental weakness and decay which gives rise to the
jurisdiction in lunacy, see re Lemann's Trusts, 22 CD. 633 ;
re Phelps' Settlement Trusts, 31 CD. 351 ; re Dewhirst's Trusts,
33 CD. 416 ; re Martin's Trusts, 34 CD. 618 ; re Barber, 39
CD. 187 ; re Weston's Trusts (1898) W.N. 151 ; and cf. section
116 of the Lunacy Act, 1890 (53 Vict. c. 5).
The Court will not, for the purpose of making this subsection
available, reappoint the existing trustees. See re Dewhirst's
Trusts, 38 CD. 416, overruling In re Balgleish's Settlement,
4 CD. 143 ; and see note, " A new trustee," to section 25, supra,
p. 101. The Court will, however, appoint a new trustee for the
purpose of making a vesting order under this subsection. Ee
Bavies, 3 M. & G. 278 ; re Stocken's Settlement (1893) W.N. 203.
The subsection only applies where the appointment is made I
by the Court. Thus, where an appointment of new trustees is
desired and a vesting order is necessary, application should be
made for appointment of new trustees by the Court. The sub-
section applies to appointments by the Court under its ordinary
as well as under its statutory jurisdiction. iJe Hughes's Settle-
ment, 2 H. & M. 695, a case in which trustees of a settlement
who had obtained an order in a suit for the transfer of a
mortgage debt to themselves, were held to be " new trustees "
of the mortgage within the meaning -of section 34 of the
Trustee Act, 1850.
For definition of " trustee," see section 50, infra.
Subsection (ii.). — This subsection replaces sections 7 to 12 of
the Trustee Act, 1850, so far as those sections applied to
trustees. As to mortgagees, see section 28 of the present Act.
The subsection deals with three only of the various ways in
which a trustee becomes incapable of acting. It appears to be
a matter for regret that " bankruptcy," " felony," " unfitness,"
and " unwillingness to act," were not included in the subsection,
so as to enable the Court in such cases to vest the property
in the other trustees without the necessity of appointing a new
trustee. See note, " A new trustee," to section 25, supra, p. 101 ;
and see concluding paragraph of note, " The number of trustees
to be appointed," ante, p. 100.
It may even be suggested that in place of any detached list
of cases, in which the Court is authorised to make a vesting
order, general language such as that used in section 25 might
well have been employed.
The case of a lunatic trustee is dealt with by the Lunacy
Act, 1890, but in cases where the lunatic trustee is an infant, or
oat of the jurisdiction, vesting orders may be made by the
High Court under the present subsection. See re Arrowsmith,
Tkustee Act, 1893. 107
6 W.E. 642; 4 Jur. N.S. 1123; In re Gardner's Trust, 10 Sect. 26.
CD. 29; section 143 of the Lunacy Act, 1890; and note to
subsection (i.), sujyra, p. 105.
The Court is authorised to make a vesting order as to land
upon a judgment for sale or mortgage by section 30, and upon
a judgment for specific performance by section 31, and in cases
covered by those sections a vesting order will not be made
under the present section. lie Carpenter, Kay 418 ; and note,
" General effect of sections 30 and 31," infra, p. 118.
" Entitled to or possessed of." — This phrase replaces the
expression " seised or possessed of " in section 7 of the Trustee
Act, 1850. As to this change of phraseology, see note to the
definition of " possessed " in section 50, infra, p. 166. It seems
clear that both expressions include vested interests of a free-
hold or leasehold nature either in possession or reversion.
" Either solely or jointly with any other Person." — Where
the legal estate in land is vested in two persons, either as
tenants in common or as joint tenants, one of whom is alone
beneficially entitled, the other is " solely " entitled upon trust.
McMurray v. Spicer, 5 Eq. 527. Where the legal estate in
copyholds is vested in coparceners as trustees, each coparcener
is "jointly" entitled. Be Greenwood's Trusts, 27 CD. 359.
(ffl) " Is an Infant." — The case of an infant trustee is now
only likely to occur in the cases of constructive trusts, when
a last surviving trustee of copyholds has died intestate leaving
an infant customary heir, for neither section 4 nor section 30 of
the Conveyancing and Law of Property Act, 1881, which vest
trust estates in the personal representative instead of in the heir
of a deceased trustee, apply to copyholds. See Copyhold Act,
1894 (section 88), replacing Copyhold Act, 1887 (section 45) ;
re Mills, 37 CD. 312 ; 40 CD. 14 ; re Beaufort (1898) W.N.
148 ; nor does section 1 of the Land Transfer Act, 1897, apply
to copyholds.
(6) " Is out of the Jurisdiction of the High Court."— This
phrase refers not to merely temporary absence, as on a voyage.
Hutchinson v. Stephens, 5 Sim. 498 (a case under Lord St.
Leonards's Trustee Act, 1830, 11 Geo. 4., 1 Wm. 4. c. 60). See
also re Mais, L.J. Ch. 875 ; re Earl of Stamford (1896) 1 Ch.
288 ; and re Walker (1901) 1 Ch. 259, as to what constitutes
absence abroad ; and cf. the language of section 10 of the present
Act, which gives power to appoint if a trustee " remains out of
the United Kingdom for more than twelve months." It seems
that a trustee maybe treated as out of the jurisdiction although
he appears by counsel. Stillwell v. Ashley, cited in Seton on
Decrees, 6th edit., p. 1247.
Cases in which the Court has made vesting orders under
this subsection or section 9 (the corresponding section) of the
Trustee Act, 1850, which it in part replaces, are re Skitter,
4 W.R. 791, in which case, on the death of a mortgagee
intestate after going into possession, the heir was considered a
108 Trustee Act, 1893.
Sect. 26. trustee for the executors (cf. section 29, infra) ; Hooper y.
Strutton, 12 W.R. 367, in whicli ease the heir of an owner of
land was held a trustee for his executors, to whom he had given
a power of sale; re Stanley's Trust (1893) W.N. 30, in which
case service on the heir of a sole trustee was dispensed with on
the grounds that in the circumstances it was extremely unlikely
he could have any claim for costs.
(c) "Cannot be found." — Cases in which the Court has
made vesting orders under this subsection or section 9 (the
corresponding section) of the Trustee Act, 1850, which it in
part replaces, are Wilks r. Groom, 6 De G.M. & G. 205, in
which case, on the disclaimer by all the trustees of a will,
land was held to have vested in the heir of the deceased
owner, and after a failure to discoyer on inquiry who was
the heir, a vesting order was made by the Court; re General
Accident Assurance Corporation, Limited (1904) 1 Ch. 147, where
a limited company trustee after voluntary liquidation, was dis-
solved, and it was held that the case came within this sub-
section ; Buckley, J., however, dissents from this decision, re
Niger Patent Enamel Co. (1904) W.ISr. 99, 120 ; re Barber, 58
L.T. 303, in which case an estate vested by way of mortgage in
an absconded trustee was by the order of the Court vested in
the persons beneficially interested in the mortgage ; re Walker's
Mortgage Trusts, 3 CD. 209, in which case a mortgage was
vested in three trustees, one of whom went abroad and could
not be fonnd, and on the receipt of the mortgage money by the
other trustees from an intending transferee, a vesting order
was made of the estate of the absconding trustee (see notes on
"trustee," in section 50, infra, p. 168, as to when that term
includes a mortgagee). Bugmore v. Suffield (1896) W.N. 50, in
which case mortgage estates were vested in four trustees, one of
of whom absconded, and the estate of the absconding trustee
was vested in the other trustees ; re Lees' Settlement Trusts
(1896) 2 Oh. 508, a similar case ; (in the last cited-case it
appears to be suggested that the present subsection is wider
than the section replaced, but it is submitted that there is
nothing to support this suggestion;) re Fitzherbert's Settlement
Trusts (1898) W.N. 58, a similar case.
For definitions of " trustee," " possessed," " land," and " con-
tingent right," see section 50, infra.
Subsection (ill.). — This subsection replaces section 13 of
the Trustee Act, 1850, which is repealed by the present Act.
See section 51, and Schedule, infra.
" Entitled to or possessed of." — See note on these words
under subsection (ii.).
For definitions of "trustee," "possessed," and "land," see
section 50, infra.
Subsection (iv.). — This subsection replaces section 14 of
the Trustee Act, 1850, which is repealed by the present Act.
See section 61, and Schedule, infra.
Trustee Act, 1893. 109
As to the presumption of death arising from the fact that a Sect. 26.
person has not been heard of for seven years, see re Phene's
Tntst, 5 Ch. 139 ; re Lewes Trusts, 6 Ch. 356 ; Hickman v. Upsall,
20 Eq. 136 ; re Corhishley's Trusts, 14 CD. 846 ; re Rhodes, 36
CD. 586 ; re Benjamin (1902) 1 Ch. 723.
"Entitled to or possessed of." — See note on these words
nnder subsection (ii.).
For definitions of "trustee," "possessed," and "land," see
section 50, infra.
Subsection (v.). — This subsection replaces section 15 of
the Trnstee Act, 1850, which section is repealed by the present
Act. See section 51, and Schedule, infra. The repealed section
applied to the cases " when any person seised of any lands upon
any trust shall have died intestate as to such lands without an
heir, or shall have died and it shall not be known who is his
heir or devisee," and was held not to apply to leaseholds, re
Mundel's Trusts, 8 W.R. 683.
" Heir or Personal Representative." — Since neither section 4
nor section 30 of the Conveyancing and Law of Property Act,
1881, applies to copyholds or customary freeholds, the word
"heir" is still required in the present section. The words
" personal representative " are necessary for the case of freeholds
as well as of leaseholds.
" Entitled to or possessed of." — These words, replacing the
words " seised of," have the effect of extending the operation
of this subsection to leaseholds as well as freeholds and copy-
holds. See also notes on these words under subsection (ii.).
" Uncertain who is, etc." — Where the validity of the will
was disputed, it was held that it was uncertain who was the
personal representative within the meaning of section 29,
re Cook's Mortgage (1895) 1 Ch. 700.
"Devisee." — This word is necessary for the like reasons
stated above for the retention of the word " heir."
For definitions of "trustee," "possessed," "land," and
" devisee," see section 50, infra.
Subsection (vi.). — This subsection replaces section 2 of
the Trustee Extension Act, 1852 (15 & 16 Vict. c. 55). The
repealed section replaced sections 17 and 18 of the Trustee
Act, 1850, under which the power of the Court arose only upon
a written refusal to convey, or neglect, or refusal so to do, after
tender of a proper deed. As to the inconvenience of such
restriction, see Rowley v. Adams, 14 B. 130.
"Entitled to or possessed of." — See note on these words
nnder subsection (ii.), supra, p. 107.
" Has been required." — No special form of requisition is
essential, but some demand must be proved to have been
made.
110
Tbustee Act, 1893.
Sect. 26. " Persons entitled to require." — A person who has purchased
~ the beneficial interest in the land from the beneficiaries is (in
. the absence of dispute as to title) a person entitled to require a
conveyance or surrender from the trustee. J2e Mills, 40 CD. 14;
re O'Bonnell, 19 W.B,. 622.
An assignee of a mortgage is entitled to require a surrender
by tlie mortgagor of copyholds in accordance with a covenant
in the mortgage deed, re Crowe's Mortgage, 13 Eq. 26. A pur-
chaser of land sold under a decree of the Court is entitled to
require a conveyance from the person in whom the land is
vfested, Itowley v. Adams, 14 B. 130. Where a trustee has
been appointed out of Court in place of a trustee who had
absconded, and the absconding trustee refuses to convey, an
order will be made under this subsection on the application of
the persons entitled to appoint and the continuing and new
trustees, re Keeley, 53 L.T. 487. A beneficiary absolutely
entitled to land is entitled to require a conveyance by trustees
in whom it is vested, re Orayson, 27 W.E. 534; Brader v.
Kerby (1872) W.N. 174. A person who had obtained a decree
for specific performance declaring the defendant a trustee for
the purpose of granting a lease, is a person entitled to require a
conveyance, and although in such a case a vesting order will
not be made, the Court will appoint a person to execute the
lease on behalf of the defendant if he refuse to grant the lease.
Derham v. Kiernan, I.R. 5 Eq. 217.
"Wilfully refused or neglected." — A refusal of a trustee to
convey has been held not to be wilful within this provision, if
the title of the person asking for the conveyance is disputed,
and the trustee entertain a hond fide doubt as to it, re Mills,
40 CD. 14, though, in earlier cases, this rule was not always
observed, re Grayson, 27 W.E. 634.
" For Twenty-eight Days." — The Court has no jurisdiction
to make an order upon a petition presented before the expira-
tion of the twenty-eight days, re Knox (1896) 1 Ch. 538 ;
(1895) 2 Ch. 483 (a decision on the similar language of section
36). In Knight v. Knight (1866) W.N. 114, a motion for a
vesting order in a suit was ordered to stand over until the
expiration of the twenty-eight days.
" The High Court may make an Order." — As to the Chancery
jurisdiction of the Lords Justices in Lunacy, see ante, p. 105.
" A Vesting Order." — Before the passing of the Trustee Act,
1850 (13 & 14 Vict. c. 60), the Court had no power to ve»t land
or other property by decree or order. It had, however, power
by virtue of several statutes, and especially of Lord St. Leonards's
Trustee Act (11 Geo. 4., 1 Wm. 4., c. 60), either to direct
trustees under disability to convey or to appoint persons to
convey for them. The right to appoint persons to convey is
' reserved as an alternative in the present Act (see section 33,
infra). Both Lord St. Leonards's Trustee Act and the Trustee
Act, 1850, contained sections authorising the making of such
Trustee Act, 1893. Ill
orders on petition. The present Act does not contain similar Sect. 26.
sections, but leaves the form of proceedings to be dealt with by
the Rales of Court. For these, see post, p. 191.
With regard to property, the title to which is registered
under the Laud Transfer Acts, 1875 and 1897, Rule 151 of
the Land Transfer Rules, 1903, provides that, when the power
of disposing of registered land has by order of Court become
vested in some person other than the registered proprietor,
and the registered proprietor refuses to execute a transfer,
or his execution of a transfer cannot be obtained, or can only
be obtained after undue delay or expense, the registrar may,
after due notice under the rules to such proprietor, and on
production of the land certificate, and such evidence as he
may deem sufficient, make such entry in or correction of the
register as under the circumstances he shall think fit. The
power conferred on the registrar by rule 151 is extended by
Rule 174 to registered charges. The Land Transfer Acts and
Rules do not, it is conceived, in any way affect the power of
the Court to make an order vesting the land under the Trustee
Act, 1893 (cf. Capital and Counties Bank v. Bhodes (1903)
1 Ch. 657), but the vesting order requires to be followed by
the rectification of the register either under Rule 151 of the
Laud Transfer Rules, 1903, or section 95 of the Land Transfer
Act, 1875, which gives any Court of competent jurisdiction
general power to order rectification of the register. The pro-
cedure prescribed by Rule 151 is troublesome and expensive,
and the right practice would seem to be, where an order vesting
registered land is sought, to ask, in addition, for an order for
rectification of the register under section 95. An office copy
of the order would then be served on the registrar pursuant
to Rule 310, and he is bound by section 96 of the Act of 1875
to obey the order.
With regard to land out of the jurisdiction, see section 41,
infra, and notes thereon ; and section 2 of the Act of 1894,
infra.
Section 27. — Where any land is subject to a sect. 27.
contingent right in an unborn person or class of
unborn persons who, on coming into existence would, Orders as to
in respect thereof, become entitled to or possessed rights of
of the land on any trust, the High Court may make ™|">™
an order releasing the land from the contingent
right, or may make an order vesting in any person
the estate to or of which the unborn person or class
of unborn persons would, on coming into existence,
be entitled or possessed in the land.
This section re-enacts, with verbal amendments, section 16
of the Trustee Act, 1850 (13 & 14 Vict. c. 60), which section
112 Tetjstee Act, 1893.
Sect. 27. is repealed by the present Act. See section 50, and Schedule,
infra.
i The circumstances contemplated by this section are only
• likely to occur in the case of constructive trusts. As to the
' necessity for a judgment declaring the rights of the parties in
I the case of certain constructive trust, see note to section 30,
I *' General effect of sections 30 and 31," infra, p. 118.
"Contingent Right." — All rights of unborn persons are
necessarily contingent.
" Unborn Persons." — This phrase, it is submitted, must here,
as in section 30 of the Trustee Act, 1850, be given a meaning
wider than its popular sense, and will include, e.g., the heirs of a
living person, and generally " any person so far not in existence
as that he could not be properly made a party to an action."
Cf. judgment of Jessel, M.R., in Basnett v. Moxon, 20 Eq. 182.
For cases in which the power given to the Court by section
16 of the Trustee Act, 1850, has been exercised, see Wahe v.
WaJce, 1 W.R. 283, and cases noted under section 31, infra.
"Entitled to or possessed of." — See note on these words
under subsection (ii.) of section 26, supra, p. 107.
For definitions of " land," " contingent right," " possessed,"
and " trust," see section 50, infra.
Practice. — See ^ost, p. 193.
Sect. 28. Section 28. — Where any person entitled to or
possessed of land, or entitled to a contingent right
y*^*™^ order jjj land, by way of security for money, is an infant,
conveyance the High Court may make an order vesting or
moJtea^ce releasing or disposing of the land or right in like
manner as in the case of an infant trustee.
This section replaces sections 7 and 8 of the Trustee Act, 1850
(13 & 14 Vict. c. 60), so far as they relate to infant mortgagees.
Those sections are repealed by the present Act. See section 61,
and Schedule, infra. As to the earlier history of this enactment
see note to section 29, p. 114, infra.
The effect of the section, stated shortly, is that where a
mortgagee is an infant the Court may make a vesting order in
like manner as in the case of an infant trustee. That a
mortgagee is not, during the continuance of the mortgage, a
trustee for the mortgagor, see definition of trustee in section
j 50, infra, and notes thereon, p. 168, infra.
Since the Conveyancing and Law of Property Act, 1881,
came into force, the case of an infant mortgagee of other than
copyhold land is not likely to be of very frequent occurrence,
for by virtue of section 30 of that Act (replacing section 4 of
the Vendor and Purchaser Act, 1874) mortgage estates now
devolve upon the personal representatives, and do not pass to
Trustee Act, 1893. 113
the heir or devisee, see note, " Is an infant," ante, p. 107. The Sect. 28.
case of an infant personal representative does not often occur, for
in the event of the sole executor being an infant, administration
durante minoritate may be granted by the Probate Division of
the High Court. The case of contingent rights iu land other
than copyholds being vested in an infant by way of security can
hardly now occur.
For an example of an order vesting in executors of a deceased
mortgagee the legal estate in copyholds outstanding in an infant
heir, see re Franklyn (1888) W.N. 217.
"As in the Case of an Infant Trustee." — Section 26, sub-
section 2, provides that where a trustee entitled to or
possessed of any land, or entitled to a contingent right therein,
either solely or jointly with any other person, is an infant, the
High Court may make an order (in this Act called a vesting
order) vesting the land in any such persons in any such manner
and for any such estate as the Court may direct, or releasing
or disposing of the contingent right to such person as the
Court may direct.
The effect of a vesting order under this section is as if the
infant mortgagee had been a person of full capacity and had
executed a conveyance or release to the effect intended by the
order. See section 32, infra.
For forms of order, see Seton on Decrees, 6th edit., pp. 1230
and 1235.
Practice. — See post, p. 193.
For definitions of " land," " possessed," " contingent right, '
and "trustee," see section 50, infra.
Section 29. — Where a mortgagee of land has Sect. 29.
died without having entered into the possession — ]
or into the receipt of the rents and profits thereof, J^^^l^^^ ^f^^^
and the money due in respect of the mortgage has conveyance
been paid to a person entitled to receive the same, ^^4^^' of
or that last-mentioned person consents to any order teix, etc., or
for the reconveyance of the land, then the High ^resentative
Court may make an order vesting the land in such of mortgagee.
person or persons in such manner and for such
estate as the Court may direct in any of the following
cases, namely —
(a) Where an heir or personal representative or
devisee of the mortgagee is out of the
jurisdiction of the High Court or cannot
be found ; and
(b) Where an heir or personal representative or
devisee of the mortgagee on demand made
114 Trustee Act, 1893.
S«ct. 29, by or on behalf of a person entitled to
require a conveyance of the land has
stated in writing that he will not convey
the same or does not convey the same for
the space of twenty-eight days next after
a proper deed for conveying the land has
been tendered to him by or on behalf of
the person so entitled ; and
(c) Where it is uncertain which of several de-
visees of the mortgagee was the survivor ;
and
(d) Where it is uncertain as to the survivor of
several devisees of the mortgagee or as to
the heir or personal representative of the
mortgagee whether he is living or dead ;
and
(e) Where there is no heir or personal repre-
sentative to a mortgagee who has died
intestate as to the land, or where the
mortgagee has died and it is uncertain
who is his heir or personal representative
or devisee.
This section re-enacts, with, some verbal amendments, section
19 of the Trastee Act, 1850 (13 & 14 Vict. c. 60), which
section is repealed by the present Act. See section 51, and
Schedule, infra.
See the definition of trustee in section 50. A mortgagee, so
long as the mortgage money has not been repaid to him, is not
a trustee within the meaning of the present Act.
This section, with section 28, is intended to deal with cases
of difficulty in obtaining the reconveyance or transfer of the
mortgage security, owing to the incapacity of the mortgagee to
convey. It must be noted that while incapacity arising from
infancy is dealt with by section 28 in general terms, incapacity
arising from other causes is only dealt with by section 29 in
cases in which the mortgagee is the heir, personal representa-
tive, or devisee of a deceased mortgagee.
The explanation of the existence and of the form of the
present section is to be found in the history of the successive
statutory enactments dealing with mortgagees under disability.
Cf. Lewin, 3rd (1857) edit., pp. 836, 888.
Under the provisions of 7 Anne, c. 19, an infant trustee
or mortgagee of land was empowered by the direction of the
Court of Chancery by an order made on petition to convey the
lands as if he were of age.
Trustee Act, 1893. 115
Similar provisions were contained in Lord St. Leonards's Sect. 29.
Trustee Act (11 Geo. 4. and 1 Will. 4. c. 60), section 6.
Section 8 of the last-mentioned Act contained provisions
similar to those of the present section, but dealing only with
trustees, and not with the heirs of a deceased mortgagee.
Owing, however, to the language of a reference to section 8 of
Lord St. Leonards's Trustee Act, contained in section 2 of the
Escheat and Forfeiture Act (4 & 5 "Will. 4. c. 23), the judges held
themselves bound to construe section 8 as applying to mortgagees
as well as trustees, exparte Whitton, 1 Keen 278.
An Amending Act (1 & 2 Vict. c. 69) was then passed
to restrict the application of section 8 of Lord St. Leonards's
Trustee Act to the case of trustees, excluding mortgagees, and
this Act made provision for the case of a deceased mortgagee
in language virtually identical with that of the present section.
See Spunner v. Walsh, 10 Ir. Eq. Rep. 214.
The Trustee Act, 1850, in section 7 re-enacted section 6 of
Lord St. Leonards's Trustee Act, in sections 9 to 18 re-enacted
section 8 of Lord St. Leonards's Trustee Act, and in section 19
re-enacted the enabling provisions of 1 & 2 Vict. c. 69.
Since a person in whom mortgage estates are vested becomes
a constructive trustee, either when all moneys secured by the t
mortgage have been paid oS, or when the right to receive the i
mortgage money is vested in another person, re Shitier's Mart- ,
gage Trust, cited below, and since both the Trustee Act, 1850, '■■
and the present Act contain provisions for making vesting
orders in the case of constructive trustees under disability, it
appears at least doubtful whether the provisions contained in
the present section were necessary, either in the Trustee Act,
1860, or in the present Act.
The case of the infancy of an heir devisee or personal
representative of a deceased mortgagee is covered by sec-
tion 28.
The case of the lunacy of either of these is dealt with by
the Lunacy Act, 1890 (53 Vict. c. 5), section 135.
"Without having entered into Possession." — The section
does not apply where the mortgagee has gone into possession.
The importance of this restriction, however, is greatly diminished,
if not entirely abolished, if the decision in the case of re SMtter's
Mortgage Trusts, 4 W.E. 791, is good law. In that case it was held
that a vesting order could be made under section 9 of the Trustee
Act, 1850, vesting in the executors mortgage estates which had
devolved on the heir of an intestate mortgagee, although the
mortgagee had shortly before her death gone into possession.
If this case was rightly decided, it would appear that the
present section is altogether unnecessary (and see note,
supra), for in every case provided for by the present section
the Court could hold, as in the case cited, that the heir, devisee,
or personal representative, was a trustee within the meaning of
section 9 of the Trustee Act, 1850, and section 26 of the present
Act. Be SJcitler's Mortgage Trust has never been overruled,
116 Trustee Act, 1893.
Sect. 29. thongh some doubt as to its authority seems to have been
suggested, see re Lea's Trust, 6 W.R. 482.
"Reconveyance of the Land." — This phrase appears to
suggest that only a reconveyance to a mortgagor, and not a
transfer to another mortgagee, is contemplated by the section.
It is conceived, however, that the extended meaning given by
the Court to this word in the repealed section will also be given
to it in the present Act. The narrower meaning, excluding
"transfer," was given to the word by Turner, V.C., in re
Meyrich's Estate, 9 Hare 116, but this decision was overruled
by the Lords Justices in re Boden's Trust, 1 De G.M. & Gr.
57. The later decision has been followed in re Lea's Trust,
6 W.E. 482. In these cases the transfer was from the heir
to the executors or administrator.
" Where an Heir or Personal Representative." — The words
" or personal representative " did not occur in the repealed
section 19 of the Trustee Act, 1850. When that Act was passed,
mortgage estates in freehold land, on the death of the mortgagee,
devolved, as other real estate, upon his heir or devisee. Now,
however, in accordance with section 30 of the Conveyancing
and Law of Property Act, 1881 (44 & 45 Vict. c. 41), as modi-
fied by section 45 of the Copyhold Act, 1887 (50 & 51 Vict.
c. 78), and section 88 of the Copyhold Act, 1894 (57 & 58 Vict.
c. 46), while copyhold and customary land still devolves
upon the devisee or heir, mortgage freeholds pass, on the death
of the mortgagee to his personal representative. It is probably
due to this alteration of the law that the reference to the per-
sonal representative has been introduced in the present section.
No provision for the case of mortgagees of leaseholds was made
by section 19 of the Trustee Act, 1850, probably because it was
thought that in the case of a security which would vest in
personal representatives no difficulty could arise. By parity of
reasoning it would seem that the case of freeholds since 1881
need not have been provided for. The provision which has,
however, been made, would probably apply to a mortgagee of
leaseholds. The provision would seem to be of little practical
value, for if, e.g., the personal representative is abroad or cannot
be found, there would be no one entitled to receive the money.
In re Cook's Mortgage (1895) 1 Ch. 700, where an order was
made under this section, the money had been paid to the
mortgagee before his death, so that the case was one of a
deceased trustee, and it is submitted a vesting order could have
been made under section 26, subsection (v.).
"If a Proper Deed for conveying the Land has been
tendered." — It is not clear why the somewhat burdensome
requirements of the corresponding portion of the repealed
section should have been retained in the present section. It
would have been a simple matter to have adopted the language
of subsection 6 of section 26, which deals with the analogous
case of a trustee who refuses or neglects to convey. For an
Trustee Act, 1893. 117
example of the difficulty caused in the case of copyholds by the Sect. 29.
language of the present section, see Rowley v. Adams, 14 Beav.
130, a decision on section 17 of the Trustee Act, 1850, the
language of which was similar to that of the present section.
Section 17 was repealed and re-enacted in simpler language by
section 2 of the Trustee Extension Act, 1852, the language of
which is similar to that of section 26, subsection (vi.) of the
present Act.
"Where there is no Heir." — In this case the petition or ■
summons must be served on the Crown. Be Minohin, 2
W.E. 179.
" Where it is uncertain who is his Personal Representative."
— Such a case has arisen where the validity of a will appointing I
executors was being disputed in the Probate Division. Be *
Cooh's Mortgage (1895) 1 Ch. 700, in which case a vesting order
was made under this section. See supra, p. 116.
Practice. — See post, p. 193.
Section 30. — Where any court gives a judg- Sect. 30.
ment or makes an order directing the sale or
mortgage of any land, every person who is entitled ^„^g'™uentfai
to or possessed of the land, or entitled to a con- on judgment
tingent right therein [as heir, or under the will oi^^^^^^l°l ^^
a deceased person, for payment of whose debts the land.
judgment was given or order made], and is a party
to the action or proceeding in which the judgment or
order is given or made or is otherwise bound by the
judgment or order, shall be deemed to be so entitled
or possessed, as the case may be, as a trustee within
the meaning of this Act ; and the High Court may,
if it thinks expedient, make an order vesting the
land or any part thereof for such estate as that
Court thinks fit in the purchaser or mortgagee or in
any other person.
This section replaces section 29 of the Trustee Act, 1850
(13 & 14 Vict. c. 60), and section 1 of the Trustee Extension ,
Act, 1852 (15 & 16 Vict. c. 65), which sections are repealed by
the present Act. See section 51, and Schedule, infra.
The words within [ ] were repealed by section 1 of the
Trustee Act, 1893, Amendment Act, 1894 (57 & 58 Vict. c. 10).
See p. 175, infra.
The provisions of section 14 of the Judicature Act, 1884
(47 & 48 Vict. c. 61), should be compared with the present
section. They are set out in the note to section 31, p. 123,
infra.
118 Tkustee Act, 1893.
Sect. 30. The General Effect of Sections 30 and 31 of the present Act
must he discussed as a whole, and involves the consideration of
the sections which they replace.
The early sections of the Trustee Act, 1850, gave power to
the Court by order, on petition, to vest in other persons estates
and interests in land previously vested in mortgagees or in
persons who were trustees within the meaning of the Act, and
section 16 of the same Act extended the power to the case of
unborn persons who, upon coming into existence, would become
trustees of land.
The object of sections 29 and 30 of the Act appears to have
been to enlarge the class of persons to be considered as trustees
within the meaning of the Act for the purpose of such vesting
orders.
Section 29 of the Trustee Act, 1850, was as follows : " And
be it enacted that when a decree shall have been made by any
Court of Equity directing the sale of any lands for the payment
of tKe debts of a deceased person, every person seised or possessed
of such lands or entitled to a contingent right therein as heir
t)r under the will of such deceased debtor, shall be deemed to be
so seised or possessed or entitled, as the case may be, upon a
trust within the meaning of this Act; and the Court of
Chancery is hereby empowered to make an order wholly dis-
charging the contingent right under the will of such deceased
debtor of any unborn person." It will be observed that this
section only deals with the single case of a decree having been
made directing the sale of land for the payment of debts.
Section 30 of the Trustee Act, 1850, contained provisions
virtually identical with those of section 31 of the present Act,
and had therefore a much wider operation than section 29, as
it embraced all cases in which a decree had been made for the
conveyance of lands. Both sections, however, were limited to
cases in which a decree has been made, in this respect following
the lines of sections 16 to 18 of Lord St. Leonards 's Trustee
Act, 1830 (11 Geo. 4. and 1 "Will. 4. c. 60), which sections dealt
with conveyance of property vested in constructive trustees.
It appears to have been very early discovered that the
restriction of section 29 to sales for the payment of debts (thus
excluding, e.ff., a sale for payment of costs, Weston v. Filer, 5
De G. & Sm. 608), was inconvenient, and section 1 of the
Trustee Extension Act, 1852 (15 & 16 Vict. c. 55), enacted as
follows : " When any decree or order shall have been made by
any Court of Equity directing the sale of any lands for any
purpose whatever, every person seised or possessed of such land
or entitled to a contingent right therein being a party to the
suit or proceeding in which such decree or order shall have
been made and bound thereby or being otherwise bound by such
decree or order, shall be deemed to be so seised or possessed or
entitled (as the case may be) upon a trust within the meaning
of the Trustee Act, 1850 ; and in every such case it shall be
lawful for the Court of Chancery, if the said Court shall think
it expedient for the purpose of carrying such sale into efEect, to
Trustee Act, 1893, 119
make an order vesting such lands or any part tliereof for such Sect. 30.
estate as the Court shall think fit either in any purchaser or in
such other person as the Court shall direct; and every such
order shall have the same efEect as if such person so seised or
possessed or entitled had been free from all disahility and had
duly executed all proper conveyances and assignments of such
lands for such estate." It will be observed that this section
applies not only to sales for any purpose, but also to sales
directed by orders as distinct from decrees.
The result of these three sections therefore appears to have
been that the class of persons to be considered as trustees
■within the meaning of the Acts for the purpose of^ vesting
orders was declared to contain, (1) the heirs and devisees of
a debtor in cases in which a decree has been made for sale
of the lands for the purpose of payment of debts, (2) parties to
a suit (and persons claiming under them) in which a decree
has been made for the conveyance of lands, and (3) persons
entitled to land being parties to a suit or proceeding (and other
persons bound thereby) in which a decree or order shall have
been made directing the sale of lands for any purpose,
whatever.
Section 30 of the Trustee Act, 1893, as originally enacted,
re-enacted the provisions of section 29 of the Trustee Act, 1860,
only enlarging its scope by the inclusion of mortgages as well as
sales, and sales directed by orders as well as by decrees.
Section 1 of the Trustee Act, 1893, Amendment Act, 1894, by
repealing the words "as heir, or under the will of a deceased
person, for payment of whose debts the judgment was given
or order made," in effect enlarged the scope of section 30 so as
to include all the cases provided for by section 1 of the Trustee
Extension Act, 1852.
Section 31 of the Trustee Act, 1893, re-enacts, with merely
verbal amendments, section 30 of the Trustee Act, 1850,
replacing the word "decree " by the word "judgment."
It seems, at least, open to doubt whether the effect of
sections 30 and 31 of the present Act, and of the three sections
which they replace, is to enlarge (as appears to have been
intended) the power of the Court to make vesting orders, by
increasing the class of persons to be considered trustees within
the meaning of the Act. It would appear to be at least
arguable that, had none of these sections been passed, the Courts
of Equity would, in accordance with the general principles of
Equity, have regarded as constructive trustees, and thus trustees
within the meaning of the Acts, all those persons who under
those sections the Court may declare to be trustees. The
corresponding sections of the Act of 1830 were of service
because that Act contained no such definition of trustee, but it
is suggested that the operation of the Trustee Act, 1850, and
the Trustee Act, 1893 (which have such definition), would
have been wider had the sections in question been omitted.
Thus, in re Angela, 5 De G. & Sm. 278, a case in which the
above-mentioned sections (which deal only with land) do not
120 Trustee Act, 1893.
Sect. 30. apply, a mortgagor who had authorised a sale of stocks and
shares was regarded as a trustee for the purchaser, and the
Court, upon petition, vested the shares in the purchaser. The
question arose as to land in re Carpenter, Kay 418, in which
case, upon the death of a vendor intestate after the approval of
a draft surrender, but before execution, it was argued that his
infant heir was a trustee within the meaning of the Trustee
Act, 1850, and that the Court would make a vesting order as to
the land, the case of re Angela being relied upon. Page Wood,
V.C. (afterwards Lord Hatherley), however, referred to section
29 of the Trustee Act, 1850, and section 1 of the Trustee
Extension Act, 1852, " as showing that in cases of real estate
the constructive trust must first have been declared by a decree
of the Court ; and said that the reason of that was that there
might always be a question whether the contract could be
enforced by a suit for specific performance, and it would be
extremely inconvenient to declare the vendor to be a trustee
upon a petition on which that point could not be decided," In
the case of re Colling, 32 Ch. D. 333, it was decided that Ann
Colling, a person of unsound mind, whose freeholds had been
sold by the guardians of the poor under the Lunacy Regulation
Act, 1862, and who had died after the title was proved, but
before the conveyance was executed, could not be held a trustee
within the meaning of the Trnstee Act, 1850. Fry, L.J., referr-
ing to the case of re Carpenter, in his judgment said : " I think
that Lord Hatherley laid down the correct principle. In section
29 the obtaining a decree for sale for the payment of the debts
of a deceased person is treated as a condition precedent. So in
section 30 a decree for specific performance or conveyance is
made a condition precedent. The first section of the Act of
1852 provides for the case where an order has been made for
the sale of any lands for any purpose whatever. The Legis-
lature appear to me to have meant that in cases of contract the
Act in general should only apply in favour of a purchaser where
there has been a decree or order on which his right is founded ;
and without saying that in no case where there is no decree or
order can a vendor be held a trustee, I think that we cannot
in the present case treat Ann Colling as having become a
trustee of the property."
The exceptional case in which it appears that a vendor
can, without a decree or order, be held a trustee, is that in
j which the contract for sale has been executed by the
(payment of purchase-money. In re Cuming, 5 Ch. 72, Giffiard,
L.J., in his judgment said: "I think that the distinction
drawn between an executed and an unexecuted contract is
sound. Where there is only a contract for sale a suit is
necessary to declare the vendor a trustee ; but where the'
contract has been executed by payment of the purchase-money
and a formal covenant to surrender, I think that no suit is
necessary." So also in the case of a mortgage of copyholds, by
covenant to surrender, the mortgagor was held, on receipt of the
mortgage moneys, to be a trustee for the mortgagee, re Crowe's
Trustee Act, 1893. 121
Mortgage, 13 Eq. 26. The case of re Gollingwood's Trust, 6 W.E. Sect. 30.
536, is not an exception to the rule, as it was decided on the
ground that the trust was express and not constructive. Other
cases illustrating the rule are re Weeding's Estate, 4 Jur. N.S.
707, in which an option to purchase contained in a lease was
exercised after the death of the lessor, and it was held that an
infant devisee could not be held to be a trustee until there
should have been a decree ; re Propert, 22 L.J. Chancery 948,
in which it was held that a covenant to assign the last day of
the term does not make the mortgagor a trustee; Gust v.
Middleton, 9 "W.E. 242, a case of a contract to grant a building
lease ; re Burt, 9 Hare 289, a case of partnership ; re Martin
34 CD. 618, a case of a purchase in the name of a third
person. The case of re Pagani (1892) 1 Ch. 236, may be
usefully referred to. In that a case a vendor sold a lease and
business, part of the purchase-money being payable only at the
end of five years. Before the expiration of that time the
vendor became a lunatic. It was decided that he was a trustee
within section 135 of the Lunacy Act, 1890, which Act contains
a definition of trustee similar to that in the Trustee Act, 1850,
and the Trustee Act, 1893. This decision may be explained on
the grounds that, as the Lunacy Act, 1890, contains no provisions
similar to sections 29 and 30 of the Trustee Act, 1850, the rule
that in cases of real estate a decree is necessary before a vesting
order can be made of land of a constructive trustee does not ,
apply to cases under the Lunacy Act. The case of re Beaufort's '
Will (1898) W.N. 148 (in which a vesting order was made, j
without a judgment, of the interest of an infant heir in copy- .
holds, agreed to be sold by a vendor who died before the title
was approved) appears to have been decided without reference '
to the authorities.
For the general principle that a vendor who has contracted
to sell, and whose title has been accepted, is a constructive
trastee for tlie purchaser, see Lysaght v. Edwards, 2 Ch. D. 499,
in which the question is elaborately discussed by Jessel, M.E,.
Section 4 of the Conveyancing and Law of Property Act,
1881, enacts that where at the death of any person there is
subsisting a contract enforceable against his heir or devisee for
the sale of the fee simple or other freehold interest descendible
to his heirs general, his personal representatives shall have
power to convey.
It must be noted that for " decree or order " in section 1 of * ^
the Trustee Extension Act, 1852, is substituted "judgment or '*
order " in section 30 of the present Act, and for "decree" in
section 30 of the Trustee Act, 1850, is substituted " judgment"
in section 31 of the present Act. There is no definition of the
word " judgment " in the present Act, nor in the Interpretation
Act, 1889 (52 & 53 Vict. c. 63). As to the use of the word in
the Judicature Acts and Rules of the Supreme Court, see
Judicature Act, 1873 (36 & 37 Vict. c. 66), section 100, and
section 19 and notes thereon in the Annual Practice, and cases
there referred to. But no general definition applicable to other
122 Trustee Act, 1893.
Sect. 30. Acts is there contained, exparte Ghinery, 12 Q.B.D. at p. 345.
It is submitted, therefore, that the word " judgment " in sections
30 and 31 applies only to judgments of the nature of " decrees "
before the Judicature Acts, and that the substitution of " judg-
ment " for " decree " does not extend the operations of these
sections.
" Gives a Judgment or makes an Order." — That a judgment
or order is a condition precedent, and as to meaning of j udgment,
see note above, " General effect of sections 30 and 31."
" Sale or Mortgage."— Section 29 of Trustee Act, 1850, and
section 1 of Trustee Extension Act, 1852, applied only to sales.
The inclusion of mortgage is new. As to a sale directed in a
partitionaction, see note to section 31, infra, p. 124, " Sale in lieu
of partition." Where the Court has decreed a sale in a fore-
closure action, a vesting order as to the equity of redemption
of the infant mortgagor was refused as being unnecessary, as all
equitable estates were bound by the order for sale, re Williams,
5 De G. & Sm. 515, a case decided, before the Act of 1852 came
into force, under section 7 of the Trustee Act, 1850, but which
applies in principle to cases under the present section.
" Every Person." — It was decided in Beckett v. Sutton, 19
Ch. D. 646, that section 1 of the Trustee Extension Act, 1852,
was not limited (as suggested by the last words of that section)
to persons under disability, and it would seem clear that the
present section is not so limited. At first sight it would appear
that in this respect the section, instead of being restrictive in
effect (as suggested in the note, " General effect of sections
30 and 31," above), gives important powers to the Court, viz. ;
to vest in other persons interests of trustees who are under no ,■
disability. But this can in a proper case be done apart from
this section by first appointing a new trustee and then vesting.
Shepherd v. Ohurchill, 25 B. 21 ; Lees v. Coulton, 20 Eq. 20.
That these words include a person of unsound mind not so
found, see Herring v. Clarh, 4 Ch. 167 ; and a lunatic so found,
see re Stamper, 46 L.T. 372.
" Otherwise bound by the Judgment or Order." — That
unborn persons are, apart from this Act, bound by a judgment,
see Basnett v. Moaion, 20 Bq. 182, and they would therefore
appear to be within the section as being " entitled to a con-
» tingent right " in the land, and " bound by the judgment or
order." Section 29 of the Trustee Act, 1860, contained a
specific reference to unborn persons which is omitted from the
present section. Cf. Wake v. Wake, 17 Jur. 645. As to the
general provisions for vesting the contingent rights of unborn
persona, see section 27, supra.
" Make an Order Vesting, etc." — This may be an order in
the action without a separate petition, Wood v. Beetlestone,
1 K. & J. 213 ; and this is presumably still the law, though
section 43 of the Trustee Act, 1850, has been repealed without
Trustee Act, 1893. 123
re-enactment. Whether made in an action or not, the applica- Sect. 30.
tion may be by summons, O. 55, 13a (c) of Rules of Supreme ■
Court. For form of summons, see Daniell's Chancery Forms,
2109 ; and for forms of orders, see Seton, p. 1268. Generally as
to practice, see post, p. 191.
As to the persons who may make the application, see
section 36, infra.
For definitions of " mortgage," " land," " possessed," " con-
tingent right," and " trustee," see section 50, infra.
Section 31. — Where a judgment is given for Sect. 31,'
the specific performance of a contract concerning * —
any land, or for the partition, or sale in lieu of "^^^*™s order
■' . . ' 1/.11 n consequential
partition, or exchange, or any land, or generally on judgment
where any judgment is given for the conveyance pg^gP^j^^gg
of any land either in cases arising out of the etc.
doctrine of election or otherwise, the High Court
may declare that any of the parties to the action are
trustees of the land or any part thereof within the
meaning of this Act, or may declare that the interests
of unborn persons who might claim under any party
to the action, or under the will or voluntary settle-
ment of any person deceased who was during his
lifetime a party to the contract or transactions con-
cerning which the judgment is given, are the interests
of persons who, on coming into existence, would be
trustees within the meaning of this Act, and there-
upon the High Court may make a vesting order
relating to the rights of those persons, born and
unborn, as if they had been trustees.
This section is a re-enactment of section 30 of the Trustee
Act, 1850 (13 & 14 Vict. c. 60), as extended by section 7 of the
Pa.rtition Act, 1868 (31 & 32 Vict. o. 40), to "cases where in
suits for partition the Court directs a sale instead of a division
of the property." Section 30 of the Trustee Act, 1850, and
section 7 of the Partition Act, 1868, are repealed by the present
Act. See section 61, and Schedule, infra.
For the general operation of section, 30 and 31, see note to
section 30, supra, p. 118.
The provisions of section 14 of the Judicature Act, 1884
(47 & 48 Vict. c. 61), should be compared with the present section,
and are as follows : " Where any person neglects or refuses
to comply with a judgment or order directing him to execute
any conveyance, contract, or other document, or to indorse „
any negotiable instrument, the Court may, on such terms and
124 Trustee Act, 1893.
Sect. 31. conditions (if any) as may be just, order that such conveyance,
contract, or other docnment shall be executed, or that such
negotiable instrument shall be indorsed by such person as the
Court may nominate for that purpose ; and in such case the
conveyance, contract, document, or instrument so executed or
indorsed shall operate and be for all purposes available as if it
had been executed or indorsed by the person originally directed
to execute or indorse it."
" Where a Judgment is given." — That a judgment should
have been given is a condition precedent to the operation of
this section. See the note to section 30 last referred to.
" Specific Performance of a Contract concerning any Land."
— A contract to take a lease is not witbin the section, Grace v.
Baynton (1877) W.N. 79, but a contract to grant a lease is
within the section, Hall v. Hale, 51 L.T. N.S. 226 ; Gowper
V. Harmer, 57 L.J. Oh. 460. In exparte Mornmgton, 4 De
G.M. & G. 537, in a specific performance suit, section 30 of
the Trustee Act, 1850, was held to apply to the exercise of a
power of jointuring. For examples of the application of
section 30 of the Trustee Act, 1850, to contracts for the sale of
land, see note to section 30 (^supra, p. 118), " General efEect
of sections 30 and 31."
" Tor the Partition." — For cases in which vesting orders
have been made in partition actions, see Boiora v. Wright,
4 De G. & S. 265 ; Stanley v. Wrigley, 3 Sm. & G. 18 ; Shepherd
V. Churchill, 25 Beav. 21.
" Sale in Lieu of Partition." — Section 7 of the Partition Act,
1868, provided that "section 30 of the Trustee Act, 1850, shall
extend and apply to cases where in suits for partition the
Court directs a sale instead of a division of the property." Tor
cases in which vesting orders have been made upon a decree
for sale in a partition action, see Basnett v. Moxon, 20 Bq. 182 ;
Lees V. Goulton, 20 Eq. 20 ; Bechett v. Sutton, 19 Ch. D. 646 ;
Caswell V. Sheeii (1893) W.N. 187 ; 69 L.T. N.S. 854. In the
case of Beckett v. Sutton, Chitty, J., held that in spite of the
fact that section 7 of the Partition Act, 1868, refers expressly
to section 30 of the Trustee Act, 1850, and omits any reference
to section 29 of that Act, the last-mentioned section applies to
cases in which a sale is directed in a partition action. It will
appear, therefore, that sections 30 and 31 of the present Act
both apply to such a case.
" Conveyance of any Land either in Cases arising out of the
Doctrine of Election or otherwise." — For a case of election, see
re Montagu, Faher v. Montagu (1896) 1 Ch. 649, where a
vesting order was made of the interest of an infant tenant in
tail ; and of. section 18 of Lord St. Leonards's Trustee Act, 1830
(11 Geo. 4. and 1 Will. 4. c. 60).
For instances in foreclosure actions, see Lechmere v. Clamp,
31 Beav. 578 ; Foster v. Parker, 8 Ch. D. 147 ; Mellor v. Porter,
25 Ch. D. 158.
Trustee Act, 1893. 125
"Interests of Unborn Persons." — For the meaning and Sect. 31.
effect of this phrase, see the judp;ment of Jessel, M.E., in
Basnett v. Moxon, 20 Bq. 182 ; and see also Lees v. Goulton,
20 Eq. 20 ; Hargreaves v. Wright, 1 W.R. 108.
"As if they had been Trustees." — It must be borne in mind
that the section does not give power to the Court to make a
vesting order in every case in which a decree for sale or con-
veyance has been made, bat only in those cases in which, were
the person whose interest is being dealt with a trustee, an order
could be made, i.e. those cases enumerated in section 26 of the
present Act. Thus in Shepherd v. Churchill, 25 Beav. 21,
where a vesting order was desired of the various interests of
numerous persons, the object was obtained by declaring the
persons trustees and appointing a new trustee in their place, and
then making a vesting order as upon the appointment of new
trustees. See the similar case of Lees v. Goulton, 20 Eq. 20, in
which it was held that the appointment of a new trustee and
consequent vesting order ought to be the subject of subsequent
application, and not be made by the decree. Of. also Caswell v.
Sheen, 69 L.T. N.S. 854.
Practice. — See post, p. 191.
As to the person who may make the application, see
section 36, infra; and as to effect of vesting order, see
section 32.
For definitions of "land," "conveyance," "trustee," and
" rights," see section 50, infra.
Section 32. — A vesting order under any of the Sect. 32.
foregoing provisions shall in the case of a vesting
order consequential on the appointment of a new ^g^^^g°Q^.jgy
trustee, have the same effect as if the persons who
before the appointment were the trustees (if any)
had duly executed all proper conveyances of the
land for such estate as the High Court directs, or
if there is no such person, or no such person of full
capacity, then as if such person had existed and been
of full capacity and had duly executed all proper
conveyances of the land for such estate as the Court
directs, and shall in every other case have the same
effect as if the trustee or other person or description
or class of persons to whose rights or supposed rights
the said provisions respectively relate had been an
ascertained and existing person of full capacity, and
had executed a conveyance or release to the effect
intended by the order.
126 Trustee Act, 1893.
Sect. 32. This section consolidates provisions to the same effect
contained in sections 7 to 15, 19, and 34 of the Trustee Act, 1850
(13 & 14 Vict. c. 60), and sections 1, 2, and 8 of the Trustee
Extension Act, 1852 (15 & 16 Vict. c. 55).
It deals first with the case of vesting orders made on the
appointment of new trustees (section 26 (i)), and as to these
provides separately for the cases of the former trustees being
(1) existing and of full capacity, and (2) non-existent, or not
of full capacity. In the first case the operation of the order is
as though those persons had duly executed all proper convey-
ances, and in the second case as if such persons had existed and
been of full capacity, and had duly executed all proper
conveyances.
As to vesting orders made otherwise than on the appoint-
ment of new trustees, viz. under section 26, (ii.) to (vi.), and
sections 27 to 31, the section does not deal separately with the
case of persons of full capacity and those not of full capacity,
but provides generally that the operation of the order is to be
as if the person to whose rights the said sections respectively
relate had been an ascertained and existing person of full
capacity, and had executed a conveyance to the effect intended
by the order. That this does not have the effect of restricting
the operation of such vesting orders to the case of persons under
disability, see Beckett v. Sutton, 19 Ch. D. 646, a decision on
similar language in section 1 of the Trustee Extension Act,
1862 (15 & 16 Vict. c. 55).
That the effect of a vesting order dealing with the rights of
an infant tenant in tail is to bar the estate tail and remainders
over, see re Montagto, Faher v. Montagu (1896) 1 Ch. 549.
It is submitted that a vesting order dealing with the rights
of a tenant for life could not vest the fee simple although under
the Settled Land Acts and other statutes a tenant for life can
deal with the fee simple. Cf. Wood v. Beetlestone, 1 K. & J.
213.
As to Copyholds. — The section applies to vesting orders as
to copyhold and customary land by virtue of the definitions of
the word " land" in the Interpretation Act, 1889 (52 & 53 Vict,
c. 63) , and section 50 of the present Act. The effect, therefore, of
a vesting order as to copyholds is as though the former trustee,
or person whose rights are thereby dealt with, had made a
surrender. Admittance is still necessary, except in the case
provided for by subsection 1 of section 34 of the Act. A
mandamus can be obtained to enforce admittance, re Lane
and Irving, 12 W.R. 710.
Since a vesting declaration under section 12 cannot be
made as to copyholds, and since section 30 of the Conveyancing
and Law of Property Act, 1881, does not apply to the devolu-
tion of copyholds (see note, "Is an infant," supra, p. 107),
vesting orders as to copyholds must frequently be required.
As to the general effect of vesting orders as to copyhold, see
Bristow V. Booth, L.R. 5 C.P. 80. As to the fines payable, see
Trustee Act, 1893. 127
Bristow V. Booth; Paterson v. Faterson, 2 Eq. 31; and cf. Hall Sect. 32.
V. Bromley, 35 CD. 642.
The consent of the lord of the manoi' is not necessary
(1 Jnr. N.S. 418), and he is not a necessary party to the ap-
plication, Faterson v. Faterson, 2 Eq. 31.
Tor forms of orders vesting copyholds, see Seton, pp. 1236,
1237, and 1251.
Farther as to vesting orders as to copyholds, see section 34,
infra.
For definitions of "trnstee," "conveyance," land," and
"rights," see section 50, infra.
Section 33. — In all cases where a vesting order Sect. 33.
can be made under any of the foregoing provisions,
the Hiffh Court may, if it is more convenient, ^o^^r to
• , ■ . i' 1 1 1 1 appoint
appoint a person to convey the land or release the person to
contingent right, and a conveyance or release by '"'^^^y-
that person in conformity with the order shall have
the same effect as an order under the appropriate
provision.
This section re-enacts, with merely verbal alterations, section
20 of the Trustee Act, 1850 (13 & 14 Vict. c. 60), which section
is repealed by the present Act. See section 51, and Schedule,
infra. Before the Act of 1850 there was no provision for the
making of vesting orders, bat under the provisions of Lord St.
Leonardo's Trustee Act, 1830 (11 Geo. 4. & 1 Will. 4. c. 60), the
Court could appoint a person to convey.
For a similar provision see section 14 of the Judicature Act,
1884 (47 & 48 Vict. c. 61), set out in the note to section Bl,
siipra, p. 123.
The procedure authorised by this section wUl probably be
found convenient in the case of a sale in lots, as it avoids the
necessity of a large number of vesting orders, while at the
same time it enables each pnrchaser to have his own deed of
conveyance. Cf . Hancox v. Spittle, 3 Sm. & G. 478.
For forms of orders, see Seton, 6th edit., pp. 1261 and
following.
As to form of conveyance. " The conveyance should contain
a recital showing that it is made in obedience to the order of
the Court, and should be executed by the person appointed to
convey in his own name" (LewLn, 10th edit., p. 810). It has
been held that an express covenant for quiet enjoyment cannot be
given by a person appointed to grant a lease, Cowper v. Manner,
57 L.J. Ch. 460, but it is suggested that the correctness of this
decision is not beyond doubt, seeing that the implied covenant
is more onerous than the usual express covenant ; and cf. re Bay
(1896) 1 Ch. 468.
As to the effect of a conveyance on behalf of a tenant in
128 Trustee Act, 1893.
Sect. 33. tail, see Caswell y. Sheen, 69 L.T. N.S. 854; re Montagu, Faher v.
— Montagu (1896) 1 Oh. 549 ; and on behalf of a tenant for life,
Wood V. Beetlestone, supra, p. 126.
For definitions of "convey," "conveyance," "land," and
" contingent right," see section 50, infra.
Sect. 34. Section 34. — (1.) Where an order vesting copy-
• hold land in any person is made under this Act with
vesting°order *^® Consent of the lord or lady of the manor, the
as to copy- land shall vest accordingly without surrender or
admittance.
(2.) "Where an order is made under this Act
appointing any person to convey any copyhold land,
that person shall execute and do all assurances and
things for completing the assurance of the land ;
and the lord and lady of the manor and every other
person shall, subject to the customs of the manor
and the usual payments, be bound to make admit-
tance to the land and to do all other acts for
completing the assurance thereof, as if the persons
in whose place an appointment is made were free
from disability and had executed and done those
assurances and things.
This section re-enacts, with verbal amendments, section 28
of the Trustee Act, 1850 (13 & 14 Vict. c. 60), which section
is repealed by the present Act. See section 51, and Schedule,
mfra.
The marginal note to the section is somewhat misleading,
the general effect of a vesting order as to copyholds (as other
land) being dealt with by section 32. By virtue of the definition
of " land " in section 50, the sections of the Act which enable
the Court to make vesting orders of land apply to copyhold
and customary land. Accordingly by virtue of section 32,
where a vesting order is made as to copyholds, no surrender
is necessary, for " conveyance " in that section includes surrender
of copyholds (cf. section 50). The present section is therefore
only ancillary to the sections above referred to. Cf. Bristow v.
Booth, L.R. 5 C.P. 80; and see note "As to copyholds," p. 126,
supra.
" With the Consent." — The consent may be given either in
Court or by writing properly verified. The latter is the proper
course to be adopted, Ayles v. Cox, 17 B. 584. For form of
consent and of affidavit verifying the signature thereto, see
DanieU's Chancery Forms, pp. 1080, 1081 ; and see Daniell's
Chancery Practice, p. 1782.
Trustee Act, 1893. 129
For form of order vesting copyholds with the consent of the Sect. 34.
lord of the manor, see Seton, p. 1236.
"Without Surrender or Admittance." — The first subsection
dispenses with the necessity for admittance in cases in which
the consent of the lord of the manor has been obtained to the
making of the vesting order. Without such consent the Court
has no power to dispense with the necessity for admittance.
The second subsection provides for admittance in the case
of the appointment, under the provisions of section 33, of a
person to surrender copyholds. The necessity for this sub-
section is not evident, as it would appear that the combined
operations of sections 32 and 33 would effect all that is desired.
" Subject to the Customs of the Manor and the Usual Pay-
ments." — See Bristow v. Booth, L.R. 5 C.P. 80 ; and note, " As
to copyholds," to section 32, supra, p. 126.
For an order appointing a person to assure copyholds, see re
Heys's Will, 9 Hare 221.
For definitions of " land " and " convey," see section 50,
infra.
Section 35. — (l.) In any of the following cases, Sect. 35.
namely : — .^~^r
(i.) WTiere the High Court appoints or has ordLTfs to
appointed a new trustee ; and ^^"^ ^?^
(ii.) "Where a trustee entitled alone or jointly action.
with another person to stock or to a
chose in action —
(a) is an infant, or
(b) is out of the jurisdiction of the
High Court, or
(c) cannot be found ; or
(d) neglects or refuses to transfer stock
or receive the dividends or in-
come thereof, or to sue for or
recover a chose in action, accord-
ing to the direction of the person
absolutely entitled thereto for
twenty-eight days next after a
request in writing has been made
to him by the person so entitled,
or
(e) neglects or refuses to transfer stock
or receive the dividends or in-
come thereof, or to sue for or
K
130 Trustee Act, 18,93;
Sect. 35. recover a chose in action for
twenty-eight days next after an
order of the High Court for that
purpose has been served on
him ; or
(iii.) Where it is uncertain whether a trustee
entitled alone or jointly with another
person to stock or to a chose in action is
alive or dead,
the High Court may make an order vesting the right
to transfer or call for a transfer of stock, or to receive
the dividends or income thereof, or to sue for or
recover a chose in action, in any such person as the
Court may appoint :
Provided that —
(a) Where the order is consequential on the
appointment by the Court of a new trustee,
the right shall be vested in the persons
who, on the appointment, are the trustees ;
and
{b) Where the person whose right is dealt with
by the order was entitled jointly with
another person, the right shall be vested
in that last-mentioned person either alone
or jointly with any other person whom
the Court may appoint.
(2.) In all cases where a vesting order can be
made under this section, the Court may, if it is more
convenient, appoint some proper person to make or
join in making the transfer.
(3.) The person in whom the right to transfer or
call for the transfer of any stock is vested by an
order of the Court under this Act, may transfer the
stock to himself or any other person, according to
the order, and the Banks of England and Ireland
and all other companies shall obey every order
under this section according to its tenor.
(4.) After notice in writing of an order under
this section it shall not be lawful for the Bank of
England or of Ireland or any other company to
transfer any stock to which the order relates or to
Trustee Act, 1893. 131
pay any dividends thereon except in accordance Sect. 35.
with the order.
(5.) The High Court may make declarations and
give directions concerning the manner in which the
right to any stock or chose in action vested under
the provisions of this Act is to be exercised.
(6.) The provisions of this Act as to vesting
orders shall apply to shares in ships registered under
the Acts relating to merchant shipping as if they
were stock.
Subsection (i.). — TMs subsection replaces section 35 of the
Trustee Act, 1850 (13 & 14 Vict. c. 60), which section is repealed
by the present Act. See section 51, and Schedule, infra.
In spite of the general language of the subsection, no juris-
diction is thereby given, on an appointment of a new trustee,
to make a vesting order afBecting property vested in a lunatic,
unless such lunatic is an infant or out of the jurisdiction within
the meaning of subsection (ii.), re M. (1899) 1 Oh. 79. See
note to subsection (i.) of section 26, supra, p. 104.
Grenerally as to this subsection, see notes to subsection (i.)
of section 2Q, supra, p. 104 (the corresponding provision dealing
with vesting orders as to land).
The Court will not, for the purpose of making this sub-
section available, reappoint the existing trustees, re Dewhirst's
Trusts, 33 CD. 416, overruling re Dalgleish's Settlement, 4 CD.
143, and re Crowes Trusts, 14 CD. 610. The Court will, how-
ever, appoint a new trustee for the purpose of making a vesting
order under this section, re Stocken's Settlement (1893) W.N.
203.
In a case in which trust funds had been invested on un-
authorised investments, Romilly, M.R., appointed a new trustee
in place of a trustee who had gone abroad, but refused to make
any order respecting the transfer of the investments, lest by
doing so he should sanction a breach of trust, re Harrison,
22 L.J. Ch. 69 ; but in re Peacock, 14 CD. 212, another case in
which trust funds had been invested in unauthorised invest-
ments, the Court of Appeal made an order for appointment
of new trustees, with the right to call for the transfer of
the funds to themselves or to any purchaser or purchasers, the
trustees undertaking to hold the proceeds on the trusts of the
settlement.
Subsection (ii.). — This subsection deals with the cases for-
merly provided for by sections 22, 23, 24, and 25 of the Trustee
Act, 1850 (13 & 14 Vict. c. 60), and sections 2, 8, 4 and 5 of
the Trustee Extension Act, 1852 (15 & 16 Vict. o. 55), which
sections are repealed by the present Act. See section 51, and
Schedule, infra.
<. *
132 Trustee Act, 1893.
Sect. 35. In the lease of this subsection, as in the case of subsections
(ii.) to (vi.) of section 26 (containing the corresponding pro-
visions as to land), it seems a matter of regret that the cases of
bankruptcy, felony, unfitness, and unwillingness to act were not
dealt with, so as to enable the Court to vest the right to call for
transfer of the stock in the other trustees without the necessity
of appointing a new trustee. See note to subsection (ii.) of
section 26, swpra, p. 106. In one respect the" present section is
more defective than section 26, as the case of there being no
personal representative of a last surviving trastee, or of its
being uncertain who is such personal representative, provided for
in the case of land by section 26, subsection (v.), is not dealt
with by the present section. See re Ellis, 24 B. 426 ; re Herbert,
8 W.E. 272 ; re StoeJcen's Settlement Trusts (1893) W.N. 202 ;
re Cane's Trusts (1895) 1 I.E. 172 ; and in this case the
expedient of appointing the person beneficially entitled or some
other person a new trustee has to be resorted to, so that the
vesting order may be made under subsection (i.). See also
next note.
"Trustee entitled." — This will presumably include the
personal representatives of a deceased trustee in whose sole
name stock is standing. , This case was specifically provided
for by section 25 of the Trustee Act, 1850 (13 & 14 Vict. c. 60),
which section is repealed by but not re-enacted in the present
Act. It has been held that where the trustee of an English
will died domiciled in Scotland, his executor who had proved
the will in Scotland and not in England, as being entitled to
prove the wUl in England, was his personal representative
within the meaning of that section, re Trubee's Trusts (1892)
3 Ch. 55. In that case North, J., expressed himself to be
following re Price's Settlement (1883) W.N. 202, but since in
that case the expedient of appointing a new trustee was resorted
to, it can hardly be claimed as a precedent. Be Ellis's Settle-
ment, 24 B. 426, and re Dickson (1872) W.N. 223 ; 27 L.T. N.S.
671, however, appear to shew that persons entitled to prove the
will were " personal representatives " within section 25 of the
Trastee Act, 1850. Such persons will not be held to be " entitled
to " stock within the present subsection, for until probate
they cannot compel transfer in the books of the company, re
Cane's Tr-usts (1895) 1 LR. 172. In the case therefore of the
executor of a last trustee not proving, as in other cases in which
there is no personal representative of a sole trustee of stock, a
new trustee must be appointed in order to obtain a vesting
order, as suggested in the last note, supra.
" Is an Infant." — The question whether an infant, in whose
name (either solely or jointly with other persons) stock, to
which he is beneficially entitled, has been transferred, can be
declared a trustee of such stock, for the purposes of this sub-
section, has been raised in several cases. In re Findlay, 32 Ch. D.
221, 641, an order was made declaring the infant a trustee,
and vesting the right to call for a transfer of the stock in other
Teustee Act, 1893. las
persons. The Bank of England, however, refused to act on the*
order, on the ground that the Court had no jurisdiction *to
declare the infant a trustee, and the validity of the order was
not insisted upon by the parties to the application. The only
reported decision supporting the position so taken up by the
Bank of England appears to be re Westwood, 6 N.R. 61, 316,
but an order similar to that made in re lindlay had been made
in Sanders v. Homer, 25 Beav. 467 ; Bives v. Rives (1866) W.N.
144; Gardner v. Gowles, 3 CD. 304; re Hanvood, 20 CD. 536;
and, since the date of re Findlay has been made, in re Barnett
(1889) W.N. 216.
The chief inconvenience of allowing stock to remain in the
name of an infant is the difficulty that arises in dealing with
the dividends. This inconvenience is partly removed by the
provisions of section 32 of 11 Geo. 4. and 1 Will. 4. c. 65, which
is as follows : " And be it further enacted that it shall be lawful
for the Court of Chancery, by an order to be made on the petition
of the guardian of any infant in whose name any stock shall be
standing or any sum of money, by virtue of an Act for paying
off any stock and who shall be beneficially entitled thereto, or
if there shall be no guardian, by an order to be made in any
cause depending in the said Court to direct all or any part of
the dividends due or to become due in respect of such stocks, or
any such sum of money to be paid to any guardian of such infant
or to any other person according to the discretion of such Court
for the maintenance and education or otherwise for the benefit
of such infant, such guardian or other person to whom such
payment shall be directed to be made being named in the order
directing such payment, and the receipt of such guardian or
other person for such dividends or sum of money or any part
thereof, shall be as effectual as if such infant had attained the
age of twenty-one years and had signed and given the same."
As to stock transferable in the books of the Bank of England
or the Bank of Ireland, section 3 of the National Debt (Stock-
holders Eelief) Act, 1892 (55 & 56 Vict. c. 39), provides as
follows : " In the following cases, namely, (a) where an infant
is the sole survivor in an account ; and (6) where an infant
holds stock jointly with a person under legal disability ; and
(c) where stock has by mistake been brought in or transferred
into the sole name of an infant, the bank may, at the request
in writing of the parent, guardian, or next friend of the infant,
receive the dividends and apply them to the purchase of like
stock, and the stock so purchased shall be added to the original
investment."
In the case of Bevoy v. B&voy, 3 Sm. & Giff. 403 ; 3 Jur.
N.S. 79, where a father had transferred stock into the joint
names of himself, his wife, and an infant child, not intending to
part with the ownership or control thereof, the infant was
declared a trustee for the father, and the right to call for a
transfer of the stock was vested in the father. That case was
followed in Stone v. Stone, 3 Jur. N.S. 708, in which case the
facts were very similar.
/
134 Trustee Act, 1893.
Sect. 35. " Out of the Jurisdiction of the High Court." — As to the
atsence which brings a trustee within this phrase, see note to
the same words in section 26, subsection (ii.), supra, p. 107.
Cases in which the Court has made vesting orders under the
subsection or sections 22 and 25 (the corresponding sections)
of the Trustee Act, 1850, are re Angela, 5 D.G. & Sm. 278, where
a m.ortgagor of stocks was held a trustee for a purchaser from
the mortgagee (see ante, p. 119) ; re Price (1894) W.N. 169, and
re Lees (1896) 2 Ch. 508, in which cases a vesting order was
made in favour of the trustees, other than the one abroad, with-
out a new trustee being appointed ; re Peyton, 25 B. 317 ; 2 D.G.
& J. 290, in which case an order vesting the right to receive
dividends in the trustees, other than the one abroad, was varied
by limiting the right to the joint lives of such trustees; re
Blaine,(1886) W.N. 203, and re Keeley, 53 L.T. 487, in which
■ cases a new trustee, in place of the absent' trustee, had been
appointed out of Court ; and re Mainwaring, 26 B. 172, in which
case the order was varied by the insertion of an express recital
that the trustee was out of the jurisdiction.
"Neglects or refuses to transfer Stock . . . according to
the Direction of the Person absolutely entitled thereto." — See
and compare the language of subsection (vi.) of section 26,
supra, p. 103, which subsection contains the corresponding
provision as to the refusal to convey land. Provision for the
case of refusal to transfer stock was formerly contained in
sections 23, 24, and 25 of the Trustee Act, 1850.
The expression " person absolutely entitled " has been held
to include trustees appointed out of Court, exparte Bussell,
1 Sim. N.S. 404; re Ellis, 24 B. 426; re Baxter, 2 Sm. & Giff.
App. 5 ; and since subsection (i.) of the present section deals
only with the case of new trustees appointed by the Court, the
present provision is of very great importance in enabling
trustees appointed out of Court to obtain transfer of stocks
which cannot be obtained by means of a vesting declaration
under section 12, supra, p. 63. The expression has also been
held to include beneficiaries absolutely entitled, re White,
5 Ch. 698, but not a tenant for life, exparte Bussell, 1 Sim. N.S.
404; Mackenzie v. MacTcenzie, 5 D.G. & Sm. 338, except as to
dividends already accrued due, re Hartnall, 5 D.G. & Sm. 111.
It may be noted that section 36, which provided that orders
concerning "any land, stock, or chose in action subject to a
trust "may be made on the application of "any person bene-
ficially interested in the land, stock, or chose in action," or
" any person duly appointed trustee thereof," does not extend
the scope of the present subsection so as to include persons
beneficially interested otherwise than absolutely. Exparte
Bussell, 1 Sim. N.S. 404 ; Mackenzie v. Mackenzie, 5 D.G. & Sm.
338.
Orders under the repealed sections of the Trustee Act, 1850,
have been made against an executor of a last surviving trustee,
who has not proved, re Ellis, 24 B. 426 ; re Thornton's Trusts,
Trustee Act, 1893. 135
9 W.R. 475, and against one of the next of kin of a testator Sect. 35.
who, though not appointed executor, was entitled to take out
administration, re Stroud (1874) W.N. 180. Cf. note on
" Trustee entitled," supra, p. 132.
" For Twenty-eight Days." — The Court has no jurisdiction
under this subsection to make an order upon a petition
presented before the expiration of the twenty-eight days, re
Knox (1895) 1 Ch. 538 ; (1895) 2 Ch. 483. In Knight v. Knight
(1866) W.N. 114; a motion for a vesting order (of land) in a
suit was ordered to stand over until the expiration of the
twenty-eight days.
" Neglects or refuses to transfer Stock . . . after an Order
of the High Court has been served on him." — The con-
tingency here contemplated was not provided for by the Trustee
Act, 1850, see Mackenzie v. Mackenzie, 5 D.Gr. & Sm. 338, and
was accordingly dealt with by sections 4 and 5 of the Trustee
Extension Act, 1852 (15 & 16 Vict. c. 55), which sections are
repealed by the present Act. See section 51, and Schedule,
infra.
The provisions of section 14 of the Judicature Act, 1884
(47 & 48 Vict. c. 61), should be compared with the present
section, and are set out in the note to section 31, supra, p. 123.
"Where it is uncertain whether a Trustee ... is alive
or dead." — Provision for this event was formerly contained in
sections 22 and 25 of the Trustee Act, 1850 (13 & 14 Vict.
c. 60) ; section 26, subsection (iv.) of the present Act provides
for the same event in the case of land.
As to the presumption of death arising from the fact that a
person has not been heard of for seven years, see re Phene's
Trust, 5 Ch. 159 ; re Lewes' Trusts, 6 Ch. 356 ; Hickman v.
Upsall, 20 Eq. 136; re Gorhishley's Trusts, 14 CD. 846; In re
Bhodes, 36 CD. 586 ; In re Benjamin (1902) 1 Ch. 723. An
order was made under the provisions in section 22 of the
Trustee Act, 1850, in a case in which one of two trustees in
whose names stock was standing appears not to have been
heard of for seventeen years, re Bourke, 2 D.CJ. & Sm. 426,
"May make an Order ... in any such Person as the
Court may appoint." — The proper form of order for vesting
stock, on which there is no liability, in trustees, directs that the
right to transfer the stock, and to receive the dividends thereon,
shall vest in the trustees, and orders them to transfer the
same into their own names to he held hy them on the trusts of the
instrument. Seton, 6th edit., 213 ; re Gi-egson (1893) 3 Ch.
233 ; re Joliffe (1893) W.N. 84 ; re Price (1894) W.N. 169. Cf .
re C.M.G. (1898) 2 Ch. 324; re Tweedy, 28 Ch. D. 529.
Where before the transfer took place one of the new trustees
died, the words "or the survivor of them" and a direction to
transfer into " their or his names or name " were, by consent
of all parties, added to the order, re Glanville (1877) W.N. 248 ;
(1878) W.N. 21. The usual form of order, when shares not
136 Trustee Act, 1893.
♦
Sect. 35. fully paid are to be vested, directs that the right to transfer the
shares to any 'purchase^' (yr purchasers, and to receive dividends,
shall vest in the trustees, the trustees undertaking to hold the
proceeds of sale thereof (if any) upon the trusts of the instru-
ment. Seton, 6th edit., p. 1213 ; New Zealand Trust and Loan
Co. (1893) 1 Ch. 403. As to form of order vesting unauthorised
investments in new trustees, see re Peacock, 14 Ch. D. 212
(ante, p. 131) ; Seton, 6th edit., p. 1212.
Where part of the property was inadvertently omitted, a
further order was made vesting the omitted property, re Hopper
(1886) W.K 41 ; 54 L.T. 267.
Where the order vests the right to transfer in a person
beneficially entitled, it would seem that the order ought to
direct him to transfer into his own name. See arguments in
re Gregson (1893) 3 Ch. 233, a case of appointment of new
trustees, but it is conceived the arguments apply to all vesting
orders of stock.
Recitals are not usually inserted in vesting orders except in
orders to be acted upon by the bank; or in orders made in
Chambers ; in the latter case, as there is no formal statement of
the facts, as in a petition, it is convenient, and in the former
case the bank require that the following facts be stated, viz.
(1) that the persons in whose name the stock stands are
trustees ; (2) that one of the cases provided for by the Act has
occurred; and (3) that the applicants are beneficially interested
or otherwise come within section 87. See re Ellis, 24 Beav.
426 ; re Mainwaring, 26 Beav. 172; Seton, 6th edit., p. 1248.
"Where the Order is consequential on the Appointment
by the Court of a New Trustee, etc." — Similar provision to
that contained in this proviso was formerly made by section 35
of the Trustee Act, 1850 (13 & 14 Vict. c. 60). As to vesting
orders on the appointment of a new trustee by the Court, see
notes to subsection 1 (i) of the present section.
"Where the Person whose Right is dealt with by the
Order was entitled jointly, etc." — Similar provisions to that
contained in this proviso' were formerly made by sections 22
and 24 of the Trustee Act, 1850 (13 & 14 Vict. c. 60).
Subsection 2. "Appoint some Proper Person to make or
join in making the Transfer." — Similar provision was formerly
made by section 20 of the Trustee Act, 1850 (13 & 14 Vict,
c. 60). Section 33 of the present Act makes provision for
the appointment of a person to convey land.
Subsection 3. — Similar provisions were formerly contained
in section 26 of the Trustee Act, 1850 (13 & 14 Vict. c. 60), and
section 6 of the Trustee Extension Act, 1852 (15 & 16 Vict,
c. 55). Having regard to the importance of keeping the bank
books clear, the Court will place a very strict interpretation on
any section where there is room for argument. JBe Sviyth's Settle-
ment, 4 D.G. & Sm. 499. The Bank of England has been
diligent in raising qaestions on the construction of the repealed
Trustee Act, 1893. 137
sections of the Trustee Act, 1850, and on the forms of vesting Sect. 35.
orders thereby authorised. Cf. re Olanville (18?7) "W.N. 248 ;
(1878) W.N". 21; re MUs, 24 Beav. 426; re Mainwaring,
26 Beav. 172 ; re Gregson (1893) 3 Ch. 233.
As to the indemnity to the bank in acting on any vesting
order under the Act, see section 49, infra.
Subsection 4. — Similar provision was contained in section 26
of the Trustee Act, 1850 (13 & 14 Vict. c. 60). In many cases
it may be expedient to immediately give notice under this
subsection to the bank or company of the making of the order,
so as to protect the stock in the interval between the making
and the drawing up of the order.
Subsection 5. — Similar provision was contained in section 31
of the Trustee Act, 1850 (13 & 14 Vict. c. 60). It is under
this subsection that when the right to transfer stock is vested,
the order proceeds to say to whom the same is to be transferred.
See supra, p. 135.
Subsection 6. — This subsection replaces section 10 of the
Merchant Shipping Act, 1855 (18 & 19 Vict. c. 91), which
enacted that shares in ships registered under the Merchant
Shipping Act, 1854 (17 & 18 Vict. c. 104), should be deemed to
be included in the word "stock" as defined by the Trustee Act,
1850, and that the provisions of such last-mentioned Act should
be applicable to such shares accordingly. It is not evident
why the definition of stock in section 50, " so far as relates to
vesting orders made by the Court under this Act," is not made
to include shares in ships.
Section 36. — (l.) An order tinder this Act for Sect. 36.
the appointment of a new trustee or concerning any
land, stock, or chose in action subject to a trust, ^tmed to
may be made on the application of any person apply for
beneficially interested in the land, stock, or chose in ""^ ^^'
action, whether under disability or not, or on the
application of any person duly appointed trustee
thereof.
(2.) An order under this Act concerning any
land, stock, or chose in action subject to a mortgage
may be made on the application of any person bene-
ficially interested in the equity of redemption,
whether under disability or not, or of any person
interested in the money secured by the mortgage.
This section is a re-enactment of section 37 of the Trustee
Act, 1850 (13 & 14 Vict. c. 60), which section is repealed by the
present Act. See section 51, and Schedule, infra.
138
Tkustee Act, 1893.
Sect. 36.
Sect. 37.
Powers of
new trustee
" Beneficially interested in." — A person having a contingent
interest in a trust fund comes within the section, re Sheppard's
Trust, 4 D.Gr.F. & J. 423 ; bnt a person having a mere possi-
bility would presumably not be included. Cf . Davis v. Angel,
31 Beav. 223. Where a sale has been decreed, and the purchase-
money paid, the purchaser comes within the section, Ayles v. Cox,
17 Beav. 584, and in such a case the purchaser should make the
application, as it has been suggested that the vendors are not
persons " beneficially interested in the land " within the mean-
ing of the section, Mowiey v. Adams, 14 Beav. 130, though
plaintiffs in a creditor's administration action in which a sale
has been made have been held to be within the section, re
Wragg, 1 Be G.J. & S. 356. Where the sale is in lots, the
purchasers of several lots may, to save expense, join in one
application, Mowley v Adams, supra. Committees of a lunatic
cestui que trust are not beneficially interested within the meaning
of the section, reBourhe, 2 D.G.J. & Sm. 426.
"Person duly appointed Trustee." — A constructive trustee
appears, therefore, not to be authorised to apply under the Act
for an order.
It should be noted that this section deals only with procedure,
and does not extend the jurisdiction of the Court to make orders
in cases not provided for in earlier sections. See exparte
Bussell, 1 Sim. N.S. 404, 408 ; Machenzie v. Mackenzie, 5 D.G.
& Sm. 338, 341.
Practice. — As to practice generally, see post, p. 191.
For definitions of « trust," " trustee," " land," " stock," and
" mortgage," see section 50, infra ; and as to the inclusion of
shares in ships in vesting orders as to " stocks," see section 35,
subsection 6, supra, p. 131.
Section 37. — Every trustee appointed by a
court of competent jurisdiction shall, as well before
as after the trust property becomes by law, or by
appomtedby assurance, or otherwise, vested in him, have the
same powers, authorities, and discretions, and may
in all respects act as if he had been originally
appointed a trustee by the instrument, if any,
creating the trust.
This section re-enacts, with verbal amendments, section 33 of
the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict,
c. 41), which section is repealed by the present Act. See section
51, and Schedule, iw/ra. The repealed section replaced the pro-
vision contained in section 27 of Lord Cranworth's Act (23 & 24
Vict. c. 145), that every trustee appointed by the Court, whether
before or after the passing of the Act, should have the same
powers, authorities, and discretions, and might in all respects
Trustee Act, 1893. 139
act, as if he had been originally nominated a trustee by the Sect. 37.
. instrument creating the trust.
Section 33 of the Trustee Act, 1850 (13 & 14 Vict. c. 60),
■which section is repealed by the present Act (see section 50, and
Schedule, infra), enacted that the person or persons appointed
trustees by order under that Act should have all the same rights
and powers as he or they would have had if appointed by decree
in a suit duly instituted.
That in many cases trustees appointed by the Court, whether
by decree or by order, could not, apart from express statutory
provision, exercise the powers and discretions given to the
trustees by the instrument, see Lewin, 10th edit., pp. 722,
723, and the cases there cited.
Although the present section is not, as were sections 27 of
Lord Cranworth's Act and 33 of the Conveyancing and Law
of Property Act, expressed to apply to appointments made
before as well as those made after the passing of the Act, it
would seem clearly not to be intended to be restricted to the
latter.
Although the language of the present section and the repealed
sections is very general, it is to be assumed that it will not
operate to vest in a new trustee powers and discretions which
are expressly, or by necessary implication, restricted to the
trustees originally appointed by the instrument creating the
trust. It is suggested that the same tests which would
decide whether the power and discretion would survive to the
other or others in the event of the death of one trustee, will
also serve to decide whether the power or discretion is one
which, on the appointment by the Court of a new trustee,
becomes vested in him. See notes to section 22, supra, p. 85.
There appears to be a singular lack of authority as to the
operation of the sections in question. In the case of Cooper
V. Macdonald, 35 Beav. 504 (decided five years after Lord
Cranworth's Act came into force), it was held that a trustee
appointed by the Court could not exercise a power to appoint
new trustees given by the settlement to the surviving trustees
or trustee. It does not appear from either report of this
case that Lord Cranworth's Act was referred to. The true
ratio decidendi of this case obviously was that the power to
appoint only arose in accordance with the language of the will
in the event of the death of an original trustee, or one appointed
under the power in the will, and had not arisen by the death of
a trustee appointed by the Court. (The statutory power for
surviving trustees to appoint on the death of any trustee,
whether appointed by the Court or not, did not apply in the
case under discussion, for the early part of section 27 of Lord
Cranworth's Act only applies to instruments created after that
Act.)
For the similar provision in the case of the appointment by
individual donees, see section 10 (3), supra, p. 49.
" The Same Powers and Discretions." — This does not include
140
Trustee Act, 1893.
Sect. 37.
Sect. 38.
Power to
charge costs
on trust
estate.
the duties incident to the office of personal representative of a
deceased person. See ante, p. 102.
For definitions of "trust," "property," and "instrument,"
see section 50, infra.
Section 38. — The Higli Court may order the
costs and expenses of and incident to any application
for an order appointing a new trustee, or for a
vesting order, or of and incident to any such order,
or any conveyance or transfer in pursuance thereof,
to be paid or raised out of the land or personal
estate in respect whereof the same is made, or out of
the income thereof, or to be borne and paid in such
manner and by such persons as to the Court may
seem just.
This section replaces section 51 of the Trustee Act, 1850,
which section is repealed by the present Act. See section 51, and
Schedule, infra. Several verbal alterations occur, and one
substantial amendment, viz. the insertion of the words " and by
such persons," as to which, see the note below.
The section is required because the Court, acting under the
jurisdiction by way of petition and summons given to it by the
Act, "is not exercising its ordinary jurisdiction in which it has
a jurisdiction to dispose of costs." See judgment of BomiUy,
M.R., in re Primrose, 23 Beav. at p. 599 ; and re Sparles, 6 Ch. D.
361.
"Order appointing a New Trustee." — The general rule,
applicable to appointments by the Court or by individuals, is
that the costs, charges, and expenses of all parties, incurred in
and about the appointment of new trustees, and the transfer to
them of the trust estate, are properly chargeable against the
cm-pus of the trust fund. Harvey v. OUiver, 57 L.T. 239 ; ex
parte Davies, 16 Jur. 882 ; re Parby, 29 L.T. (O.S.) 72. But
where remaindermen made application for the appointment of
additional trustees unnecessarily, they were ordered to pay the
costs of the appointment, re Brackenhury, 10 Eq. 45 ; and trus-
tees retiring without adequate reasons, or whose conduct has
been unreasonable, or vexatious, have been disallowed their
costs, or even ordered to pay the costs of the appointment.
Porter v. Watts, 21 L.J. Ch. 211 ; Bichardson v. Gruhb, 16 W.R.
176; re Wiseman, 18 W.E. 574; re Adams, 12 Ch. D. 634; re
Knox's Trusts (1895) 1 Ch. 538, (1895) 2 Ch. 483.
If the trustees are appointed for distinct trust funds the
costs must be apportioned. Be Grant, 2 J. & H. 764 ; re Allen
(1887) W.N. 132.
" Vesting Order." — The costs of a vesting order under section
35, subsection 1 (e), were thrown upon the trustees, whose
Trustee Act, 1893. 141
unreasonable refusal to transfer had rendered the application Sect 38
necessary, re Knox's Trusts (1895) 1 Ch. 538, (1895) 2 Ch. 483. '- 1
A vesting order rendered necessary by the infancy, lunacy, or
other disability of a mortgagee, or his representative, will usually
be at the expense of the mortgagor. King v. Smith, 6 Hare
473 ; Fisher on Mortgage, 5th edit., p. 902. A vesting order
necessary to complete a conveyance on sale by private contract,
Bradley v. Munton, 16 B. 294, and Purser v. Barhy, 4 K. & J. 41,
or under the decree of the Court, Ayles v. Gox, 17 Beav. 584, will,
as a rule, be borne by the vendor.
" Of and incident to."— In re Fellowes, 2 Jur. N.S. 62, the
words " incidental and consequent on the inquiry " were struck
out of the petition.
" In such Manner." — Costs of appointment of new trustees
and vesting order as to realty have been ordered to be raised by
a charge on the inheritance. Exparte Davies, 16 Jur. 882 ;
re Grdbtree, 14 W.R. 497.
" By such Persons." — These words do not occur in the re-
pealed section of the Trustee Act, 1850. It was at least
extremely doubtful whether the earlier Act gave jurisdiction to
the Court to make a respondent personally responsible for the
costs of the petition, re Primrose, 23 Beav. 590; re Sparlcs,
6 Ch. D. 361 ; re Woodburn's Will, 1 D.G. & J. 333 ; re Wiseman,
18 W.Bi. 574; and the Judicature Act, 1873, did not remove the
difficulty, re Sarah Knight's Wil\ 26 Ch. D. 82 ; re Mills, 34
Ch. D. at p. 33. No such question arises under the present
section, re Knox's Trusts (1895) 1 Ch. 538, (1895) 2 Ch. 483.
For definitions of "trustee," "conveyance," "transfer," and
" land," see section 50, infra.
Section 39. — The powers conferred by this Act Sect. 39.
as to vesting orders may be exercised for vesting
any land, stock, or chose in action in any trustee of J[j™^y^g°^
a charity or society over which the High Court
would have jurisdiction upon action duly instituted,
whether the appointment of the trustee was made
by instrument under a power or by the High Court
under its general or statutory jurisdiction.
This section re-enacts, with verbal amendments, section 45
of the Trustee Act, 1850 (13 & 14 Vict. c. 60), which section is
repealed by the present Act. See section 51, and Schedule,
infra.
" The Powers . . . may he exercised." — The sanction of the
Charity Commissioners to the application to the Court is
requisite under section 17 of the Charitable Trusts Act, 1853,
in the case of all endowed charities subject to the jurisdiction
of the commissioners.
142
Tkcjstee Act, 1893.
Sect. 39.
Sect. 40.
Orders made
upon certain
allegations
to be con-
clusive
evidence.
" Over which the High Court would have Jurisdiction upon
- Action duly instituted." — See re Davenpo'i-t''s Charity, 4 De G.M.
& G. 839 ; and section 28 of the Charitable Trusts Act, 1853
(16 & 17 Vict. c. 137).
"By Instrument under a Power."— These vrords replace the
phrase " by any power contained in any deed or instniment "
in the repealed section, and will include an appointment made
by surviving trustees under section 10 of the present Act,
re Goates and Parsons, 34 CD. 70 ; see also, ante, p. 51. Trustees
can also be appointed under the Trustees Appointment Acts, 1850
to 1890 ; by the Court under the Charitable Trusts Act, the
consent of the Charity Commissioners to the application being
first obtained ; or by the Commissioners themselves.
For definitions of "trustee," "land," and "stock," see
section 50, infra.
Section 40. — Where a vesting order is made as
" to any land under this Act or under the Lunacy
Act, 1890, or under any Act relating to lunacy in
Ireland, founded on an allegation of the personal
incapacity of a trustee or mortgagee, or on an
allegation that a trustee or the heir or personal
representative or devisee of a mortgagee is out of
the jurisdiction of the High Court or cannot be
found, or that it is uncertain which of several
trustees or which of several devisees of a mortgagee
was the survivor, or whether the last trustee or the
heir or personal representative or last surviving
devisee of a mortgagee is living or dead, or on an
allegation that any trustee or mortgagee has died
intestate without an heir or has died and it is not
known who is his heir or personal representative or
devisee, the fact that the order has been so made
shall be conclusive evidence of the matter so alleged
in any court upon any question as to the validity of
the order; but this section shall not prevent the
High Court from directing a reconveyance or the
payment of costs occasioned by any such order if
improperly obtained.
This section is a re-enactment, with merely verbal amend-
ments, of section 44 of the .Trustee Act, 1850 (13 & 14 Vict.
c. 60), and section 104 of the Lunacy Act, 1890 (53 & 54 Vict.
c. 5), which sections are. repealed by the present Act. See
section 51, and Schedule, infra.
Trustee Act, 1893. 143
As to the evidence required of tte allegations before an Sect. 40.
order is made, see Gollinson v. Gollinson, 3 De G.M. & G. 409. — — -
"Where a Vesting Order is made as to any Lands." — It
mnst be noted that this section has no application to appoint-
ments of new trustees, nor to vesting orders as to stock, in this
respect being more restricted than section 49, infra, p. 161.
As to amending an order made on mistake as to facts, see
re Clinton, Jackson v. Claney (1882) W.N. 176.
The protection given by this section affords a strong induce-
ment to obtain a vesting order of the Court, rather than to rely
on a vesting declaration under section 10, in those cases in
which the adoption of either of these two courses is possible.
It should be noted that the present section deals only with
the facts on which an order is based, and not the jurisdiction
of the Court or the parties to the proceedings, as to which see
section 49, infra, p. 161 ; and cf. section 70 of the Conveyancing
and Law of Property Act, 1881 (44 & 45 Vict. c. 41).
" Personal Incapacity." — This seems to refer to the infancy
of a trustee, or mortgagee, provided for by sections 26 (ii.)a
and 28 ; but not to bankruptcy, felony, or other unfitness or
incapacity upon which no vesting order can be directly founded,
although such unfitness or incapacity may give the Court power
to appoint a new trustee under section 25, and make a conse-
quential vesting order under section 26 (i.).
" That any Trustee or Mortgagee has died Intestate without
an Heir." — The language of the present section has not been
altered to cover the case of there being no personal repre-
sentative provided for in sections 26 (v.) and 29 (e).
For definitions of "land," "trustee," "mortgagee," and
" devisee," see section 50, infra.
Section 41. — The powers of tlie High. Court in Sect. 41.
England to make vesting orders under this Act ~ \
shall extend to all land and personal estate in Her ofTestfng "
Majesty's dominions, except Scotland. °o^Cli° '^""^
This section replaces section 54 of the Trustee Act, 1850,
which was as follows : "And be it enacted that the powers and
authorities given by this Act to the Court of Chancery in
England shall extend to all lands and personal estate within
the dominions, plantations, and coloniesbelonging to Her Majesty
(except Scotland)." That section is repealed by the present
Act. See section 51, and Schedule, infra.
" High Court." — The expression is defined by section 13 (3)
of the Interpretation Act, 1889 (52 & 53 Vict. c. 63). " The
expression ' High Court,' when used with reference to England
or Ireland shall mean Her Majesty's High Court of Justice iu
England or Ireland, as the case may be." The powers there-
fore given to the High Court by other sections of the present
England.
144 Trustee Act, 1893.
Sect. 41. Act are given equally to tlie High Court in England and the
High Court in Ireland. The present section, however, is
expressly restricted to the High Court in England, and there is
no section in the present Act defining the jurisdiction of the
High Court in Ireland. It is submitted that in the absence of
such definition the jurisdiction must extend over real and
personal property situate in England and Ireland, for the Act
extends to both England and Ireland. It may be remarked
that the Trustee Act, 1850, only gave to the Court of Chancery
in Ireland jurisdiction over land and personal property in
Ireland (see Trustee Act, 1850, section 55). Now, by virtue of
section 2 of the Trustee Act, 1893, Amendment Act, 1894
(57 Vict. c. 10), the High Court in Ireland is, as from the 18th
June, 1894, given concurrent jurisdiction with the High Court
in England over land and personal estate in " Her Majesty's
dominions, except Scotland." See p. 175, below.
Under section 54 of the Trustee Act, 1850, the Court in
England made orders vesting real and personal property in
Ireland, re Hewitt's Estate, 6 W.R. 537 ; re Taitt's Trusts (1870)
W.N. 257 ; re Lamotte, 4 Ch. D. 325 ; re Hodgson, 11 Ch. D.
888 ; re Steele (1885) W.N. 218 ; and land in Canada, re Schofield,
24 L.T. O.S. 322 ; re Groom, 11 L.T. N.S. 336.
"Vesting Order." — As to the advantage of a vesting order
from the Court over a vesting declaration under section 10 in
respect of the scope of operation, see p. 143, above.
" Personal Estate." — As to the locality of bonds and shares,
re Glarh, McKecknie r. Clark (1904) 1 Ch. 294.
"Her Majesty's Dominions." — The expression is not defined
either in the present Act or in the Interpretation Act, 1889.
It is presumably used as including all places over which the
authority of the Legislature extends. Cf. section 18 of the
Interpretation Act, 1889 (52 & 53 Vict. c. 63).
"Scotland." — That the Act as a whole "does not extend
to Scotland," see section 52, infra.
For definition of "land," see section 50, infra.
Payment into Court by Trustees.
Sect. 42. Section 42. — (l.) Trustees, or the majority of
trustees, having in their hands or under their con-
Payment ^],qJ monev or securities belonarinff to a trust, may
mto Court by J • j. j.1, it- i, ^ °i. j j.1. "^
trustees. pay the same into the High Court; and the same
shall, subject to rules of Court, be dealt with
according to the orders of the High Court.
(2.) The receipt or certificate of the proper officer
shall be a sufficient discharge to trustees for the
money or securities so paid into Court.
Trustee Act, 1893. 145
(3.) Where any moneys or securities are vested Sect. 42.
in any persons as trustees, and the majority are ~
desirous of paying the same into court, but the
concurrence of the other or others cannot be ob-
tained, the High Court may order the payment into
court to be made by the majority without the
concurrence of the other or others ; and where any
such moneys or securities are deposited with any
banker, broker, or other depositary, the Court may
order payment or delivery of the moneys or securities
to the majority of the trustees for the purpose of
payment into court, and every transfer, payment, and
delivery made in pursuance of any such order shall
be valid and take effect as if the same had been
made on the authority or by the act of all the
persons entitled to the moneys and securities so
transferred, paid, or delivered.
This section replaces (1) tlie Legacy Daty Act, 1796
(36 Geo. 3. c. 52), section 32, wliich enabled executors and
administrators to pay shares of legatees who were infants or
beyond the seas into Court. The provisions of that Act
(including section 32, see Lewin, 10th edit. 409) were by
45 Geo. 8. c. 28, section 7, declared to apply to trustees and
owners of real estate charged with legacies " as fully and amply
as if ... repeated and re-enacted in this Act " ; (2) the
Trustee Relief Act, 1847 (10 & 11 Vict. c. 96), sections 1 and 2,
which authorised " trustees, executors, administrators, or other
persons having in their hands any moneys belonging to any
trust whatsoever or the major part of them," and " trustees and
other persons " having certain specified stocks standing in their
name upon any trust, or the major part of them, on filing an
affidavit describing the instrument creating the trust, to pay
and transfer the moneys and stock into Court ; and (3) the
Trustee Relief Act Amendment Act, 1849 (12 & 13 Vict. c. 74^,
section 1, which extended the provisions of the former Act, by
providing for an order being made for payment into Court in
case of difficulty in obtaining the consent of all the trustees.
The above-mentioned sections of the Acts of 1796, 1847,
and 1849, are repealed by this Act (see section 51, and Schedule),
and are re-enacted in a greatly condensed form by the present
section ; but section 7 of 45 Geo. 8. c. 28 has not been repealed,
and it seems open to argument that the owners of real estate
charged with a legacy payable to an infant or a person beyond
the seas might pay the legacy into Court. The rules of Court,
however, do not appear to contemplate, or make provision for,
any such payment.
L
146 Trustee Act, 1893.
Sect. 42. Section 5 of the Conveyancing and Law of Property Aot,
1881, provides, in the case of sale of land, for payment into Court,
by the direction of the Court, of a sum of money in discharge
of annual or capital sums charged upon the land. That section
also contains provisions for the payment in of an additional
amount to meet the contingency of further costs, expenses, and
interest, thus avoiding the possibility of injustice referred to in
the judgment of Romilly, M.R., in re Buckley's Trusts, cited
below.
" Trustees having in their Hands or under their Control
Money or Securities belonging to a Trust."— Having regard to
the extended meaning given to " trustee " by section 50 of the
present Act, it is apprehended that the omission in the present
section of the words "executors, administrators, or other person,"
* which occur in the repealed section of the Act of 1847, will not
restrict the operation of the Act. It will still be necessary,
however, as under the repealed section of the Act of 1847,
to show that the moneys or securities belong to a trust. Under
the Aot of 1847 it was held that a mortgagee having surplus
proceeds of sale in his hands was within the scope of the
enactment, Boberts v. Ball, 4 W.E.. 466 ; and also trustees of a
charity, re Poplar and Blackwell Free School, 8 Ch. D. 543 ; but
the owner of real estate subject to a charge was not included,
re Buckley's Trusts, 17 Beav. 110; nor a banking company
which had received notice as to conflicting claims to moneys on
deposit at the bank, re Sutton's Trusts, 12 Ch. D. 175.
Other statutory provisions for payment into Court are, the
Life Assurance Companies (Payment into Court) Act, 1896
(59 & 60 Yict. o. 8), prQviding for the payment into Court
by a Life Assurance Company of " any moneys payable by them
under a life policy in respect of which, in the opinion of their
board of directors, no sufficient discharge can otherwise be
obtained;" the Judicature Aot, 1873 (36 & 37 Vict. c. 66),
section 25 (6), authorising any debtor, trustee, or other person
liable in respect of a debt or chose in action which has been
assigned as therein mentioned, and who has notice of conflicting
claims thereto, to pay the same into Court under [this Act].
" Securities belonging to a Trust." — The Trustee Relief
Act, 1847, dealing with payment in without an order, applied
only to "annuities or stocks standing in the names of the
trustees in the books of the Governor & Co., of the Bank of
England, or of the Bast Indian Co., or South Sea Co., or any
Government securities." The Trustee Relief Amendment Act,
1849, dealing with payment in on an order, applied to " any
moneys, annuities, stocks, or securities." Be Oledstane (1878)
W.N. 26.
Having regard to the extremely wide meaning given to
the word " securities " as used in this section by section 50 of the
present Act, it would appear that the old restriction on the
range of securities which may be transferred into Court without
an order no longer exists. The Court has power to deal with
Teustee Act, 1893. 147
securities as it may think fit (see subsection 1 of this section), Sect. 42.
and would doubtless not allow the retention of securities of a
speculative nature, Cf. Trustee Act, 1893, Rules and note to
rule 4, infra, p. 199.
"May pay the same into the High Court." — The Trustee
Relief Acts formerly provided a valuable means of avoiding
the expense of a suit, and were constantly made use of in cases
in which questions arose in the course of administration as to
some particular portion of the trust funds, and a trustee who
commenced a suit instead of making use of these Acts was
bound to justify his action in so doing.
Now that an expeditious and inexpensive method has been
provided for obtaining the opinion of the Court on such
questions without the necessity of a general administration,
the importance of the provisions contained in the present
section is much decreased. A trustee should not avail himself
of the section without sufficient reason, and should consider
whether proceedings by originating summons would not be less
costly and troublesome to the persons interested, per Jessel, M.R.,
re Birkett, 9 Ch. D. 676 ; and trustees who pay money into
Court when the question arising might be decided upon an
originating summons under Order 55, r. 3 of the Rules of
Court, will not be allowed the costs occasioned by such payment
into Court, per Kay, J., re Giles, 55 L.J. Ch. 695 ; 34 W.R. 712 ;
55 L.T. 51.
In some cases, however, payment in may be less expensive
than raising a question on originating summons. Cf. remarks
of Cotton, L.J., in re Parker's Will, 39 Ch. D. 303.
An executor is not entitled, by paying a legacy, or a lapsed
share of residuary personalty, into Court, to exempt the general
residue from the costs of ascertaining the legatees or next of
kin, re Cfibbon's Will, 36 Ch. D. 486 ; re Giles, supra ; and it is
submitted that the principle is still applicable, for Order 65,
r. 14 (6) of the Rules of the Supreme Court, does not, when
there is a general direction to pay testamentary expenses out
of the residuary estate, throw the costs of inquiries as to the
persons entitled to a legacy or share on that particular legacy
or share, re Baumgarten, 82 L.T. 711 ; re Gi-oom (1897) 2 Ch.
407. The Court has, however, power to so exempt the residue
under Order 65, r. 14 (c).
Trustees of a charity should not pay money into Court
without first applying to the Charity Commissioners, re Poplar
and Blackwell Free School, 8 CD. 543, cited supra.
By payment into Court, trustees retire from the trust. See
Lewin, p. 412 ; re Poplar and Blackwell Free School, supra ; re
Murphy's Trust (1900) 1 I.R. 145.
" High Court." — As to County Court, see section 46, post,
p. 156.
Subsection 3. — This subsection, as did the Amending
Act of 1849, which it replaces, makes provision for cases in
148
Trustee Act, 1893.
Sect. 42. ■wMch the majority of trustees are unable to act under the
provisions of subsection 1, owing to the fact that the payment
authorised by that subsection is only possible with the con-
currence of all the trustees in whom the legal control is vested.
In such a case this subsection provides for the effectual transfer
or payment by virtue of an order of the Court, without the
concurrence of the other trustees.
" Costs of Payment in." — The Act makes no provision as to
costs of payment in. Since there is no means of obtaining
payment of costs out of the fund after payment in, except upon
the petition for payment out, the usual practice is to deduct
the costs before payment in, unless the amount of tlie costs or
the necessity for the payment in is disputed, Beaty v. Gurson,
7 Eq. 194. Where costs have been improperly deducted the
Court cannot order the trustee to refund on the petition for
payment out, but an action must be commenced, re Parher's
Will, 39 Ch. D. 303. Where payment in is made without
affidavit, costs cannot be deducted. Cf. Supreme Court Fund
Rules, 1894, Form 16, note. Generally as to costs of payment
in, see Daniell's Chancery Practice, 1805.
Practice. — See post, p. 198.
Tor definitions of "trustee," "trust," "pay," "payment,"
" securities," and " transfer," see section 50, infra.
Sect. 43.
Power to
give judg-
ment in
absence of a
trustee.
Miscellaneous.
Section 43. — Where in any action the High
• Court is satisfied that diligent search has been made
for any person who, in the character of trustee, is
made a defendant in any action, to serve him with a
process of the Court, and that he cannot be found,
the Court may hear and determine the action and
give judgment therein against that person in his
character of a trustee, as if he had been duly served,
or had entered an appearance in the action, and had
also appeared by his counsel and solicitor at the
hearing, but without prejudice to any interest he
may have in the matters in question in the action in
any other character.
This section is a re-enactment, with verbal alterations,
of section 49 of the Trustee Act, 1850 (13 & 14 Vict. c. 60),
which section is repealed by this Act. See section 51, and
Schedule, infra. The repealed section was itself a re-enactment
of section 24 of Lord St. Leonards's Trustee Act, 1830 (11
Geo. 4. & 1 Will. 4. c. 60).
Trustee Act, 1893. 149
" In any Action." — Section 49 of the Trustee Act, 1850, was Sect. 43.
restricted to suits in the Court of Chancery. There is no
definition of the word " action " in the present Act, nor in the
Interpretation Act, 1889 (52 & 53 Vict. c. 63). The word is
defined in the Judicature Act, 1873 (36 & 37 Vict. c. 66),
section 100, as meaning in that Act " a civil proceeding
commenced by writ or in such other manner as may be pre-
scribed by rules of Court ; and shall not include a criminal
proceeding by the Crown." And this definition includes pro-
ceedings commenced by originating summons. In re Fawsitt,
Oalland v. Burton, 30 CD. 231. But the Judicature Act
contains no definition applicable to other Acts, exparte
Chinery, 12 Q.B.D. 345. It would appear that proceedings
commenced by originating summons are not necessarily actions
within the ordinary meaning of that word as used apart from
the Judicature Act, re Wilson, 45 CD. 266 ; Lock v. Pearoe
(1893) 2 Ch. 271 ; and cf. re Holloimy (1894) 2 Q.B. 163. In
the present section the meaning of the word would appear to
be confined to proceedings commenced by writ, though it
might be argued that an action commenced by any originating
summons to which appearance has to be entered is also within
the section. It clearly does not apply to proceedings in which
no appearance is entered.
Cases in which the repealed sections were made use of
are Be Grespigny v. Kitson, referred to in 12 Sim. p. 163, under
the Act of 1830, and Westhead v. Sale, 6 W.E. 52, and Burrell
V. Maxwell, 25 L.T. N.S. 655, under the Trnstee Act, 1850.
For definition of "trustee," see section 50, infra.
Section 44. — (1.) Where a trustee [or other " Sect. 44.
person] is for the time being authorised to dispose
of land by way of sale, exchange, partition, or Banction°saie
enfranchisement, the High Court may sanction his of land or
so disposing of the land witb an exception or re- separately.
servation of any minerals, and with or without
rights and powers of or incidental to the working,
getting, or carrying away of tbe minerals, or so
disposing of the minerals, with or without the said
rights or powers, separately from the residue of
the land.
(2.) Any such trustee [or other person], with
the said sanction previously obtained, may, unless
forbidden by the instrument creating the trust or
direction, from time to time, without any further
application to the Court, so dispose of any such
land or minerals.
150 Trustee Act, 1893.
Sect. 44. (3.) Nothing in this section shall derogate from
' any power which a trustee may have under the
Settled Land Acts, 1882 to 1890, or otherwise.
The -words in [ J are inserted by section 3 of the Trustee
Act, 1893, Amendment Act, 1894 (see p. 175, below).
The present section replaces section 2 of the Confirmation of
Sales Act, 1862 (25 & 26 Vict. o. 108), which Act is repealed
by the present Act. See section 51, and Schedule, infra.
The passing of the repealed Act was rendered necessary by
the decision in Buckley v. Howell, 29 B. 546, that a power of sale
and exchange does not authorise trustees to sell the lands with
a reservation of the minerals. See remarks of Lindley, M.R.,
and Rigby, L.J., in re Gladstone (1900) 2 Ch. 101.
Section 2 of the repealed Act was as follows : " Every trustee
and other person now or hereafter to become authorised to dis-
pose of land by way of sale, exchange, partition, or enfranchise-
ment, may, unless forbidden by the instrument creating the trust
or power, so dispose of such land with an exception or reserva-
tion of any minerals, and with or without rights and powers of
or incidental to the working, getting, or carrying away of such
minerals, or may (unless forbidden as aforesaid) dispose of by
way of sale, exchange, or partition, the minerals, with or without
such rights or powers, separately from the residue of the land,
and in either case without prejudice to any future exercise of
the authority with respect to the excepted minerals, or (as the
case may be) the undisposed-of land ; but this enactment shall
not enable any such disposition as aforesaid, without the previous
sanction of the Court of Chancery, to be obtained on petition in
a summary way of the trustee or other person authorised as
aforesaid, which sanction once obtained shall extend to the
enabling from time to time of any disposition within this enact-
ment of any part or parts of the lands comprised in any order
to be made on such petition, without the necessity of any further
or other application to the Court."
The present section, as amended, includes a mortgagee with
a power of sale, as did also the repealed Act, re Beaumont's
Mortgage Trusts, 12 Bq. 86; re Wilkinson's Mortgaged Estates,
18 Bq. 634. Before the amendment by the Act of 1894 the
present section would not, owing to the definition of " trustee "
in section 50, have included a mortgagee who was not also a
trustee, re Merchants' Trust and New British Iron Co., 38
Solicitors' Journal 253. x
Tor the power of sale given to mortgagees by the Convey-
ancing and Law of Property Act, 1881, see section 19 of that
Act. The language of that section is probably not wide enough
to authorise a sale of the surface apart from minerals, or of
minerals apart from the surface, without the sanction of the
Court under the present section; cf. re Yates, Batcheldor v.
Yates, 38 CD. 112, in which case it was held by the Court of
Appeal that section 19 of the Conveyancing Act did not
Trustee Act, 1893. 151
authorise the separate sale of trade machinery; and Born Sect. 44.
V. Turner (1900) 2 Ch. 211, in which case it was held by
Byrne, J., that the section authorised the grant by implication
of an easement over unsold portions of the mortgaged land.
" Unless forbidden by the Instrument creating the Trust." —
It is remarkable that these words are only introduced in the
second subsection, the purpose of which subsection appears
merely to be to dispense with any further application to the
Court when the sanction of the Court has been once obtained.
But though the effect of this is, apparently, to give power to
the Court to sanction a separate sale even in cases in which the
instrument expressly forbids it, the Court would, presumably,
refuse in such a case to give the necessary sanction. The
repealed section clearly gave no power of separate sale in cases
in which the instrument expressly forbade such sale.
"Nothing in this Act shall derogate." — For the powers of
sale and exchange given by the Settled Land Act, 1882, to
tenants for life, see Settled Land Act, 1882, section 3, section
4 (6), and section 17 (and for the exercise of these powers by
the trustees when the tenant for life is an infant, section 60).
Section 5 of the Settled Land Act, 1890, authorises the creation
of easements on a sale or exchange. As to the power of the
tenant for life under the Settled Land Acts to lease the surface
apart from the minerals, see re Gladstone (1900) 1 Ch. 101.
The words " without prejudice to any future exercise of
the authority, etc." in the repealed section are omitted in the
present section as unnecessary, re Thomas's Trusts, 40 Sol. J. 98.
Practice. — See post, p. 196.
For definitions of " trust," " trustee," " land," and " instru-
ment," see section 50, infra.
Section 45. — (l.) Where a trustee commits a gect. 45.
breach of trust at the instigation or request or with
the consent in writing of a beneficiary, the High ^o^er^*°^^^
Court may, if it thinks fit, and notwithstanding that Aciary in-
the beneficiary may be a married woman, entitled for l^^^^'^J°''
her separate use and restrained from anticipation, truat.
make such order as to the Court seems just, for im-
pounding all or any part of the interest of the
beneficiary in the trust estate by way of indemnity
to the trustee or person claiming through him.
(2.) This section shall apply to breaches of trust
committed as well before as after the passing of this
Act, but shall not apply so as to prejudice any
question in an action or other proceeding which was
pending on the twenty-fourth day of December one
152 Trustee Act, 1893.
Sect. 45. thousand eight hundred and eighty-eight, and is
pending at the commencement of this Act.
This section is a re-enactment of section 6 of the Trustee
Act, 1888, which section is repealed by this Act. See section 51,
and Schedule, infra.
Section 6 of the Trustee Act, 1888, was in the main merely
a statement of the then existing law. In two points, however,
it altered the law, (a) in extending the right of impounding to
the interest of a married woman restrained from anticipation,
and (6) in providing that consent, if in writing, may form the
basis of a claim to impound.
Neither section 6 of the Act of 1888, nor the present section,
displace the previously existing equitable rights and remedies
of trustees as against beneficiaries. See the judgment of
Eomer, J., in Bolton v. Gurre (1895) 1 Ch. at p. 549, which con-
tains the following passage : " But it is now said that section 6
of the Trustee Act, 1888, which, was substantially repeated by
section 45 of the Trustee Act, 1893, has altered the law. It is
contended that the whole of the law as to the impounding of
interests to indemnifying trustees is now contained in those
sections, and that the formerly existing law on the subject was
put an end to by the Act of 1888, unless it was re-enacted by
section 6. It is further said that by that section, and the corre-
sponding section of the Act of 1893, the impounding is now put
absolutely in the discretion of the Court, and that the interest
of a beneficiary is not affected by any equity in favour of the
trustees until the Court orders the impounding. ... I think
this contention cannot be sustained. In my opinion section 6
of the Act of 1888 was intended to enlarge the power of the
Court as to indemnifying trustees, and to give greater relief to
trustees, and was not intended and did not operate to curtail
the previously existing rights and remedies of trustees, or to
alter the law except by giving greater power to the Court. The
discretion given to the Court by section 6, as to whether it will
impound or not, is a judicial discretion, and if, prior to the pass-
ing of that Act, the Court would, in a proper case, enforce the
equity of the trustee, and impound the interest of a beneficiary
in the hands of an assignee, then the Court would be bound to
do the same in a similar case after the Act. The equity of the
trustees exists as much since the Act as before ; and if the Court
before the Act thought fit, in a proper case, to enforce that
equity by iiupounding, it will equally since the Act think fit to
enforce the equity in a similar case, and impound."
As to the general intention of the section, see also the judg-
ments of the Court of Appeal in Chillingworth v. Gliamhers
(1896) 1 Ch. 685, and especially the passage on p. 707 in the
judgment of Kay, L.J. : " The statute does not define the extent
of the liability of a concurring beneficiary. The sixth section is
rather addressed to describe the case in which the Court may,
if it shall think fit, impound all or any part of the interest of
Trtjstee Act, 1893. 153
the beneficiary by way of indemnity to tbe trustees, and also to Sect. 45.
provide that consent of a beneficiary for this purpose must be
given in writing." Also the dictum of Davey, L.J., in re
Somerset (1894) 1 Ch. at p. 275 : " Although the power of im-
pounding the interest of the beneficiary is extended by the
section to new cases, it is not a new power, and I cannot find
any words in the section which have the effect of directing the
Court to exercise the statutory jurisdiction on principles different
from those on which it acted before the statute."
It would appear, therefore, that the discretion of the Court
will be exercised in conformity with the decisions before the
24th December, 1888, except only on the two points above men-
tioned (consent in writing, and restraint on anticipation), and
that the principles on which those decisions were based will still
control the action of the Court.
"At the Instigation or Request or with the Consent in
Writing." — Before the Act of 1888 mere consent was not enough
to create liability, see the judgment of Chitty, J., in Sawyer v.
Sawyer, 28 CD. at p. 598. The Act in this respect alters the
law. The instigation, request, or consent to create liability
must be with sufficient knowledge of the facts which make the
act or omission a breach of trust, re Somerset (1894) 1 Ch. 231.
Thus, in the case of an improper investment, knowledge that
the proposed investment is a breach of trust must be shown,
and the section is not to be construed as if the word "invest-
ment " had been inserted instead of " breach of trust " (per
Lindley, L.J., S.C, p. 265). Full knowledge of the facts is
especially essential in the case of married women restrained
from anticipation (see cases cited below). The words "in
writing " apply, of course, only to consent, and not to instigation
and request. Griffith v. Hughes (1892) 3 Ch. 105 ; approved
in re Somerset (1894) 1 Ch. at p. 265, and Mara v. Browne (1895)
2 Ch. at p. 92.
" The High Court may, if it thinks fit." — The discretion is
a judicial discretion. Cf. observations of Romer, J., cited above.
" Notwithstanding that the Beneficiary may be a Married
Woman entitled for her Separate Use and restrained from
Anticipation." — Before the Act of 1888 the Court had no power
to impound the interest of a married woman restrained from
anticipation. The Court will only exercise its jurisdiction to
impound the interest in such a case with great caution, and
bearing in mind that it is the duty of trustees to protect the
married woman against herself. The relief was granted in the
case of Griffith v. Hughes (1892) 3 Ch. 105, but refused in
Bicketts V. Bicketts, 64 L.T. N.S. 263, Bolton v. Gurre (1895)
1 Ch. 551, and Mara v. Browne (1895) 2 Ch. 69 (reversed on
another point (1896) 1 Ch. 199).
" By Way of Indemnity to the Trustee or Person claiming
through him." — The right to impound as it existed before the
Act of 1888, was primarily in favour of the innocent beneficiaries.
154 Trustee Act, 1893.
Sect. 45. It was only when the trustee had satisfied their claims that he
was entitled to stand in their shoes and impound the interest of
a concurring beneficiary to indemnify himself. Cf. judgment of
Turner, L.J., in_ Bahy v. Bidehalgh, 7 D.G.M. & G. at p. 109.
The present section, however, deals -with the rights of the trus-
tees, and not with those of the innocent beneficiaries, unless
these latter can be considered to be " persons claiming through "
a trustee within the meaning of the section. Cf. Leahy v. de
Mullens (1896) 1 Ir. R. 206, ante, p. 7, and re Frith, Newton v.
Bolfe (1902) 1 Ch. 342, a case which deals with a creditor's right
in suing a trustee to claim the benefit of the indemnity to which
the trustee is entitled out of the estate. It seems doubtful,
therefore, whether in favour of beneficiaries this section gives
any additional right, either as against a married woman re-
strained from anticipation, or as against a beneficiary who has
merely consented to a breach of trust, without otherwise con-
curring in it.
"For impounding all or any Part of the Interest of the
Beneficiary." — The section does not define the extent of the
liability of a concurring beneficiary (cf. the dictum of Kay, J.,
cited above). It would therefore appear that the Court would
still give effect to any principle limiting that liability recognised
as existing before the passing of the Act, Whether any such
principle existed limiting the liability of the share of the
beneficiary to be impounded, as distinguished from the personal
liability of the beneficiary to indemnify the trustee, is a question
of some difiSculty. The case of Baby v. Bidehalgh, 7 De G.M.
& G. 104, expressly limits the personal liability of a concurring
beneficiary (which liability in earlier cases had been laid down
in very general terms : cf. Trafford v. Boehm, 3 Atk. 440) to
the extent to which such beneficiary had received capital or
income under the breach of trust. The case has been cited as
expressly limiting the liability of the share of the beneficiary in
the same way. A possible explanation of the wording of the
judgment in that case is suggested by A. L. Smith, L.J., in
GhilUngworth v. Chambers (1896) 1 Ch. at p. 709, viz. that the
limited impounding there ordered was sufficient to indemnify
the trustee. A careful consideration of the facts as reported
would seem clearly to show that such was the case. The point
was raised in argument in the case of Sawyer v. Sawyer,
28 CD., pp. 601, 602, but as in that case the decision was that
no charge was created, it is not an authority on the point.
The decision of the Court of Appeal in GhilUngworth v. Chcmbers
(1896) 1 Ch. 685, in which case the question was very fully
discussed, does not necessarily decide the point, for there the
concurring beneficiary was also one of the trustees.
A possible view of the result of the authorities (a view
which appears to have been adopted by Kay, L.J., in GhilUng-
worth V. Ohambers, supra), is that the rule as to the liability of
a share to be impounded is different in the case of a concurr-
ing beneficiary who is also a trustee, to that which is applied
Trustee Act, 1893. 155
in the case of a concurring beneficiary who is not a trustee. Sect. 45.
In the case of a beneficiary who is a trustee, OhilUngworth
V. Chambers, swpra, clearly decides that the whole share is
liable to be impounded, but when the principles from which
this result is obtained are examined, it appears doubtful
whether they can be extended to the case of a beneficiary not a
trustee. These principles, as stated in the judgment of North, J.,
in Chillingworth v. Chambers, supra, appear to be that where a
trustee beneficiary has concurred in a breach of trust, he is
bound (as is any trustee) to pay the shares of the innocent
beneficiaries in full. He cannot take anything out of the fund
for himself until this has been done. If when this has been
done no part of the fund remains to provide for his own share,
he cannot call upon his co-trustee to make good such share or
any part of it, for it is a very clearly established rule that a
beneficiary who has concurred in a breach of trust cannot call
upon the trustees to make good any loss which accrues to him
therefrom. In the result, therefore, the whole share is virtually
"impounded." But those principles do not apply to the case
of a beneficiary who is not a trustee. In such a case, notwith-
standing the dicta of Lindley and A. L. Smith, L. JJ., in Chilling-
worth V. Chambers, it appears to be still an open question
whether the Court can impound the interest of a beneficiary
to a greater extent than the amount of his personal liability
limited as stated above, and there appears to be no reported
cases in which such a course has been adopted.
As to the trustees' general right of indemnity in respect of
expenses properly incurred, see section 24, supra.
As to contribution between co-trustees generally, see also
Bahin v. Hughes, 31 CD. 390; Birlcs v. Michlethwait, 33 Beav.
409; BoUnson v. Harkin (1896) 2 Ch. 415; Moxham v. Grant
(1900) 1 Q.B. 88.
"Interest of the Beneficiary in the Trust Estate."— The
liability attaches not only to the original share of the beneficiary,
but also to shares to which he subsequently becomes entitled,
Evans v. Benyon, 37 CD. 829; Chillingworth v. Chambers (1896)
1 Ch. 685. The liability exists as against the assignee of the
share, Bolton v. Curre (1895) 1 Ch. 544.
Practice. — See p. 195, infra.
The power conferred by this Act can be invoked on behalf
of trustees defendants in an action, although they have not
connterclaimed, or served a third party notice, re Salt, re
Bollason, Molt v. Holt (1897) 2 Ch. 525. It is within the com-
petence of the Court, on such a point being suggested by trustees
either to direct an inquiry, or to give leave to apply as to
enforcing the claim to impound. lb., and see Molyneux v.
Fletcher (1898) 1 Q.B. 648.
For definitions of "trustee" and "trust," see section 50,
infra.
156
Trustee Act, 1893.
Sect. 46.
Jurisdiction
of palatine
and county
courts.
Section 46. — The provisions of this Act with
' respect to the High Court shall, in their application
to cases within the jurisdiction of a palatine court
or county court, include that court, and the pro-
cedure under this Act in palatine courts and county
courts shall be in accordance with the Acts and rules
regulating the procedure of those courts.
This section replaces section 21 of the Trustee Act, 1860
(13 & 14 Vict. c. 60), which section, as to part, was repealed by
the Statute Law Revision Act, 1891, and as to the residue, bv
the present Act section 11 of the Court of Chancery (Lancaster)
Act, 1854 (17 & 18 Vict. c. 82), and section 8 of the Palatine
Court of Durham Act, 1889 (52 & 53 Vict. c. 47), which sections
are repealed by the present Acp. See section 51, and Schedule,
infra.
" High Court."—" The expression ' High Court,' when used
with reference to England or Ireland, shall mean Her Majesty's
High Court of Justice in England or Ireland, as the case may
be." Interpretation Act, 1889 (62 & 53 Vict. c. 63), section
13 (3.)
" Palatine Court." — See Chancery of Lancaster Act, 1890
(53 & 54 Vict. c. 23), and the Palatine Court of Durham Act,
1889 (52 & 53 Vict. c. 47) ; and see also Judicature Act, 1873
(36 & 37 Vict. c. 66), sections 17 and 18.
" County Courts."— See County Courts Act, 1888 (51 & 52
Vict. c. 43), sections 67 and 68, which give jurisdiction to the
County Court in cases where the trust estate or fund does not
exceed £600 in amount or value; and see the County Court
Rules, 1903, Order 38.
Sect. 47.
Application
to trustees
under
Settled
Land Acts
of provisions
as to ap-
pointment
of trustees.
Part IV.
Miscellaneous and Supplemental.
Section 47. — (1.) All the powers and provisions
contained in this Act with reference to the appoint-
ment of new trustees, and the discharge and retire-
ment of trustees, are to apply to and include trustees
for the purposes of the Settled Land Acts, 1882 to
1890, whether appointed by the Court or by the
settlement, or under provisions contained in the
settlement.
Trustee Act, 1893. 157
(2.) This section applies and is to have effect Sect. 47.
with respect to an appointment or a discharge and
retirement of trustees taking place before as well as
after the commencement of this Act.
(3.) This section is not to render invalid or
prejudice any appointment or any discharge and
retirement of trustees effected before the passing of
this Act, otherwise than under the provisions of
the Conveyancing and Law of Property Act, 1881.
The Conveyancing and Law of Property Act, 1881 (sections
31 and 32) contained provisions for the appointment, discharge,
and retirement of trustees. In re Wilcock, 34 Ch. D. 508,
North, J., donhted whether new trustees conld be appointed
under those sections for the purposes of the Settled Land Act,
and this case "was followed in re Kane's Trusts, 21 L.R. Ir. 112.
The Settled Land Act, 1890, section 17, provided that all the
powers and provisions contained in the Conveyancing and Law
of Property Act, 1881, with reference to the appointment of
new trustees, and the discharge and retirement of trustees,
were to apply to trustees for the purposes of the Settled Land
Acts, 1882 to 1890. This section 17 contained subsections
2 and 3, identical in language with subsections 2 and 3
above. Sections 31 and 32 of the Conveyancing and Law of
Property Act, 1881, and section 17 of the Settled Land Act,
1890, are repealed by section 51 of the present Act.
" All the Powers and Provisions contained in this Act." —
See sections 10 to 12, and 25, 26, and 35 above.
The present section, unlike the repealed section 17 of the
Settled Land Act, 1890, applies to appointments by the Court,
as well as to those by individuals. Appointments of Settled
Land Act trustees by the Court will usually be made under
section 38 of the Settled Land Act, 1882, which is as
follows : —
" (1) If at any time there are no trustees of a settlement
within the definition in this Act, or where in any other case it
is expedient, for purposes of this Act, that new trustees of
a settlement be appointed, the Court may, if it thinks fit, on
the application of the tenant for life, or of any other person
having under the settlement an estate or interest in the
settled land, in possession, remainder, or otherwise, or in the
case of an infant of his testamentary or other guardian or next
friend, appoint fit persons to be trustees under the settlement
for purposes of this Act.
" (2) The persons so appointed, and the survivors and
survivor of them, while continuing to be trustees or trustee,
and, until the appointment of new trustees, the personal repre-
sentatives or representative for the time being of the last
158 Trustee Act, 1893.
Sect. 47. surviving or continning trustee, shall, for purposes of this Act,
become and be the trustees or trustee of the settlement."
See also notes, p. 202, infra,
" Appointment of New Trustees." — As to the persons who
can properly be appoiuted trustees for the purposes of the
Settled Land Acts, it would appear that the general rules
applicable to the appointment of new trustees, and noted under
sections 10 and 25, supra, must be adhered to, for " the appoint-
ment of trustees for the purpose of the Settled Land Acts is
required to impose a check upon the extensive powers conferred
by the Act upon the tenant for life." Cotton, L.J., in re Kemp's
Settled Estates, 24 Ch. D. 485, 487. Thus in Wheelright v. Walker,
23 Ch. D. 752 (reported sub nom, re Walker's Trusts, 48 L.T. N.S.
632 ; 31 W.R. 716), the Court refused to appoint the solicitor of
the tenant for life to be one of the trustees, where a person
interested in remainder objected. In re Kemp's Settled Estates,
24 Ch. D. 485, the Court of Appeal refused to appoint the
solicitor of the tenant for life to be one of the trustees. Iq a
special case, however, the Court will appoint as one of the
trustees the solicitor of the tenant for life, re Marquis of Ailes-
lury (1893) 2 Ch. 345, and although such an appointment will
only be made by the Court in exceptional cases, it will not, if
made by an individual donee of a power to appoint, be
necessarily invalid, re Earl of Stamford (1896) 1 Ch. 288. That
in no case can a tenant for life or a person who may become
tenant for life be appointed trustee of a settlement for the
purposes of the Settled Land Act, was laid down as a rule of
the Court by Pearson, J., in re Marrop's Trusts, 24 Ch. D. 717,
and this was followed in re Thompson's Will, 21 L.E. Ir. 109.
In re Knowles's Settled Estates, 27 Ch. D. 707, the Court objected
to appoint two brothers trustees, on the ground that there
should be two independent trustees. In exceptional circum-
stances the Court has appointed as Settled Land Act trustees
persons domiciled in Australia, re Whitchurch (1897) 1 Ch. 256.
Subsections 2 and 3. — The necessity for the introduction of
these subsections is not obvious. They were necessary in the
Settled Land Act, 1890, as the intention of that Act was to
^ declare that the Conveyancing and Law of Property Act, 1881,
should be deemed to have applied to the appointment of Settled
Land Act trustees from its commencement, whilst saving any
appointments made not in accordance with section 31 of that
Act. As section 17 of the Settled Land Act, 1890, was in
operation until its repeal by the present Act, there would
appear to be no reason for making the present section retro-
spective, unless it could be maintained that the revocation of
the subsection 2 of section 17 of the Settled Land Act, 1890,
removed the protection given to appointments made in accord-
ance with the Act of 1881 prior to 1890. As against such a
contention, see section 38 of the Interpretation Act, 1889 (52
& 53 Vict. c. 63), p. 170, infra. Whether (assuming snch a
contention is possible) the present subsection 2 could operate
Trustee Act, 1893. 159
retrospectively so as to avoid the difficulty, seems at least Sect. 47.
doubtful, for in effect it provides that the earlier provisions of —
the present Act, as to appointment, discharge, and retirement of
trustees, are to apply, and to be held to have always applied,
to the appointment of Settled Land Act trastees. But those
earlier provisions are not themselves retrospective, and if the
same method of construction is applied as that adopted by
Halsbury, L.C., in Smith v. Callmder (1901) A.O. 303, 304,
in constructing another Act, the result would appear to be that
these subsections do not give the protection desired. The
questions thus raised are not likely to be of practical import-
ance, but illustrate the confusion introduced by adopting in a
later Act the language of an earlier Act, passed in different
circumstances, and in a different state of the law.
For definition of " trustee," see section 50, infra.
Section 48. — Property vested in any person on Sect. 48
any trust or by way of mortgage shall not, in case ""
of that person becoming a convict within the mean- not'affeo'ted^
ing of the Forfeiture Act, 1870, vest in any such by trustee
administrator as may be appointed under that Act, convTot° ^
but shall remain in the trustee or mortgagee, or
survive to his co-trustee or descend to his represen-
tative as if he had not become a convict ; provided
that this enactment shall not affect the title to the
property so far as relates to any beneficial interest
therein of any such trustee or mortgagee.
This section replaces sections 46 and 47 of the Trustee
Act, 1850 (13 & 14 Vict. c. 60), which sections are repealed by
the present Act. See section 51, and Schedule, infra.
By an Act 4 and 5 Will. 4. c. 23, after a recital to the effect
that " great inconvenience had been found to result to persons
beneficially entitled to real or personal property by the escheat-
ing or forfeiture thereof to His Majesty, to corporations, to
lords of manors and others, in consequence of the death without
heirs, or the conviction for treason or felony of a trustee ia
whom or in whose name the same is vested," it is provided as
follows : section 3, " And be it further enacted that no land,
chattels, or stock vested in any person upon any trust or by
way of mortgage, or any profits thereof, shall escheat or be
forfeited to His Majesty, his heirs, or successors, or to any
corporation, lord of a manor, or other person, by reason of the
attainder or conviction for any offence of such trustee or
mortgagee, but shall remain in such trustee or mortgagee, or
survive to his co-trustee, or descend or vest in his representative,
as if no such attainder or conviction had taken place ; " and
section 5, "Provided always, and be it hereby enacted that
160 Trustee Act, 1893.
Sect. 48. nothing contained in this Act shall prevent the escheat or
forfeiture of any land, chattels, or stock vested in any snoh
trustee or mortgagee, so far as relates to any 'beneficial interest
therein of any such trustee or mortgagee, but such land,
chattels, or stock, so far as relates to any such beneficial
interest, shall be recoverable in the same manner as if this Act
had not passed."
The Trustee Act, 1850, by section 1 repealed the above two
sections of 4 and 5 Will. 4. c. 23, and by sections 46 and 47
replaced them, with verbal amendments.
The Trustee Extension Act, 1852, by section 8 gave power
to the Court, by order, to appoint a new trustee in the place of
a convict, with an added proviso that " such order shall have
the same effect as to lands as if the convict trustee had been
free from any disability, and had duly executed a conveyance
or assignment of his estate and interest in the same."
The Forfeiture Act, 1870 (33 & 84 Vict. c. 23), by section 1
generally abolishes forfeiture and escheat except in cases of
outlawry ; by section 6 defines " convict " as meaning any person
against whom, after the passing of that Act, judgment of death
or of penal servitude shall have been pronounced or recorded
by any Court of competent jurisdiction in England, Wales, or
Ireland, upon any charge of treason or felony ; by section 8
provides that no convict, subject to the operation of that Act,
shall be capable of alienating any property ; by sections 9 and
10 for the vesting of the convict's property in an administrator
appointed by the Court ; and by other sections for the
administration of the property by the administrator.
In re Levy and Debenture Corporation's Contract, 38 S.J. 580,
North, J., in the course of his judgment said : " Before 4 and 5
Will. 4. o. 28, the inconveniences recited in the preamble to
that statute were felt. The matter was then dealt with by the
Trustee Act, 1850, section 46, and the Trustee Extension Act,
1852, section 8, which looks as if the author of that Act
thought that a convict was under some disability. But under
section 1 of the Trustee Extension Act, 1852, it has been held
that ' as if free from disability ' applies to a person under no
disability at all. Section 48 of the Trustee Act, 1893, repeals
those Acts, but follows out the lines of the old Acts. It is said,
however, that the Forfeiture Act of 1870 applies, and that the
property is vested in the convict's administrator. In my
opinion, if it had been intended to change the well-established
practice, the Act would have expressly said so. Other persons
who might be trustees of the same property would not have
been ignored if the Act had been intended to relate to them.
Moreover, by other sections of the Act absolute power is given
to the administrator to convey or mortgage. It is simply
outrageous to suppose that the Legislature authorised the
administrator to pay the costs of the prosecution, to make
allowances for the support of the convict's family, and to make
good amounts of which people have been defrauded by the
convict, out of property of which the convict was a trustee. I
Trustee Act, 1893. 161
must read the Act as a rational Act, and not as one providing Sect. 48.
for the maintenance of the convict out of the trust estate."
The result, therefore, appears to be that the present section,
and the corresponding sections replaced by it, are merely
declaratory of the law, since apart from their provisions a
trustee who is made a convict was, and is, under no disability
as regards the trust estate.
As to the power of the Court to replace a felon trustee, see
section 25, supra, and notes thereto ; and as to replacing such a
trustee without the assistance of the Court, see section 10,
supra, and notes thereto.
For definitions of "property," "mortgage," "mortgagee,"
and " trustee," see section 50, infra.
Section 49. — This Act, and every order pur- Sect. 49.
porting to be made under this Act, shall be a
complete indemnity to the Banks of England and ^'^«"'°"y-
Ireland, and to all persons for any acts done pur-
suant thereto ; and it shall not be necessary for the
Bank or for any person to inquire concerning the
propriety of the order, or whether the Court by
which it was made had jurisdiction to make the
same.
Provisions indemnifying the Banks of England and Ireland
were contained in the Irish Trustee Relief Act (11 & 12 Vict.
c. 68), in the further Trustee Eelief Act (12 & 13 Vict. c. 74),
and in section 20 of the Trustee Act, 1850 (13 & 14 Vict. c. 60).
The present section replaces these and section 7 of the Trustee
Extension Act, 1852 (15 & 16 Vict. c. 55), which latter section
was similar in form and effect to the present section, except that
it was limited to acts done pursuant to the Trustee Act, 1850,
and the Trustee Extension Act, 1852.
This section applies in particular to the case of transfers
directed under sections 35 and 42 of this Act. See notes to
subsections 3 and 4 of section 35, supra, pp. 136, 137.
As to the making of an order being, in certain cases, con-
clusive evidence of the facts on the allegation of which it
is founded, see section 40, supra.
Section 50. — In this Act, unless the context Sect. 50.
otherwise requires, — ~
The expression " bankrupt " includes, in Ireland, i>«'^"'°'i«-
insolvent :
The expression " contingent right," as applied to
land, includes a contingent or executory interest,
a possibility coupled with an interest, whether the
M
162 Trustee Act, 1893.
Sect. 50. object of the gift or limitation of the interest, or
possibility is or is not ascertained, also a right of
entry, whether immediate or future, and whether
vested or contingent :
The expressions " convey " and " conveyance "
applied to any person include the execution by that
person of every necessary or suitable assurance for
conveying, assigning, appointing, surrendering, or
otherwise transferring or disposing of land whereof
he is seised or possessed, or wherein he is entitled to
a contingent right, either for his whole estate or for
any less estate, together with the performance of all
formalities required by law to the validity of the
conveyance, including the acts to be performed by
married women and tenants in tail in accordance
with the provisions of the Acts for abolition of fines
and recoveries in England and Ireland respectively,
and also including surrenders and other acts which
a tenant of customary or copyhold lands can himself
perform preparatory to or in aid of a complete
assurance of the customary or copyhold land :
The expression " devisee ' includes the heir of
a devisee and the devisee of an heir, and any person
who may claim right by devolution of title of a
similar description :
The expression "instrument" includes Act of
Parliament :
The expression " land " includes manors and
lordships, and reputed manors and lordships, and
incorporeal as well as corporeal hereditaments, and
any interest therein, and also an undivided share of
land :
The expressions " mortgage " and " mortgagee "
include and relate to every estate and interest
regarded in equity as merely a security for money,
and every person deriving title under the original
mortgagee :
The expressions "pay" and "payment" as
applied in relation to stocks and securities, and in
connection with the expression " into court," include
the deposit or transfer of the same in or into court :
Trustee Act, 1893. 163
The expression " possessed " applies to receipt of Sect. 60.
income of, and to any vested estate less than a life
estate, legal or equitable, in possession or in ex-
pectancy, in, any land :
The expression "property" includes real and
personal property, and any estate and interest in
any property, real or personal, and any debt, and
any thing in action, and any other right or interest,
whether in possession or not :
The expression " rights " includes estates and
interests :
The expression "securities" includes stocks,
funds, and shares ; and, so far as relates to payments
into Court, has the same meaning as in the Court of
Chancery (Funds) Act, 1872 :
The expression " stock " includes fully paid up
shares ; and, so far as relates to vesting orders made
by the Court under this Act, includes any fund,
annuity, or security transferable in books kept by
any company or society, or by instrument of transfer
either alone or accompanied by other formalities,
and any share or interest therein :
The expression "transfer," in relation to stock,
includes the performance and execution of every
deed, power of attorney, act, and thing on the part
of the transferor to effect and complete the title in
the transferee :
The expression " trust " does not include the
duties incident to an estate conveyed by way of
mortgage ; but with this exception the expressions
" trust " and " trustee " include implied and con-
structive trusts, and cases where the trustee has
a beneficial interest in the trust property, and the
duties incident to the office of personal representa-
tive of a deceased person.
This section is not a " definition clause." It ought rather
to be called an " expounding clause " : Chitty, J., in re Merchant's
Trusts and New British Iron Oo., 38 S.J. 253. That the effect of
a clause such as the present is to leave to the word interpreted
its ordinary meaning, as well as the added meaning, see re-
marks of Selborne, L.O., in Bohinson v. Local Board of Barton
164 Trustee Act, 1893.
Sect. 50. Eceles, 8 App. Cas. at p. 801, and of Ester, M.R. in Badger
V. Harrison (1893) 1 Q.B. at p. 167.
It must be remembered that tlie proYisions of the Interpre-
tation Act, 1889 (52 & 53 Vict. c. 63), apply to the present Act,
and contain definitions of the expressions "land," "Bank of
England," "Bank of Ireland," "India," " mnnicipal borough,"
"High Court," "Rules of Court," "person," "writing,"
" felony," " county courb," " short title," and " commencement."
" Bankrupt." — This expression is used ia section 25 (Appoint-
ment of New Trustees).
" Contingent Right." — This phrase occurs in sections 26, 27,
30, and 33, and in the definition of " conveyance " in this section.
This definition is taken from the Trustee Act, 1850 (13 <fe 14
Vict. c. 60), section 2. It includes rights which, together with
" a future interest," are enumerated in section 6 of the Real
Property Act, 1845 (8 & 9 Vict. c. 106), and thereby made
capable of disposition by deed. Although under the last-men-
tioned Act a right of entry for forfeiture was held not to be
included in the expression " a right of entry " (see remarks of
Jessel, M.R., in Jenkins v. Jones, 9 Q.B.D. at p. 131), there
appears to be no reason for so restricting the meaning of the
phrase in the present Act.
All rights of unborn and unascertained persons are neces-
sarily contingent rights.
As to the distinction between a spes successionis and a con-
tingent estate or interest, see Clowes v. Milliard, 4 Ch. D. 413,
and re Parsons, StocTdey v. Parsons, 45 Ch. D. 51. Since, how-
ever, the expression "contingent right" is applied in section 27
to the rights of unborn persons (see note, " TJnborn persons," to
section 27, supra, p. 112), it would seem clear that the phrase,
as used in the present Act, is sufficiently wide to include a mere
spes successionis.
For definition of " land " and " rights," see supra.
" Convey and Conveyance." — This definition combines the
separate definitions of conveyance and assignment in the Trustee
Act, 1850 (13 & 14 Vict. c. 60), section 2.
The words occur in sections 12, 16, 18, 26, 29, 31, 32, 33, 34,
and 38.
Where an order is made vesting, or appointing a person to
convey, the estate of an infant tenant in tail in possession, the
efiect is to bar the estate tail and remainders over, Powell v.
Matthews, 1 Jur. N.S. 973; re Montagu, FaberY. Montagu (1896)
1 Ch. 549.
The meaning of the phrase " convey and conveyance," as
applied to copyholds, was discussed in Bowley v. Adams, 14
Beav. 130.
For definitions of " land," " possessed," and " contingent
right," see supra.
" Devisee." — The definition of " devisee " in the Trustee Act,
1850 (13 & 14 Vict. c. 60), section 2, is as foUows : " The word
Trustee Act, 1893. 165
• devisee ' sLall, in addition to its ordinary signification, mean Sect. 50.
the heir of a devisee and the devisee of an heir, and generally
any person claiming an interest in the lands of a deceased
person, not as heir of such deceased person, but by a title
dependent solely upon the operation of the lavfs concerning
devise and descent." The alteration in the language of the
definition is presumably intended to include a personal repre-
sentatiye of a devisee, and a personal representative of an
heir of a deceased trustee, dying before section 30 of the Con-
veyancing and Law of Property Act, 1881, came into operation.
The present definition is not expressly restricted to land,
but the sections in which the word " devisee " occurs only deal
with land.
For definition of " rights," see, swpra, p. 163.
" Instrument."— The expression " instrument," as used in the
Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c.
41), is expressed by section 2 of that Actio include "deed, will,
enclosure award, and Act of Parliament." The word in its
ordinary signification includes deed, wUl, and codicil.
The word occurs in sections 1, 3, 4, 5, 10, 11, 13, 17, 18, 21,
22, 24, 37, and 44.
" Land." — The word " land " as used in the Trustee Act,
1850 (13 & 14 Vict. c. 60), is defined by section 2 of that Act to
include " manors, messuages, tenements, and hereditaments,
corporeal and incorporeal, of every tenure and description, what-
ever may be the estate or interest therein." By virtue of section
2 of the Conveyancing and Law of Property Act, 1881 (44 & 45
Vict. c. 41), the expression "land" in that Act included " land
of any tenure and tenements and hereditaments corporeal and
incorporeal, and houses and other buildings, and an undivided
share of land," and the expression "manor" in that Act in-
cluded " lordship and reputed manor or lordship." Section 3
of the Interpretation Act, 1889 (52 & 53 Vict. c. 63), provides
that in any Act passed after the year 1850 the expression
" land " shall, unless the contrary intention appears, include
" messuages, tenements and hereditaments, houses and buildings
of any tenure."
By virtue of the definition clauses in the Interpretation
Act, 1889, and the present Act, the expression " land " in the
present Act has therefore a widely extended meaning ; it will
include, e.g., a right of way (see Jones v. Watts, 43 Ch. D. 574),
a rent-charge (see re Harrison, Seton, 6th edit., p. 1213), and
leaseholds (see re Bathhone, 2 Ch. D. 483). In framing vesting
orders under the Act it must be remembered that the word
"land," if used in such vesting order, may not have the same
extended meaning, and the addition of the other apt words
may be necessary (see re Harrison, cited above) .
The word " land " occurs in sections 6, 12, 26 to 34, 36, 38,
39, 40, 41, and 44.
" Mortgage and Mortgagee." — This definition is virtually
166 Teustee Act, 1893.
Sect. 60. identical -with that contained in section 2 of the Trustee Act,
1850 (13 & U Vict. c. 60). See re Underwood, 3 K. & J. 475 ;
Lawrence v. Galsworthy, 3 Jur. N.S. 1049.
These words occur in sections 5, 6, 9, 12, 19, 29, 30, 40, and
48, and in the definition of " trust."
"Pay and Payments." — ^As to payment into Court, see
section 42.
For definitions of " stocks," " securities," and " transfer,"
see supra, p. 163.
" Possessed."— In the Trustee Act, 1850 (13 & 14 Vict. c.
60), when vested freehold estates are being dealt with, the
expression " seized of " is employed (see definition of " seized "
in section 2 of that Act) ; when vested leasehold estates are
being dealt with, the expression "possessed of" is employed
(see definition of " possessed " in section 2 of that Act) ; when
contingent interests are being dealt with, the expression
" entitled to " is employed.
In the present Act there is no definition of the word
" seized," which is only used in the definition of " conyey " in the
present section. In sections 26, 27, 28, and 30 the word " seized "
is replaced by the expression " entitled to," which expression is
not defined in the present Act, and is apparently applicable
to freehold and leasehold estates and interests, whether in
possession or reversion, and whether vested or contingent.
The word " possessed " is retained in the present Act, but
the definition of it contained in section 2 of the Trustee Act,
1850, is amended by the addition of the words "receipt of
income." The effect of this addition appears to be to make the
expression applicable to freeholds as weU as leaseholds. The
expression " receipt of income " is presumably borrowed from
section 2, subsection (iii.) of the Conveyancing and Law of
Property Act, 1881 (44 &■ 45 Vict. c. 41). Why it was thought
necessary to introduce these words is by no means clear,
especially as the expression " possessed of " is not used in the
present Act in any section taken from the Conveyancing and
Law of Property Act, 1881, but is only used in sections taken
from the Trustee Act, 1850.
The result appears to be that the accurate language of the
Trustee Act, 1850, has been abandoned in favour of language
which is by no means clear or accurate. Thus the word
" possessed " in the present Act applies to vested interests in
possession or reversion in leaseholds, but only to receipt of
income of freeholds.
The expression " possessed of " occurs in sections 26, 27, 28,
and 30, and in the definition of " convey," supra, p. 162. The
word " possession " is used in its ordinary restricted sense in
section 29, and in the definition of " property," supra.
For definition of " land," see supra, p. 162.
" Property." — The earlier part of this definition is identicjal
with that in the Conveyancing and Law of Property Act, 1881
Trustee Act, 1893. 167
(44 &_45 Vict. c. 41), section 2. The words "whether in Sect. 50.
possession or not " occur in the definition in the Conveyancing
Act, 1882 (45 & 46 Vict. c. 39), section 1. The word " property "
is used in sections 5, 8, 10, 11, 12, 13, 17, 18, 20, 21, 37,
and 48,
" Rights." — This word occurs in sections 31 and 32.
" Securities."— Section 3 of the Court of Chancery Funds
Act, 1872 (35 & 36 Vict. c. 44), contains the following defini-
tion of _ " securities " as used in that Act : " The term
' securities ' includes Government securities and any security of
any Foreign State, any part of Her Majesty's Dominions out
of the United Kingdom, or any body corporate, or company,
or standing in books kept by any body corporate or any
person in the United Kingdom, and all stocks, funds, and
effects."
The word " securities " used in the Conveyancing and Law
of Property Act, 1881 (44 & 45 Vict. c. 41), was expressed
by section 2 of that Act to include "stocks, funds, and
shares."
The word "securities" occurs in sections 1, 2, 5, 19, 20, 24,
and 42.
For definitions of " stock " and " payment," see supra,
pp. 162, 163.
"Stock." — The expression "stock" as used in the Trust
Investment Act, 1889 (52 & 53 Vict. c. 32), was expressed by
section 9 of that Act to include fully paid-up stares. The
expression as used in the Trustee Act, 1850 (13 & 14 Vict.
c. 60), was expressed by section 2 of that Act to mean any fund,
annuity, or security transferable in books kept by any company
or society established or to be established, or transferable by
deed alone, or by deed accompanied by other formalities, and any
share or interest therein.
The definition of "stock" in the Trustee Act, 1850, was
held to include shares in a limited company whether fully paid
up or not, re New Zealand Trust and Loan Company (1893)
1 Ch. 403 ; re Oregson (1893) 3 Ch. 233 ; and the word in
the present Act, so far as relates to vesting orders, has doubt-
less the same effect.
Section 10 of the Merchant Shipping Act, 1855 (18 & 19
Vict. c. 91), provides that any shares registered under the
Merchant Shipping Act, 1854, should be deemed to be included
in the word " stock " as expressed by the Trustee Act, 1850.
Although this extended meaning is not given to the word by
the present definition, this is done by the provisions of section
35, subsection 6, supra, p. 131.
The word " stock " occurs in sections 1, 2, 5, and 12, where
i^ will include only fully paid-up shares, and in sections 35, 36,
and 39, ■?rhere it will include shares whether fully paid up or
not. The word also occurs in the definition of "transfer,"
supra.
168 Trustee Act, 1893.
Sect. 50. " Transfer." — The language of this definition is taken from
the definition of "transfer" in section 2 of the Trustee Act,
1850 (13 & 14 Vict. c. 60), and from section 6 of the Trustee
Extension Act (15 & 16 Vict. c. 55).
The expression is used in relation to " stock " in sections 35
and 42, and in the definition of " payment," supra, p. 162.
For definitions of " pay " and " stock," see supra, pp. 162, 163.
" Trust and Trustee." — The present definition is virtually
identical with that contained in section 2 of the Trustee Act,
1850 (13 & 14 Vict. 0. 60). No such definition was contained
in the Conveyancing and Law of Property Act, 1881 (44 & 45
Vict. c. 41). Tor the definition in the Trustee Act, 1888, see
p. 4, supra. As pointed out in the notes to the several sections,
some provisions of the Act apply only to particular classes of
trustees ; thus sections 1 to 9 deal only with trustees for invest-
ment purposes, see note, " A trustee . . . may invest," ante, p. 18 ;
sections 10 to 12 do not, it is submitted, apply to constructive
trustees, nor to executors or administrators, see note, " A
trustee," anie, p. 50; sections 13 and 17 to 19 apply only to
trustees under instruments, see notes, "A trustee," ante, pp. 68,
77, 79, 81 ; section 16 deals only with bare trustees, and section
25 expressly excludes executors and administrators.
As to Mortgages. — In consequence of the reference in
4- & 5 Will. 4. c. 23 to section 8 of Lord St. Leonards's Trustee
Act (11 Geo. 4. and 1 Will. 4. c. 60), a doubt was raised
whether the word " trustee " in the last-mentioned Act did not
include a mortgagee. This doubt was only set at rest by the
passing of a supplementary Act, 1 & 2 Vict. c. 69. See Spunner v.
Walsh, 10 Ir. Eq. Baps. 214. It was presumably to avoid any
such doubt as to the meaning of the word "trustee," as used
in the Trustee Act, 1860, that the exception of " the duties
incident to an estate conveyed by way of mortgage " was
inserted in the definitions of " trust " in section 2 of that Act.
Upon general principles of law, so long as merely an equity of
redemption remains in the mortgagor, the mortgagee is not a
trustee for him, Warner v. Jacob, 20 CD. 220, but when the
mortgage moneys have been repaid by the mortgagor, together
with interest and costs, the mortgagee is trustee of the property
for the mortgagor, re Brooke and Fremlin (1898) 1 Ch. 647. In
cases in which the present definition applies the evidence of the
payment oS must be complete before the Court will hold such
a mortgagee to be a trustee. Thus where a mortgage of real
estate was made to two persons not trustees, one of whom
afterwards went abroad, and the property was sold by the
mortgagor, and so much of the purchase-money as was payable
to the mortgagees was invested in their joint names, it was held
that the Court had no jurisdiction, upon a petition presented
under the Trustee Act, 1850, by the mortgagor and the mortgagee
within the jurisdiction, in the absence of the other mortgagee,
to make an order vesting in the purchaser the estate of the
absent mortgagee, re Osborn's Mortgage Trust, 12 Eq. 392.
Trustee Act, 1893. 169
In a similar case, where the mortgagees were trustees of the Sect. 50.
money lent, the absent trustee mortgagee was held to be a
trustee of the legal estate vested in him by the mortgage,
re Walker, 3 Ch. D. 209. A deed may, of course, be so framed
that it will operate as a trust for sale and conversion, and not
merely as a mortgage deed, and in such case the mortgagee
may be a trustee within the Act, re Underwood, 3 K. & J. 745,
but a security, in the form of a trust for sale but in substance
a mortgage, does not create a trust within the meaning of the
Statute of Limitations (3 & 4 Will. 4. c. 27), nor, presumably,
within the meaning of this Act, Locking v. Parker, 8 Ch. 30.
Where a mortgagee has sold under his power of sale, and has
paid himself his debt and costs out of the purchase-money, he
is a trustee of the surplus remaining in his hands. Locking v.
Parker (cited above) ; Charles v. Jones, 35 Ch. D. 544 ; Thome
V. Heard (1894) 1 Ch. 599 ; (1895) A.C. 498. It is submitted
that such a mortgagee is a trustee of such surplus moneys
within the meaning of the present Act. Where the mortgage
security and the mortgage debt become vested in different
persons, e.g. in the heir and the personal representative of a
deceased mortgagee, the person in whom the security is vested
may be held a trustee of the security for the other person,
re Skitter, 4 W.R. 791.
The language of the definition appears to have no application
to the estate or duties of the mortgagor, London and County
Banking Co. v. Ooddard (1897) 1 Ch. 642, in which case
North, J., made the following comment : " Now it is said that
by section 50, the interpretation clause, the expression ' trust '
does not include the duties incident to an estate conveyed by
way of mortgage. This is the old definition of trust from the
time of the earliest Trustee Act — a definition well understood
in Courts of Equity. I have always understood it to refer to
the principle that during the continuance of a mortgage there
is no relationship of trustee and cestui que trust between
mortgagor and mortgagee. It is quite clear that if lands in
mortgage are sold by the mortgagee, there may be surplus
proceeds, of which the mortgagee becomes trustee ; or after
the money has been paid off, if the land had not been re-
conveyed, there might be a trust of it in the mortgagee. In
my opinion this definition relates exclusively to an estate
conveyed by way of mortgage, while that mortgage security
continues to exist as such. Again, the provision is that a trust
does not include the duties incident to the estate. It does not
say that no trust shall be created in addition to those
incidental duties. I do not see any expression to the effect
that a vesting declaration is not applicable to property on
mortgage where the instrument of charge contains an express
trust. If there is the relationship of trustee and cestui que trust
established, there is no reason why the parties should not have
the full benefit of the enactment. In my opinion this limitation
of the word ' trust ' does not apply where, in a deed of charge,
there is an express declaration that the mortgagor will hold the
•'170 Trustee Act, 1893.
Sect. 50. legal eState on trust." So in a case where a mortgagor had
■ covenanted to sarrender copyholds and had received the
mortgage money, he was held to be a trustee for the mortgagee.
In re Crowe's Mortgage, 13 Eq. 26, followed In re D. Jones §/•
Company's Mortgage Trusts (1888) W.N. 217.
In several recent cases it has been held that a married
woman mortgagee is, after receipt of the m.ortgage money, a bare
trnstee of the land for the mortgagor within the meaning of
section 16 of ths present Act, re Brooke and Fremlin's Contract
(1898) 1 Ch. 647 ; re Eowgate and OsJjorn's Contract (1902)
1 Ch. 456 ; re West and Hardy's Contract (1904) 1 Ch. 145.
Although these cases seem to have been decided without
reference to the definition of trustee contained in the Act, it is
submitted that they are authorities for the proposition that a
mortgagee who has been paid ofE is a trustee within the mean-
ing of the Act.
As to Constructive Trusts. — A vendor after contract for sale is
regarded in equity as trustee of the property for the purchaser.
For the purpose of vesting orders under the Act, an important
distinction appears to exist between the cases of sales of land
and sales of personalty. This will be found fully discussed in
the notes to sections 30 and 81, supra, pp. 118-121.
Executors and administrators are, by virtue of this definition,
included in the term " trustee," and the duties incident to their
offices in the term " trust." This raises a question which will
be found discussed in the notes to section 10, supra, p. 50,
whether a power is given by the Act to appoint new trustees
to perform the duties of an executor. See notes to section 25,
supra, p. 102.
For definitions of " mortgage," and " property," see supra. ■
Sect. 51. Section 51. — The Acts mentioned in the schedule
I ~ to this Act are hereby repealed except as to Scotland
^^^* ■ to the extent mentioned in the third column of that
schedule.
As to the effect of a repealing section such as this, see the
Interpretation Act, 1889 (52 & 53 Vict. c. 63), section 11, which
is as follows : (1) " Where an Act passed after the year 1850,
whether before or after the commencement of this Act, repeals
a repealing enactment, it shall not be construed as reviving any
enactment previously repealed, unless words are added reviving
that enactment. (2) Where an Act passed after the year 1850,
whether before or after the commencement of this Act, repeals
wholly or partially any former enactment and substitutes
provisions for the enactment repealed, the repealed enactment
shall remain in force until the substituted provisions come
into operation." Section 38 is as follows : (1) " Where^ this
Act or any Act passed after the commencement of this Act'
repeals and re-enacts, with or without modification, any pro-
visions of a former Act, references in any other Act to the
Trustee Act, 1893. 171
provisions so repealed shall, unless tlie contrary intention Seel. 51.
appears, be construed as references to the provisions oo re- •—
enacted. (2) Where this Act or any Act passed after the
commencement of this Act repeals any other enactment, then,
unless the contrary intention appears, the repeal shall not (a)
revive anything not in force or existing at the time at -which
the repeal takes effect ; or (6) affect the previous operation of
any enactment so repealed or anything duly done or suffered
under any enactment so repealed ; or (c) affect any right,
privilege, obligation, or liability acquired, accrued, or incurred
under any enactment so repealed ; or (d) affect any penalty,
forfeiture, or punishment incurred in respect of any offence
committed against any enactment so repealed ; or (e) affect
any investigation, legal proceeding, or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfei-
ture, or punishment as aforesaid ; and any such investigation,
legal proceeding, or remedy may be instituted, continued,
or enforced, and any such penalty, forfeiture, or punishment
may be imposed, as if the repealing Act had not been
passed."
" Except as to Scotland."— The exception as to Scotland is
of course due to the fact that the present Act does not " extend
to Scotland." See section 52 and notes thereon, infra.
Section 52. — This Act does not extend to Sect. 52.
Scotland.
Extent of
Act.
The Act applies to England and Ireland. As to the Isle of
Man and Channel Islands, see supra, p. 21.
Since the Act does not apply to Scotland, the Acts and
sections of Acts repealed by it are only repealed " except as to
Scotland." See section 51.
Where the Act is merely declaratory of the law, the law
thus declared may be treated as applicable in the case of
Scottish trusts. See dictum of Lord Macnaghten in Wyman v.
Paterson (1900) A.C. at pp. 280, 281.
As to the jurisdiction of the High Court in England and in
Ireland to make vesting orders affecting land in any part
(except Scotland) of His Majesty's Dominions, see section 41,
sitpra, and section 2 of the Trustee Act, 1893, Amendment Act,
1894, infra.
In re Trubee's Trusts (1892) 3 Ch. 55, a vesting order was
made under the Trustee Act, 1850, of property settled by a
Scottish will. Generally as to the jurisdiction of the English
Courts in the matter of Scottish trusts, see Ewing v. Orr-
Ewing, 9 A.C. 34 ; Howden on Trusts, Trustees, and Trustee
Acts ,in Scotland, 1893 edit., pp. 368-384 ; and as to what
decides the question whether a trust is English, Scottish, or
Irish, see the last-cited authority, and cf. Chapman v. Brmone
(1902)1 Ch. 785, 799.
172
Trustee Act, 1893.
Sect. 53. Section 53. — This Act may be cited as the
Trustee Act, 1893.
Short title.
Sect. 54,
Section 54. — This Act shall come into operation
on the first day of January one thousand eight
Ojmmence- hundred and ninety-four.
ment,
Some sections, however, have a retrospective effect. See
section 5 (Enlargement of Express Powers of Investment),
section 8 (Loans and Investments by Trustees), section 9
(Improper Investments), section 12 (Vesting Declarations),
section 17 (Power to authorise Receipt of Money), section 45
(Indemnity by Beneficiary), section 47 (Settled Land Act
Trustees).
Schedule.
SCHEDULE.
Session and Chapter.
36 Geo. 3. c. 52
9 & 10 Vict. c. 101
10 & 11 Vict. c. 32
10 & 11 Vict. c. 96
11 & 12 Vict. c. 68
12 & 13 Vict. c. 74
13 & 14 Vict. c. CO
Title or Short Title.
The Legacy Duty Act,
1796
The Public Money Drain-
age Act, 1846
The Landed Property Im-
proTenient(Ireland)Act,
1847
An Act for better securing
trust funds, and for the
relief of trustees
An Act for extending to
Ireland an Act passed
in the last session of
Parliament, entitled" An
Act for better securing
trust funds, and for the
relief of trustees "
An Act for the further The whole Act.
relief of trustees
Extent of Repeal.
Section thirty-two.
Section thirty-seven.
Section fifty-three.
The whole Act.
The whole Act.
The Trustee Act, 18.50
Sections seven to nineteen,
twenty-two to twenty-
five, twenty-nine, thirty-
two to thurty-six, forty-
six, forty-seven, forty-
nine, fifty-four and fifty-
five ; also the residue
of the Act except so
far as relates to the
Court exercising juris-
diction in lunacy in
Ireland.
Teustee Act, 1893.
173
Session and Chapter.
15 & 16 Vict. c. 55
17 & 18 Vict. c. 82
18 & 19 Vict. c. 91
20 & 21 Vict. c. 60
22 & 23 Vict. c. 35
23 & 24 Vict. c. 38
25 & 26 Vict. c. 108
26 & 27 Vict. c. 73
27 & 28 Viet. c. 114
28 & 29 Vict. c. 78
31 & 32 Vict. c. 40
33&34 Vict, c.71
34&35 Vict.c. 27
37 & 38 Vict. c. 78
38 & 39 Vict. c. 83
40 & 41 Vict. c. 59
43 & 44 Vict. c. 8
44 & 45 Vict. c. 41
TiUe or Short Title.
The Trustee Act, 1852
Extent of Repeal.
Schedule.
The Court of Chancery of
Lancaster Act, 1854
The Merchant Shipping
Act Amendment Act,
1855
The Irish Bankrupt and
Insolvent Act, 1857
The Law of Property
Amendment Act, 1859
The Law of Property
Amendment Act, 1860
An Act to confirm certain
sales, exchanges, parti-
tions, and enfranchise-
ments hy trustees and
others
An Act to give further
facilities to the holders
of Indian stock
The Improvement of Land
Act, 1864
The Mortgage Dehenture
Act, 1865
The Partition Act, 1868
The National Debt Act,
1870
The Debenture Stock Act,
1871
The Vendor and Purchaser
Act, 1874
The Local Loans Act,
1875
The Colonial Stock Act,
1877
The Isle of Man Loans
Act, 1880
The Conveyancing and
Law of Property Act,
1881
Sections one to five, eight,
and nine ; also the re-
sidue of the Act except
so far as relates to the
Court exercising juris-
diction in lunacy in
Ireland.
Section eleven.
Section ten, except so far
as relates to the Court
exercising lurisdictiou
in lunacy in Ireland.
Section three hundred and
twenty-two.
Sections twenty-six, thirty
and thirty-one.
Section nine.
The whole Act.
Section four.
Scetion sixty so far as it
relates to trustees ; and
section sixty-one.
Section forty.
Section seven.
Section twenty-nine.
The whole Act.
Sections three and six.
Sections twenty-one and
twenty-seven.
Section twelve.
Section seven, so far as it
relates to trustees.
Sections thirty-one
thirty-eight.
to
174
Trustee Act, 1893.
Schedule.
Session and Chapter.
Title or Short Title.
Extent of Bepeal.
45 & 46 Vict. c. 39
The Conveyancing Act,
1882
Section five.
46 & 47 Vict. c. 52
The Bankruptcy Act, 1883
Section one hundred and
forty-seven.
51 & 52 Viet. c. 59
The Trustee Act, 1888
The whole Act, except
sections one and eight.
52 & 58 Vict. c. 32
The Trust Investment Act,
1889
The whole Act, except
sections one and seven.
52 & 53 Vict. c. 47
The Palatine Court of
Durham Act, 1889
Section eight.
53 & 54 Viet. c. 5
The Lunacy Act, 1890
Section one hundred and
forty.
53 & 54 Vict. c. 69
The Settled Land Act,
1890
Section seventeen.
55 & 56 Vict. c. 13
The Conveyancing and
Law of Property Act,
1892
Section six.
TRUSTEE ACT, 1893, AMENDMENT ACT,
1894.
57 Vict. c. 10.
An Act to amend the Trustee Act, 1893.
[18tli June, 1894.]
Be it enacted by the Queen's most Excellent
Majesty, by and witb the advice and consent of
the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the
authority of the same, as follows : —
Section 1. — In section thirty of the Trustee Act, Sect. 1.
1893, the words "as heir, or under the will of a
deceased person, for payment of whose debts the ^f™g°^"^*
judgment was given or order made " shall be vict. u. 53.
repealed. '• ^''•
See notes to section 30 of the Trustee Act, 1893, p. 117,
Section 2. — The powers conferred on the High Sect. 2.
Court in England by section forty-one of the Trustee
Act, 1893, to make vesting orders as to all land and to^jreitndof
personal estate in Her Majesty's dominions except 56 & 57 Viot.
Scotland, are hereby also given to and may be "' ^^' ^" *^'
exercised by the High Court in Ireland.
See notes to section 41 of tlie Trustee Act, 1893, p. 143,
sujira.
Section 3. — In section forty-four of the Trustee Sect. 3.
Act, 1893, after the word " trustee" in the first two
places where it occurs shall be inserted the words '*^^''?'?S''*
f , „ of 56 & 57
*' or other person. Vict. o. 53.
a. a.
See notes to section 44 of the Trustee Act, 1893, p. 150,
su^ra.
176
Trustee Act, 1893,
Sect. 4.
Liability of
trustee in
case of
change of
character of
investment.
Section 4. — A trustee shall not be liable for
" breach of trust by reason only of his continuing to
hold an investment which has ceased to be an
investment authorised by the instrument of trust or
by the general law.
The immediate object of this enactment was, it is believed,
to set at rest any doubts as to the pi'opriety of the retention by
tnistees of investments described in section 1, sabsection (g}
of the Trustee Act, 1893. The language of the present section
is -wide, and would apparently cover the case of investments
which from any cause whatever have ceased to be investments
authorised.
The subject of the duty of trustees as to the retention of
investments is not one with which the Legislature has ever dealt
as a whole, nor one upon which any clear general principle has
ever been pronounced by the Court. Both the Legislature and
the Court have from time to time laid down rules for ascertain-
ing the propriety of new investments, but these rules are not
expressly made applicable to the retention of existing securities.
It would indeed appear obvious that where an investment is
one which might be properly made at the moment, it is one
which may be properly retained. When, however, the invest-
ment is not one which could be properly made at the moment,
the question arises whether it can be properly retained. There
is no principle that in the absence of direction to the contrary
a trustee is bound to realise investments which are not such
investments as might properly be made at the moment. Such
an obligation would appear to arise only in one of the following
ways : (1) under an express direction to convert, (2) under such
a direction implied in the fact that the trusts are declared by
will of a residuary personalty given as one fund for persons in
succession, or (3) where the security of the fund demands such
a course. Where there is an express direction to convert into
money and invest, it must of course be strictly complied with,
though if the trustees are given a discretion as to the time of
sale, the Court will not interfere with its exercise, re Margreaves
(1901) 2 Ch. 547, n. Where there is no such express direction,
but only such a direction implied in the limitation of the
beneficial interest in residuary personalty to persons in succes-
sion, it is the duty of trustees, with all convenient speed, to get
in and invest on trustee securities any existing investments of
a risky, fluctuating, or wasting nature, but not necessarily all
investments which are not of a nature authorised for the invest-
ment of trust moneys. Howe v. Lord Dartmouth, 7 Ves. 137.
Where the trust is for persons in succession, but is declared of
specific property, and not of an undefined fund (cf. Pickering v.
Pickering, 4 Myl. & Cr. 289), or is declared by deed and not by
will (In re Van Straubenzee, Boustead v. Cooper (1901) 2 Ch. 779),
and where the trusts are not for persons in succession (e.g. a
trust for an infant absolutely), there is no implied direction to
Amendment Act, 1894. 177
convert and invest, and the trustee would not be justified in Sect. 4.
changing the investment except for the purpose of preserving
the property from loss. It would appear, therefore, that it is
only in the case of a certain class of trusts that the present
section can be required.
It may be well to consider particular instances in which the
question of the liability of trustees may arise by reason of an
investment ceasing to be an investment authorised. (1) A
change in the law, by virtue of which certain investments at
present authorised should cease to be so authorised. This case
is perhaps not likely to occur, as the present tendency is rather
to enlarge than to restrict the range of investment. (2) A
change in the circumstances which originally had to be con-
sidered in making the investment, e.g. a change in the rate of
dividend of the ordinary stock in the case of investments
authorised by the Trustee Act, 1893, section 1, subsection
(V), or in population in the case of investments authorised
by the Trustee Act, 1893, section 1, subsections (m) and (n).
Having regard to the language of the subsections referred to,
it is submitted that, apart from the present section, no liability
would accrue from the retention of such an investment in the
event suggested. (3) A fall in the value of a mortgage security.
This is the case which is likely to be of greater frequency and
importance than any other here suggested. It would appear
however that, apart from this section, there was no obligation
on trustees to call in a mortgage merely because the value of
the security had fallen below the limit necessary for a new
investment of trust moneys, re Medland, 41 CD. 476; re
OTiaj)man (1896) 2 Ch. 763. In all the above three cases it is
submitted that trustees are still bound, as before the passing of
this Act, to use reasonable care and discretion in considering
whether or not a change of investment is desirable, and will
not be protected by the present sections if they have failed to
nse such care and discretion. (4) Change in the nature of the
investment through no act of the trustee. Where a loan to a
partnership is authorised by the trust instrument, it is sub-
mitted that any change in the membership of the partnership
will now, as before the passing of this Act, necessitate the
calling in of the loan. Of. re Tucker (1894) 1 Oh. 724 ; see
also Smith v. Fatrick (1901) A.C. 282. So too on the recon-
straction of a company, and the issue of shares in the new in
exchange for the shares in the old company, it is submitted that
this Act would not justify the trustees in accepting and retain-
ing the new shares without the sanction of the Court. Cf.
re Morrison (1901) 1 Ch. 701; re New (1901) 2 Ch. 534; re
Smith (1902) 2 Ch. 667. (5) Change in the nature of the
investment due to the foreclosure of a mortgage. Doubtless,
where the trustees have no power to invest in the purchase of
land, foreclosure of a mortgage should, if possible, be avoided.
It may, however, become inevitable, and in such a case the
retention of the land might be a " continuing to hold an
investment " within the meaning of the section. Cf. the
N
178 Trustee Act, 1893,
Sect. 4. reasoning of Buckley, J., in re Smith (1902) 2 Ch. 667. It is
submitted that -where the trustees in their discretion considered
a retention of the land unsold to be beneficial to all parties
interested, the section would operate to free them from liability
in so doing. Cf. re Tollemache (1903) 1 Oh. 457. (5) Expira-
tion of a period limited by the instrument. Where an instrument
authorises the retention of an investment for a limited time
only, it would seem clear that this section would not justify a
retention beyond that period. Such a case indeed is not -within
the section if (as is suggested is the right construction) the
-word " authorised " means " authorised to be made," and not
"authorised to be retained."
It -was held by Kekewich, J., in re Chapman, Cocks v.
Chapman (1896) 1 Ch. 323 (reversed by the Court of Appeal
on another point (1896) 2 Ch. 763), that the section is not
retrospective, -viz. that it does not apply to the retention of an
investment before the 18th June, 1894.
" A Trustee." — There is no definition of the word " trustee "
in the present Act. It must presumably be given its -widest
meaning, so as to embrace the case of any person who might be
made liable for breach of trust in the Courts of England or
Ireland. The Act is not expressed not to extend to Scotland,
but it is submitted that it has only the same scope as the
principal Act, see p. 171, supra.
"Liable." — Cf. the language of section 8 of the Trustee
Act, 1893, in which the word " chargeable " is used, and the
remarks of Kekewich, J., on the distinction between these words
in re Chapman (1896) 1 Ch. 323 ; cf. also section 3 of the
Judicial Trustees Act, 1896, which gives protection in certain
cases in -which " a trustee is, or may be, personally liable for
any breach of trust."
" Continuing to hold." — As to the general duty of trustees
as to retention of investments, see note above, p. 176. As to
the retention of redeemable stock, see section 2, subsection 3 of
the Trustee Act, 1893.
" Ceased to be an Investment authorised." — It is submitted
that this phrase must mean ceased to be an investment of the
nature authorised " to be made " (and not " to be retained "),
for any other construction would lead to very strange results,
and further, in the majority of cases neither the instrument
nor the general la-w would be found to afford any directions as
to "retention" of investments. As to the various -ways in
-which the event here contemplated may occur, see the note
above. As to exemption from liability under section 3 of the
Judicial Trustees Act, 1896, in the case of the neglect by an
executor to get in an unsecured debt in reliance on a direction
to retain existing investments, see re Grindey, Clews v. Grindey
(1898) 2 Ch. 593.
Amendment Act, 1894. 179
That the usual power given to trustees for sale to post- Sect. 4.
pone sale is merely a power of management, and does not
give a discretion to retain a reversionary interest unsold,
so as to deprive the tenant for life of income arising from
the proceeds, see Bowlls v. Bebh (1900) 2 Oh. 107 ; and
ante, p. 33. Sect. 5.
Section 5. — This Act may be cited as the Short title.
Trustee Act, 1893, Amendment Act, 1894.
JUDICIAL TEUSTEES ACT, 1896.
59 & 60 YiCT. c. 35.
An Act to provide for the Appointment of Judicial
Trustees and otherwise to amend the Law respecting
the Administration of Trusts and the Liability of
Trustees,
[14th August, 1896.]
This Act was tte outcome of the report, dated 5th May, 1895,
of a special committee of the House of Commons appointed on
the 18th February in that year " to inquire into the Hahilities to
which persons are exposed nnder the present law as to the
administration of trusts, and whether any future legislative
provision might be made for securing adequate administration
of trusts without the necessity of subjecting private trustees and
executors to the risks which they now run." The committee re-
commended that the Court should have power to relieve a trustee
from liability in case of certain breaches of trust, and also power
to give sanction beforehand to departure from the terms of the
trust in special cases. The former of these recommendations is
carried into efEeot by the provisions of section 3 of the present
Act, but the Act contains no provision for giving efEect to the
latter. (See note, " Or may be liable," to section 3, infra.) The
committee further reported that " a case has been made out in
favour of the establishment of a system under which private
trusts can be administered, if so desired, by and under the control
of some official or judicial authority, which should also have the
custody of funds." After considering three methods in which
this proposal might be carried out, viz. (1) by the establish-
ment of a public trustee, as in New Zealand, (2) by appoint-
ment of an officer of the Court — a modification of the present
system of administration by the Court, and (3) the creation of
a trustee similar to the judicial factor of the Scots Law, the
committee recommended the adoption of the last of the three
suggestions. Section 1 of the Act provides for the appointment
of such a trustee, and the rules made under the provisions of
section 4 of the Act provide for the administration of the trusts
by him.
The machinery provided by the Act for the administration
of trusts has hitherto been very little used.
Judicial Thustees Act, 1896. 181
Be it enacted by tlie Queen's most Excellent Majesty,
by and with tbe advice and consent of the Lords
Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority
of the same, as follows : —
Section 1. — (1.) Where application is made to Sect. 1.
the Court by or on behalf of the person creating or " ~
intending to create a trust, or by or on behalf of oourt^on
a trustee or beneficiary, the Court may, in its discre- ^"^^"^^^T
tion, appoint a person (in this Act called a judicial judicial
trustee) to be a trustee of that trust, either jointly *i""stoe.
with any other person or as sole trustee, and, if
sufficient cause is shown, in place of all or any
existing trustees.
(2.) The administration of the property of a
deceased person, whether a testator or intestate,
shall be a trust, and the executor or administrator
a trustee, within the meaning of this Act.
(3.) Any fit and proper person nominated for the
purpose in the application may be appointed a
judicial trustee, and, in the absence of such nomina-
tion, or if the Court is not satisfied of the fitness of a
person so nominated, an official of the Court may be
appointed, and in any case a judicial trustee shall
be subject to the control and supervision of the Court
as an officer thereof.
(4.) The Court may, either on request or without
request, give to a judicial trustee any general or
special directions in regard to the trust or the
administration thereof.
(5.) There may be paid to a judicial trustee out
of the trust property such remuneration, not exceed-
ing the prescribed limits, as the Court may assign in
each case, subject to any rules under this Act
respecting the application of such remuneration
where the judicial trustee is an official of the Court,
and the remuneration so assigned to any judicial
trustee shall, save as the Court may for special
reasons otherwise order, cover all his work and
personal outlay.
(6.) Once in every year the accounts of every
182 Judicial Trustees Act, 1896.
Sect. 1. trust of whicli a judicial trustee has been appointed
shall be audited, and a report thereon made to the
Court by the prescribed persons, and, in any case
where the Court shall so direct, an inquiry into the
administration by a judicial trustee of any trust, or
into any dealing or transaction of a judicial trustee,
shall be made in the prescribed manner.
" Where Application is made to the Court." — As to the mode
of application, see Judicial Trustee Rules, 1897, 2, 3, 4, p. 205,
infra. As to the Courts having jurisdiction, see section 2, infra,
and rules 29, 30, 31. As to the powers of the master, see
rule 27.
" Person creating or intending to create a Trust." — ^When
the creation of the trust is completed, the only persons who caa
make application are the trustees and beneficiaries.
Even if the expression " person intending to create a trust,"
having regard to the provisions of subsection 2, be construed
as including a testator, it is unlikely that the Court would,
in the lifetime of a testator, appoint a trustee or executor of a
wilL The proper course to be adopted by a testator desirous of
having his estate administered by a judicial trustee, would be to
appoint executors, and direct them, to apply to the Court for the
appointment of themselves, or others, as judicial trustees.
" Or by or on behalf of a Trustee or Beneficiary." — In the
case of the administration of the estate of a deceased testator or
intestate, the persons authorised to make application appear to
be an executor, an administrator, a legatee or devisee, an heir,
or the statutory next of kin, but presumably not a creditor of
the deceased.
"The Court may in its Discretion." — The jurisdiction
conferred by the section is purely discretionary, re Batcliff
(1898) 2 Ch. 352 ; re Ghisholm, Legal and Reversionary Society
v. Knight, 43 Sol. Journal, p. 43.
" Appoint a Person ... to be a Trustee." — As to vesting
the property, see rule 6. As to the persons whom the Court
will appoint, see subsection 8 and rule 5.
" A Judicial Trustee." — The " judicial trustee " is a creation,
of the present Act. Cf. the "judicial factor" of the law of
Scotland, and see general note on the present Act, sttpra.
" Either jointly with any other Person or as Sole Trustee."—
The appointment of a juicial trustee to act jointly with a
private trustee would be likely to lead to inconvenience, and
possibly confusion. It was pronounced undesirable by Keke-
wich, J., in re Martin (1900) W.N. 129. As to the appointment
of a sole ordinary trustee by the Court, see note to section 25
of the Trustee Act, 1893, supra, p. 100.
Judicial Trustees Act, 1896. 183
" If SufBcient Cause is shown in Place of all or any Existing Sect. 1.
Trustees." — The Trustee Act, 1850, which first gave power to '-
the Court by order to appoint new trustees, was held not to
authorise the removal of a trustee against his will, although the
power was expressed to be " to make an order appointing a new
trustee or new trustees either in substitution for or in addition
to any existing trustee or trustees." Re Blanchard, 3 De Gr.P.
& J. 131. Accordingly, as already pointed out (p. 96, supra),
the Court has only power to remove a trustee against his will,
on petition or summons under section 25 of the Trustee Act,
1893, in certain specified cases, viz. where the trustee is a felon,
a lunatic, or a bankrupt, but in the generality of cases a trustee
can only be removed against his will in an action commenced
by writ, under the general jurisdiction of the Court. Letterstedt
V. Broers, 9 A.C. 371, at p. 385 ; re Martin's Trust, 34, CD. 621. It
remains to be seen what construction the Court will put upon
the present section, but it is submitted that the intention of the
section is to give the Court jurisdiction to remove a trustee
where cause is shown which would be suflicient to justify the
removal of a trustee in an action, and that it will not be neces-
sary to show such cause as would be required to enable his
removal under section 25 of the Act of 1893, and this construc-
tion appears to have been adopted by Kekewich, J., in re Batcliff,
supra. See dictum at foot of p. 355 of the report. As against
this view it may be urged that so serious a step as the removal
of a trustee should not be taken upon mere affidavit evidence,
in proceedings instituted by petition or summons.
"Executor or Administrator." — Cf. notes to Trustee Act,
1893, sections 10 and 25, ante, pp. 50 and 102. Be Batcliff
(1898) 2 Ch. 352, is a case in which an application was un-
successfully made for the appointment of a judicial trustee
to act with or in place of a sole executrix. In that case
Kekewich, J., in commenting on the Act, said, " The Court
can, under this Act, do what it could not do before — remove
an executor." It seems clear that the section is intended
to give the Court this power. Rule 5 makes provision for the
appointment of Ian executor or administrator to be a judicial
trustee for the purpose of the collection and distribution of the
estate of a deceased person.
"Any Fit and Proper Person." — Cf. notes to sections 10 and
25 of Trustee Act, 1893, ante, pp. 57 and 99. See rule 5
removing restriction as to the appointment of certain persons
trustees. By virtue of the Interpretation Act, 1889, " person "
includes a corporation. The authors believe that in one or
two cases corporations have been appointed judicial trustees
under the Act on giving security. For an interesting account
of the system in force in the Australian colonies under which
trusts are administered by incorporated societies or companies,
see Vol. 116 of the Law Times, p. 40.
" An Official of the Court may be appointed." — The official
184
Judicial Trustees Act, 1896.
Sect. 1. solicitor is in ordinary cases to be the official appointed. See
rule 7. For definition of official of the Court, see section 5 and
rule 7.
Subsection 3 does not limit subsection 1, and thus in the
event of the absence of nomination, or of the Court not being
satisfied as to fitness, the Court is not limited in its choice of a
trustee to officials of the Court. Douglas v. Bolam (1900)
2 Ch. 749.
" Directions as to the Trust." — General provisions as to the
administration of trusts by the judicial trustee are contained in
rules 8 (statement of trust property), 9 (security to be fur-
nished), 10 (bank account and custody of documents), 11
(payment of money into bank), 12, 13, 28 (obtaining direction
from the Court), 14 to 16 (accounts and audit).
" There may be paid . . . such Remuneration." — The Court
has in exceptional cases allowed remuneration to ordinary
trustees, re Freeman's Trusts, 37 CD. 148; Lewiu, 10th edit.,
248.
See rules 17 to 19.
" Accounts shall be Audited."— See rules 14 to 16. The
annual audit by the accountant of the Court does not exonerate
a curator bonis under the law of Scotland from liability in
respect of an investment improperly made, Sutton v. Annan
(1898) A.C. 289, and it is apprehended that the audit provided
for by the Trustee Act and Rules would not give protection to
a judicial trustee in a similar case.
" Inquiry into Administration." — See rule 22.
Court to
exercise
Sect. 2. Section 2. — The jurisdiction of the Court under
this Act may be exercised by the High Court, and
as respects trusts within its jurisdiction by a palatine
jurisdiction, court, and (subject to the prescribed definition of the
jurisdiction) by any County Court judge to whom
such jurisdiction may be assigned under this Act.
"High Court."— See Judicial Trustee Rules, 1897. Rules
2, 3, and 4 (p. 205, infra) as to the mode of application to the
Court, and Rule 29 (p. 218, infra) as to District Registries.
" Palatine Court."— See rules 30 and 34 (pp. 219, 221, infra).
" County Court."— See rules 31 and 34 (pp. 219, 221, infra).
Sect. 3.
Jurisdiction
of Court in
cases of
breach of
trust.
Section 3. — (1.) If it appears to the Court that
a trustee, whether appointed under this Act or not,
is or may be personally liable for any breach of trust,
whether the transaction alleged to be a breach of trust
occurred before or after the passing of this Act, but
Judicial Trustees Act, 1896. 185
has acted honestly and reasonably, and ought fairly Sect. 3.
to be excused for the breach of trust and for omitting
to obtain the directions of the Court in the matter in
which he committed such breach, then the Court may
relieve the trustee either wholly or partly from
personal liability for the same.
(2.) This section shall come into operation at the
passing of this Act.
This section may best be introduced in tbe words of Farwell,
J., in re Lord de Clifford's Estate (1900) 2 Oh. 707 : " The
Legislature has given to the Court a dispensing power under
section 3, subsection 1 of the Judicial Trustees Act, 1896, in
cases where a breach of trust has been established ; that is to
say, the Court, having found that a breach of trust has been
committed, can relieve the trustee from personal liability if he
' has acted honestly and reasonably, and ought fairly to be
excused for the breach of trust.' Now relief against the
stringent rules of the common law in cases of forfeiture and
the like was an old head of equity, which was applied ou
a thoroughly intelligible principle. The forfeiture being in-
tended to secure the payment of money or the performance of
a contract, equity gave no relief unless it could secure the
payment of the money or the performance of the contract in
favour of the person entitled to enforce the forfeiture, and it
granted relief on the ground that it thereby gave effect to the real
contract between the parties. No such principle is applicable
to the present case, in which equity is called upon to give relief
against its own decree. The Courts of Equity have established
certain rules imposing liability on a trustee, although honest,
and the Legislature has now given the same Courts power to
grant relief against the consequences of a breach of those rules.
There is nothing analogous in this to the principle underlying
the relief against forfeitxu-e at common law, and there is in fact
no principle which can serve as a guide. I have merely to
find as a fact that the trustee has acted honestly and reasonably,
and ought fairly to be excused, and then I have power to grant
relief. It is obvious that the exercise of such a jurisdiction is
beset with great difficulty, and requires great caution. I must
bear in mind on the one hand that this relief is granted at the
expense of the cestui que trust, and on the other that the trustee
assumes an onerous post without reward, and the real difficulty
is to say what is fair and right as between the beneficiary who
entrusts his money to the trustee and the trustee who acts
gratuitously on his behalf."
" Trustee." — There is no definition of trustee in the Act.
The word must presumably be given its widest meaning, so as
to include all persons who may be liable as having committed a
breach of trust, e.g. directors of a company. Cf. note, " Trustee,"
186 Judicial Trustees Act, 1896.
Sect. 3. p. 178, supra. (It muBt be remembered, however, that by
virtue of section 6 the Act does not apply to the trustees of
charities, and only applies to English as apart from Scotch or
Irish trustees.) The word includes an executor, see section 1
Bnbsection 2, and re Kay, Mosley v. Kay (1897) 2 Ch. 518.
" Or may be." — These words are not to be taken as meaning
" or may become," and as applying to a contemplated breach of
trust. The section is not intended to give the Court power to
exercise its authority by anticipation, and to excuse a trustee
from liability for a breach of trust contemplated. Per Kekewich,
J., re Tollemache (1903) 1 Ch. 457, 466. The words " or may
be " point rather to doubtful questions of construction. Per
Lindley, M.E., re Qrindey, Glews v. Grindey (1898) 2 Ch. 593,
598. See general note on the Act, p. 180, supra.
"Breach of Trust." — This includes a devastavit by an
executor, re Kay, Mosley v. Kay (1897) 2 Ch. 518.
"Has acted honestly and reasonably." — The burden of
proof lies on the trustee claiming relief, re Stuart, Smith v.
Stuart (1897) 2 Ch. 583. No general rule can be laid down as
to the application of the section, but it wiU be applied " freely
and fairly," re Turner, Barker v. Ivimey (1897) 1 Ch. 536. " A
narrow construction ought not to be put upon the section,
having regard to the general object in view, which is plain,
namely, the relief of trustees who have acted reasonably.
' Reasonably ' must mean reasonably as trustees." Per Chitty,
L.J., In re Grindey, Glews v. Grindey (1898) 2 Ch. 593, 601.
The mere fact that a trustee has acted in the same way with
his own money is not suflB.cient to excuse him for actions
resulting in loss to the trust fund, per Farwell, J., In re Lord de
Clifford's Estate (1900) 2 Ch. 707, 716, and failure to exercise
the same caution in administering a trust fund as in dealing
with his own money would seem to disentitle him to relief, re
Stuart, Smith v. Stuart (1897) 2 Ch. 583.
Relief under this section has been refused in the following
cases on the ground that the trustee had not acted "reason-
ably," viz. (1) Wynne v. Tempest (1897) W.N. 43, a case in
which the trustee left trust moneys in the hands of his co-
trustee, a solicitor, instead of . seeing that they were paid
into the bank of the trustee's account ; (2) re Turner, Barker
* V. Ivimey (1897) 1 Ch. 536, a case in which a trustee had
made a mortgage investment without taking the precautions
prescribed by section 8 of the Trustee Act, 1893 ; (3) re Stuart,
Smith V. Stuart (1897) 2 Ch. 583, a case similar to the last
cited; (4) Chapman v. Browne (1902) 1 Ch. 785, a case in
which trust funds were invested on a third sub-mortgage of
lands in Ireland ; (5) In re Second East Buhoich Building Society,
68 L.J. Ch. 196, 79 L.T. 726, a case in which a trustee, by
accepting without inquiry what his co-trustee told him, made
it possible for the co-trustee to misappropriate part of the trust
fund.
Judicial Trustees Act, 1896. 187
Relief has heen granted in the following cases, viz. (1) re Kay, Sect. 3.
Mosley v. Kay (1897) 2 Ch. 518, a case in which an executor paid
a legacy and instalments of an annuity out of an estate which he
believed to be a very large one, but which on the establishment
of an adverse claim turned out to be insolvent. The relief was
restricted, however, to the payments made before issue of the writ
in the action establishing the adverse claim. (2) Re Grindey,
Clews T. Grindey (1898) 2 Ch. 593, a case in which an executor
and trustee, relying on a direction to retain existing investments,
failed to call in an unsecured debt. (3) Perrins v. Bellamy
(1899) 1 Ch. 797, a case in which a trustee acted on the mistaken
advice of his solicitor that he had a power of sale. (4) Be Lord
de Clifford's Estate (1900) 2 Ch. 707, a case in which trust
moneys were paid to the solicitor of the trust on his assurance
that they were required for the purposes of administration.
" Omitting to obtain the Directions of the Court." — The
question whether in case of doubt application should be made
to the Court frequently resolves itself into a question of cost.
It is apprehended that although the Court has granted relief
under this section in a case in which a trustee did not apply to
the Court for directions as to calling in an unsecured debt of
£166, re Grindey, Clews y. Grindey (1898) 2 Oh. 593, relief would
probably not be granted in a case such as that of re Beddoe
(1893) 1 Ch. 547, in which expensive litigation is embarked
upon on the advice of counsel without previous application to
the Court. The trustee must in each case exercise his discretion.
Cf. the remarks of Lindley, M.E.., and Eigby, L.J., in Perrins
V. Bellamy (1899) 1 Ch. 797, 801.
" The Court may relieve." — The power is discretionary. The
Court may grant relief though the Act is not specially pleaded,
but where the section is relied on as a defence it should be
pleaded, SingleTiurst v. Tajpscott Steamship Co. (1899) W.N. 133.
Belief may be given in an action for a common account, re Lord
de Clifford's Estate (1900) 2 Ch. 707. In such a case the relief
should be claimed when the order for accounts is made, re
Stuart, Smith v. Stuart (1897) 2 Ch. 583.
Section 4. — (1.) Rules may be made for carry- Sect. 4.
ing into effect this Act, and especially —
(1) for requiring judicial trustees, who are not^"^^®^-.
officials of the Court, to give security for the
due application of any trust property under
their control :
See Judicial Trustee Enles, 1897. Rule 9, p.208, infra.
(2) respecting the safety of the trust property,
and the custody thereof :
See rule 10.
188 Judicial Trustees Act, 1896.
^^°^- ^- (3) respecting the remuneration, of judicial
trustees and for fixing and regulating the fees
to be taken under this Act so as to cover the
expenses of the administration of this Act, and
respecting the payment of such remuneration
and fees out of the trust property, and, where
the judicial trustee is an official of the Court,
respecting the application of the remuneration
and fees payable to him :
See niles 17 to 19.
(4) for dispensing with formal proof of facts in
proper cases :
See rule 13.
(5) for facilitating the discharge by the Court of
administrative duties under this Act without
judicial proceedings, and otherwise regulating
procedure under this Act and making it simple
and inexpensive :
See rules 27, 28, and rule of March, 1899.
(6) for assigning jurisdiction under this Act to
County Court judges and defining such juris-
diction :
See rule 31.
(7) respecting the suspension or removal of any
judicial trustee, and the succession of another
person to the office of any judicial trustee who
may cease to hold office, and the vesting in
such person of any trust property :
See rules 7, 20 to 24, and Douglas y. Bolam (1900)
2 Ch. 749.
(8) respecting the classes of trusts in which
officials of the Court are not to be judicial
trustees, or are to be so temporarily or con-
ditionally :
See rule 26.
Judicial Trustees Act, 1896. 189
(9) respecting the procedure to be followed Sect. 4.
where the judicial trustee is executor or
administrator :
See rule 25.
(10) for preventing the employment by judicial
trustees of other persons at the expense of the
trust, except in cases of strict necessity :
(11) for the filing and auditing of the accounts
of any trust of which a judicial trustee has
been appointed.
See rules 14 to 16.
(2.) The rules under this Act may be made by
the Lord Chancellor, subject to the consent of the
Treasury in matters relating to fees and to salaries
and numbers of officers, and to the consent of the
authority for making orders under the Solicitors
Remuneration Act, 1881, in matters relating to the
remuneration of solicitors. The rules shall be laid
before Parliament and have the same force as if
enacted in this Act, provided that if, within thirty
days after such rules have been laid before either
House of Parliament during which that House has
sat, the House presents to Her Majesty an address
against such rules or any of them, such rules or the
rule specified in the address shall thenceforward be
of no efi'ect.
Eales have been made nnder this section —
Angust, 1897, .Judicial Trustee Rules, 1897 (see p. 205, infra).
April, 1899, Judicial Trustee Rules, 1899 Tsee p. 222, infra).
April, 1900, Judicial Trustee Rules, 1900 (see p. 223, infra).
Section 5. — In this Act — Sect. 5.
The expression "official of the Court " means the
holder of such paid office in or connected with the i^«fl"ii«°°«-
Court as may be prescribed.
The expression " prescribed " means prescribed
by rules under this Act.
Rule 7 of the Judicial Trustee Rules, 1897 (p. 207, infra),
amongst other things prescribes, "(5) for the purpose of the
190
Judicial Trustees Act, 1896.
Sect. 5.
Sect. 6.
Short title,
extent,
and com-
mencement
of Act.
definition of ' official of the Court ' in section 5 of the Act, any
paid office in or connected with the Court shall be a prescribed
office." For definition of " officer of the Conrt," see rale 33.
The expression " official of the Conrt " is nsed in section 1,
subsections 3 and 5, and section 4, subsection 1 (1), (3), (8).
Section 6. — (1) This Act may be cited as the
Judicial Trustees Act, 1896.
(2.) This Act shall not extend to any charity,
whether subject to or exempted from the Charitable
Trusts Acts, 1853 to 1894.
(3.) This Act shall not extend to Scotland or
Ireland.
(4.) This Act, except as by this Act otherwise
provided, shall come into operation on the first day of
May, one thousand eight hundred and ninety-seven.
" Shall not extend to any Charity." — No such restriction is
contained in the Trustee Act, 1893. See section 89 of that Act.
" Shall not extend to Scotland or Ireland." — The Trustee
Act, 1893, extends to Ireland, but not to Scotland. The reason
for the exclusion of Ireland from the present Act is presumably
to be found in the Report of the Special Committee referred to in
the general note on the present Act, p. 180, supra. The Com-
mittee reported that in Ireland no need was felt for any amend-
ment of the law. As to the meaning of the phrase " extend to "
nsed in this connection, see notes to section 52 of the Trustee
Act, 1893, p. 163, supra, and see Ghapman v. Browne (1902)
1 Ch. 785, in which case the applicability of section 3 of the
present Act to an Irish settlement was discussed, but not
decided.
" Except as in this Act otherwise provided." — This refers to
section 3, subsection 2.
COLONIAL STOCK ACT, 1900.
63 & 64 Vict. c. 62.
An Act to amend the Colonial Stock Acts, 1877 and
1892, and the Trustee Act, 1893.
[8tli August, 1900.]
Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows : —
Section 2. — The securities in which a trustee Sect. 2,
may invest under the powers of the Trustee Act,
1893, shall include any Colonial Stock which is f,°^t?J ^
registered in the United Kingdom in accordance invest m
with the provisions of the Colonial Stock Acts, 1877 It^^^^
and 1892, as amended by this Act, and with respect
to which there have been observed such conditions
(if any) as the Treasury may by order notified in
the London Grazette prescribe.
The restrictions mentioned in section two sub-
section (2) of the Trustee Act, 1893, with respect to
the stocks therein referred to shall apply to Colonial
Stock. The Treasury shall keep a list of any
Colonial Stocks in respect of which the provisions of
this Act are for the time being complied with, and
shall publish the list in the London and Edinburgh
Gazettes, and in such other manner as may give the
public full information on the subject.
192 Colonial Stock Act, 1900.
Sect- 4. Section 4.— This Act may be cited as the
Short title Colonial Stock Act, 1900, and the Colonial Stock
Acts, 1877 and 1892, and this Act may be cited
collectively as the Colonial Stock Acts, 1877 to
1900.
For list of the Colonial Stocks in respect of which the
requirements of this Act have been complied with, see Supple-
mentary Volume.
RULES OF THE SUPREME COURT
(TRUSTEE ACT), 1893.
OEDER LIV6.
Peoceedings under the Trustee Act, 1893.
1. All proceedings in the High Court commenced o. 54b, r. 1.
under the Trustee Act, 1893 (in this Order called
"the Act"), shall be assigned to the Chancery-
Division of the Court.
These Enles (constituting Order LIV6 of the Rules of the
Supreme Court) regulate the procedure in applications under
the Trustee Act, 1893.
"All Proceedings . . . commenced under the Trustee Act,
1893." — The following is a list of proceedings under the Act: —
Applications for —
(a) Appointment of new trustees (section 25).
(6) Vesting order as to land (section 26).
(c) Releasing or vesting contingent rights in land of unborn
persons (section 27).
(d) Vesting order in place of conveyance by infant mort-
gagee (section 28).
(e) Vesting order in place of conveyance by heir or devisee
or personal representative of mortgagee (section 29).
(/) Vesting order consequential on judgment for sale or
mortgage of land (section 30).
{g) Vesting order consequential on judgment for specific
performance, partition, etc. (section 31).
Qi) Appointment of person to convey land or release con-
tingent rights in land in lieu of vesting order (section 33).
(i) Vesting order as to stock and choses in action (section
35).
(y) Appointment of person to make transfer of stock in lieu
of vesting order (section 35 (2)).
(Jc) Vesting land, stock, or chose in action in trustees of
charity or society (section 39).
(l) Payment into Court by trustees (section 42).
(m) Order for payment into Court by majority of trustees
(section 42).
O
194 Trustee Act, 1893 (Rules).
0. 54b, r. 1. («) Order on banker, broker, or depositary to pay or deliver
moneys or securities to majority of trustees for tie purpose of
payment into Court (section 42).
(0) Sanction to sale of land reserving minerals, and vice versa
(section 44).
(^) Impounding interest of a beneficiary by way of indemnity
for a breach of trust (section 45).
(2) Appointment of new trustees for the purposes of the
Settled Land Acts (section 47).
(r) Payment out of Court.
0. 54b, r. 2. 2. All applications under the Act may be made
by petition except as otherwise provided under Order
LV.
" Applications under the Act." — See note to Rule 1, siipra,
p. 193.
"Made by Petition except as otherwise provided under
Order LV." — The conjoint effect of this rule and Order LV.,
Eules 2 and 13a of the Rules of the Supreme Court (infra, p. 202)
is that the following applications are made by petition : —
(1) Applications for vesting orders, except when conse-
quential on the appointment of a new trustee, and except when
a jndgment or order has been given or made for the sale, con-
veyance, or transfer of any land or stock, or the suing for or
recovering of any chose in action ; e.g. vesting orders in conse-
quence of refusal of trustee to transfer to person beneficially
entitled ; vesting order in place of conveyance by infant mort-
gagee, or heir, devisee, or personal representative of mortgagee.
(2) Applications for release of contingent rights in land of
nnbom persons, except when consequential on the appointment
of a new trustee, and except when a judgment or order has been
given or made for the sale, conveyance, or transfer of any land.
(3) Applications for appointment of person to convey land
or transfer stock, or release contingent right in land, except
when consequential as aforesaid.
(4) Applications for order for payment into Court by
majority of trustees.
(6) Applications for order on bankers, brokers, or depositaries
for payment or transfer to majority of trustees for the purpose
of lodgment in Court.
^ (6) Applications for payment out of Court where funds
exceed £1000, and there has been no order declaring the rights
of the parties, and the title does not depend merely npon proof
of identity or birth, marriage, or death of any person.
(7) Application for leave to sell land reserving minerals, or
vice versa.
(8) Applications for impounding interest of a beneficiary by
way of indemnity. As to this, see post, p. 195.
The applications may doubtless be made in an action, thus.
Trustee Act, 1893 (Rules). 195
payment out was made on further consideration in Pullen v. 0. 54b, r. 2.
Isaacs (1895) W.N. 90, and the impounding of the interest of a ■
beneficiary is not usually made on an application expressly made
for the purpose, but usually in an action. Cf. re Holt (1897)
2 Ch. 525, and infra.
Payment into Court under section 42 (ante, p. 144) does not
involve an application to the Court (unless an order is required
under subsection 3 of section 42) but is made under rule 4
(post, p. 198). ,
Petitions. — Form: For forms of petitions, see Daniell's
Chancery Forms. For title, see rule 4a, post.
Petitioners. — Petition for vesting order of trust property,
or for release of contingent rights in trust land, or for appoint-
ment of person to convey trust land, or transfer trust stock, or
release contingent right in trust laud, or payment out of funds.
See section 36 (1).
Petition for payment into Court by majority of trustees, or
for order on bankers, brokers, or depositaries for payment to
majority of trustees (see section 36 (1)) ; usually the majority
of trustees should petition.
Petition for leave to sell trust land apart from minerals, etc.
See section 36 (1), and rule 3, infra, p. 196.
Petition for impounding interest of a beneficiary by way of
indemnity. An application under this section hardly seems to
come within section 36 (1). The trustee should apply. In re
Holt (1897) 2 Ch. 525, it was argued that the powers of section 45
could only be enforced in an action, but it would seem open to
argument that such an application can be made by petition
under the rules. Usually the question of impounding arises in
an action by a beneficiary against a trustee. See as to this,
ante, p. 155.
Petition for vesting order as to mortgaged property, or for
appointment of person to convey or transfer mortgaged property,
or for sale of mortgaged land reserving minerals, etc. See section
36(2).
Bespondents. — Petitions relating to trust property by
persons beneficially interested should, as a general rule, be
served on the trustee or his representatives in whom the pro-
perty has vested, and on any other beneficiaries interested in the
property. Service on the trustee or his representatives afore-
said is not necessary in the following cases, viz. : trustee
permanently abroad, re Martin Pye, 42 L.T. 247 ; absconding
trustee, Hyde v. Benhow (1884) W.N. 117, heir of trustee
permanently abroad, re Stanley (1893) W.N. 30 ; re Greenwood,
27 CD. 359 ; trustee of unsound mind where no committee has
been appointed, re Hast, 8 Ch. 735 ; trustee, refusing to convey,
re Crowe, 13 Bq. 26 ; re Baxter, 2 Sm. & Giff., App. V. ; infant
heir; there is a conflict of authority, four decisions holding
service unnecessary, re Tweedy, 9 W.R. 398 ; re Willan, 9 W.R.
689 ; re Davies (1889) W.N. 215 ; re Little, 7 Eq. 323 ; and four
holding the contrary, re Jones, 22 W.R. 837 ; re Adams (1887)
196 Trustee Act, 1893 (Rules).
0. 54b, r. 2. W.N. 175 ; re Bussell (1866) W.N. 125 ; re Cooper, 9 W.R. 531.
Probably the latest decision, that of Chitty, J., in re Davies,
supra, where the attention of the Court was drawn to the
conflict of authority, will be followed in future and service
dispensed with. See also cases as to service of summonses for
appointment of new trustees and vesting orders, post, p. 203.
As to dispensing such service on other beneficiaries, see post,
p. 203.
Petitions relating to trust property by trustees should,
as a general rule, be served on the beneficiaries (see post,
p. 203).
Petitions for orders for payment into Court by majority of
trustees should be served on the minority of trustees, re Bryant
(1868) W.N. 123, and the beneficiaries.
Petitions for orders on bankers, brokers, or depositaries for
payment to majority of trustees should be served on the bankers,
brokers, or depositaries, the minority of trustees, and the bene-
ficiaries.
Petitions for leave to sell trust land apart from minerals,
etc. (see rule 3, infra).
Petitions for impounding interest of a cestui que trust should
be served on the beneficiary in question.
Petitions for payment out of Court (see rule 4, infra, and
notes, p. 204).
Petitions for vesting orders, or orders appointing persons to
convey mortgaged property, should, as a general rule, be served
on the person upon whom the mortgaged property has devolved.
This has been held unnecessary in the case of an infant, re
Willan, 9 W.E.. 689, but see the conflict of authority on this
point, supra, p. 195, and in the case of a mortgagor of copyholds
who covenanted to surrender but refused to do so, re Crowe's
Mortgage, 13 Eq. 26, and see cases, supra, p. 195.
Petitions for sale of mortgaged land apart from minerals (see
rule 3, infra).
Service. — The petition must state in a footnote the names
of the persons to be served (O. 52, r. 16), mentioning the
respondents' names, Meyrick v. Lawes (1877) W.N. 223. As to
the time to elapse between service and hearing, see O. 52, r. 17.
Where an infant is named respondent and served, though
unnecessarily, a guardian ad litem must be appointed and
appear, or the petition amended by striking out the footnote
stating the intention to serve the infant, re Tweedy, 9 W.R. 398.
As to tendering 30s. to a respondent on a petition, and giving
him notice that in case of his appearance his costs will be
objected to, see 0. 65, r. 27 (19).
Evidence. — The evidence may be given by affidavit (0. 38,
r.l).
0. 54b, r. 3. 3. An application under section forty-four of the
Act may be made by the trustees authorised to
dispose of the land as in the said section mentioned.
Trustee Aot, 1893 (Rules). 197
" An Application under Section 44." — The application is by 0. 54b r. 3.
petition (see ante, p. 194). The necessity for this rule is not '-
obvious ; an application under section 44 would appear to be an
application concerning land subject to a trust, or subject to a
mortgage, as the case may be, and therefore to be within
section 36. The rule was made before the Amendiug Act was
passed extending the provisions of the section so as to include
mortgages, hence it only provides for the case of trust property.
For forms of petitions, see Daniell's Chancery Forms, p. 1091.
As to title of petition, see rule 4(i, infra.
Petitioners. — In the case of trust property, having regard to
this rule, the trustees should be petitioners, though it is sub-
mitted that the application might be made on the application
of any person beneficially interested under section 36, sub-
section 1.
The beneficiaries may be co-petitioners jointly with the
trustees, re Palmer, 13 Eq. 408.
In the case of mortgaged property it is conceived that under
section 36 (2) any person beneiicially interested in either the
equity of redemption or the mortgage money can apply. In
practice the mortgagee is invariably the petitioner. The mort-
gagee can petition, whether or not in possession, and although
he have commenced an action for foreclosure, re Wilkinson, 13
Bq. 634. In that case the petition was not entituled in the
cause, but in the matter of the 25 & 26 Vict. c. 108.
Respondents. — In the case of trust property, if not made
co-petitioners, all beneficiaries should, if possible, be made re-
spondents. The authorities are, however, in conflict on the point.
Beneficiaries were held necessary parties in re Palmer, 13 Bq.
408 ; re Hirst, 45 CD. 263 ; and in re Woodcock, 37 Sol. J. 250 ;
and in re Hardstaff (1899) W.N". 256, service was directed on
all beneficiaries " having regard to the state of the authorities."
In re Wynn, 16 Eq. 237, no beneficiaries were parties, nor in
re Wadsworth, 63 L.T. 217. In re Pryse, 10 Eq. 531 ; re Nagle,
6 CD. 104, and re Powell, 23 W.R. 151, the power of sale was
vested in trustees with the consent of the tenant for life, and it
was held that the remaindermen were not necessary parties.
Remaindermen were required to be served in re Woodcoch, supra,
and re Hardstaff, supra, and the present practice may be taken
to be as above stated. Where one of the beneficiaries is out of
the jurisdiction, service on him may be dispensed with, even
though he be known to object to the application, re Skinner
(1896) W.N. 68. As^to dispensing with service on beneficiaries,
see post, p. 203.
In the case of mortgaged property, a petition by mortgagees
must be served on the mortgagor, re Hirst, 43 CD. 263, and the
reasoning of that case also applies to subsequent encumbrancers,
though it was held in re Beaumont, 12 Eq. 86, that subsequent
encumbrancers need not be served.
Service. — See ante, p. 196.
^Evidence. — The evidence may be given by affidavit (0. 38,
r. 1). An order may be made ia favour of a mortgagee.
198 Trustee Act, 1893 (Eules).
0. 54b, r. 3 notwitistandin^ the opposition of a later mortgagee or tbe
mortgagor, re Willcinson, supra.
Form of Order. — See Seton, 1748 ; re Wilhoay, 32 LJ. Ch.
226 ; re Thomas, 40 Sol. J. 98.
0. 54b, r.4. 4. (1.) Where a trustee desires to make a
"" lodgment in Court under section forty-two of the
undfr''°* -^ct he shall make and file an affidavit intituled
section 42. in the matter of the trust (described so as to
be distinguishable) and of the Act, and setting
forth—
(a) A short description of the trust and of the
instrument creating it.
( b) The names of the persons interested in and
entitled to the money or securities, and
their places of residence to the best of his
knowledge and belief.
(c) His submission to answer all such inquiries
relating to the application of the money
or securities paid into Court, as the Court
or Judge may make or direct.
(d) The place where he is to be served with any
petition, summons, or order or notice of
any proceeding relating to the money or
securities.
Provided that if the fund consists of money or
securities being, or being part of, or representing a
legacy or residue to which an infant or person
beyond seas is absolutely entitled, and on which the
trustee has paid the legacy duty, or on which no
duty is chargeable, the trustee may make the lodg-
ment (without an affidavit) on production of the
Inland Eevenue certificate in manner prescribed by
the Supreme Court Funds Rules for the time being
in force.
(2.) Where the lodgment in Court is made on
affidavit —
(a) the person who has made the lodgment
shall forthwith give notice thereof, by
prepaid letter through the post, to the
several persons whose names and places
of residence are stated in his affidavit as
Trustee Act, 1893 (Exiles). 199
interested in or entitled to the money or 0. 54b, r. 4.
securities lodged in Court ;
(6) no petition or summons relating to the
money or securities shall be answered or
issued unless the petitioner or applicant
has named therein a place where he may
be served with any petition or summons,
or notice of any proceeding or order
relating to the money or securities or the
dividends thereof;
(c) service of any application in respect of the
money or securities shall be made on
such persons as the Court or Judge may
direct.
"Lodgment . . . under Section 42."— This means, under
subsection 1 only of that section, cases in •which no order is
requisite. Where an order is requisite under subsection 3 of
section 42, the application is by petition (see ante, p. 194).
"Affidavit." — The affidavit must have a printed schedule.
Supreme Court Funds Rules, rule 41, infra, p. 200. It should be
sv?orn by all the trustees, but the affidavit of one of two trustees
has been held sufficient, Anon, 1 Jnr. N.S. 974. The amount
to be lodged should be expressed in words, not figures, re Watts,
24 W.R. 701.
" Description of the Trust and of the Instrument creating
it."— In the Trustee Relief Act, 1847, the v7ords "shortly
describing the instrument creating the trust " appeared in the
body of the enactment, and, it would seem, limited the enact-
ment not only to persons who were trustees, but to trustees of
trusts created by instrument. Cf . Matthew v. Northern Assurance
Co., 9 CD. 80, at p. 87. There is no such implied limit in
section 42 of the Act of 1893, which relies on the definition in
section 50 for the inclusion of executors, and which definition
also includes implied and constructive trusts. It is conceived
that the terms of this rule cannot limit the provisions of the
Act.
"Money or Securities." — Section 42 of the Act authorises
the payment into Court of money or securities. See the
definition of securities applicable to that section, ante, p. 167.
From this it would appear that shares in foreign companies
and shares not fully paid up are securities within the meaning
of the Act. Form 16 of the Appendix of forms under the
Supreme Court Funds Rules, 1894, has a note, " describe
securities, if any, which must be such as the paymaster can
properly accept." The practice would appear to be that all
kinds of securities may be lodged except those of any company
200 Trustee Act, 1893 (Kules).
0. 54b, r. 4. not established in tbe United Kingdom, and that all shares
must be fully paid up and free from any liability. (Annual
Practice, Vol. II., note to rule 30 of Supreme Court Funds
Rules, 1894.) It is further stated in the same note that
securities coming within the exception may be ordered to be
placed in a box and so lodged under Practice Masters Rules
(22). That rule, however, appears to have no bearing on
lodgment in Court under the Trustee Act. It seems a matter
for consideration how far the note to Form 16 of the Supreme
Court Funds Rules can limit the express provisions of the section.
" The Place where he is to be served." — These words do
not dispense with the necessity for personal service on the
trustee of a petition or summons dealing with the fund, but if
personal service cannot be effected, service at the address for
service given in the affidavit may be ordered, exparte Baugham,
16 Jnr. 325; re Lawrence, 14- W.R. 93 ; see 42 Sol. J. 517.
" Lodgment (without an Affidavit)." — The Supreme Court
Funds Rules provide (r. 41) as follows : —
Lodgments 41. Where a legal personal representative desires to lodge
under the funds in Court, under the Trustee Act, 1893, without an affidavit,
1893 ^® shall leave with the paymaster a request, signed by him or
his solicitor, with a certificate of the Commissioners of Inland
Revenue ; such request and certificate to be in the Form No. 16
in the Appendix to these Rules, with such variations as may be
necessary, or, as regards such certificate, in such other form as
shall from time to time be adopted by the said Commissioners,
with the consent of the Lords Commissioners of Her Majesty's
Treasury. The money or securities so lodged shall be placed to
the credit mentioned in such request.
When a trustee or other person desires to lodge funds in
Court in the Chancery Division under the Trustee Act, 1893,
upon an affidavit, he shall annex to such affidavit a schedule in
the same printed form as the lodgment schedule to an order,
setting forth —
(a) His own name and address :
(6) The amount and description of the funds proposed to
be lodged in Court :
(c) The ledger credit in the matter of the particular trust
to which the funds are to be placed :
, (d) A statement whether legacy or estate or succession duty
(if chargeable) or any part thereof has or has not
been paid :
(e) A statement whether the money or the dividends on the
securities so to be lodged in Court, and all accumula-
tions of dividends thereon, are desired to be invested
in any and what description of Government securities,
or whether it is deemed unnecessary so to invest the
same.
An office copy of such schedule is to be left with the pay-
master.
Trustee Act, 1893 (Eules). 201
And see rule 30 and form 16. 0. 54b, r. 4.
" Forthwith give Notice thereof." — This renders obsolete
re Graham (1891) 1 Oh. 151.
" Service of any Application." — The judges of the Chancery
Division in January, 1894, gave the following directions as to
service : —
"We, the undersigned judges of the Chancery Division of
the High Court of Justice, direct that all applications dealing
■with funds lodged in Court on aflBdavit under the Trustee Act,
1893, or under the repealed Trustee Relief Acts, be in ordinary
cases served upon the trustees and the person named in the
trustee's affidavit as interested in or entitled to the money or
securities. When a special direction is required, it should be so
stated on the petition or summons, and the petition should, when
presented, be referred to Chambers for such direction to be
given before it is answered for hearing in Court.
Joseph W. Chittt, J.
FoED North, J.
James Stieling, J.
Aethuk Kekewioh, J.
Robert Rombe, J.
The directions only apply to funds lodged on affidavit. In
the case of funds lodged without affidavit, under the proviso to
rule 4 (1) the trustee is not served.
For the old practice as to service ; and generally, under the
repealed Trustee Relief Acts, see Morgan's Chancery Acts,
6th edit., pp. 50-61.
4a. Applications to deal with funds lodged in o. 54b,
Court under the Act shall be intituled in the same r. 4a.
manner as the affidavit or request on which the \
funds were lodged. All other applications under ^P^]j°^'^t°
the Act, not made in any pending cause or matter, tow intituled.
shall be intituled in the matter of the trust (described
so as to be distinguishable) and of the Act. Every sections, when
petition or summons for a vesting order, or the tereVhT*"''
appointment of a person to convey, shall state the petition or
section or sections of the Act under- which it is summons.
proposed that the order shall be made.
This rule was added in February, 1895. Rules of Supreme
Court (5).
"In the same Manner as the Affidavit." — See rule 4 (1).
"All other Applications under the Act."— See notes to
rule 1, ante, p. 193.
202 Trustee Act, 1893 (Eules).
0. 54b, "Vesting Order or Appointment of a Person to convey."
r. 4a. — This requirement is in accordance with the previous practice
(see re Moss, 37 CD. 513).
"All other Applications . . . shall be entituled." — An
application for an order vesting land registered under the Land
Transfer Acts, 1875 and 1897, must, if the course of applying
for rectification of the register (see ante, p. Ill) is adopted, be
also entituled in the matter of the Land Transfer Acts, 1875
and 1897.
An application for the appointment of new trustees for the
purposes of the Settled Land Acts will usually be made under
those Acts (see ante, p. 157). Where new trustees are required
for the general purposes of the settlement as well as for the
purposes of the Acts, it is conceived the appointment could be
made under sections 25 and 47 of the Trustee Act, 1893, on a
summons entituled in the matter of the Trustee Act alone, but
it will be safer to also entitule such a summons in the matter of
the Settled Land Acts.
0. 54b, r. 5. 5. Order LY., Rule 13a, is hereby repealed, and
the following rule shall be substituted therefor : —
Application 13^. _A.ny of the following applications under
underTrustee the Trustee Act, 1893, may be made by summons : —
Act, 1893. ^Qj) j^j2 application for the appointment of a new
ff^n^et"*"'"' trustee with or without a vesting or other
trustees and Consequential order.
vesting order. ,jj ^^ application for a vesting order or other
V 66iiiii^ order, * -m i*iii ' i l j?
order consequential on the appointment ot
a new trustee, whether the appointment is
made by the Court or a Judge, or out of
Court.
Vesting order (c) An application for a vesting or other con-
on sale, etc. sequential order in any case where a
judgment or order has been given or
made for the sale, conveyance, or transfer
of any land or stock [or the suing for or
recovering any close in action].
o/'cTrt ""* (^) ^^ application relating to a fund paid into
Court in any case [coming within the
provisions of rule 2 of this Order].
The words in brackets were substituted for the words,
" where the money or securities in Court does not or do not
exceed £1000 or £1000 nominal value," by the Rules of the
Supreme Court, February, 1895, rule 6.
Trustee Act, 1893 (Rules). 203
Under paragrapt (d), supra, the following applications are 0. 54b, r. 5.
made by summons : —
(a) Applications for payment or transfer to any person of
any casli or securities in Court in any case "where there has
been a judgment or order declaring the rights, or where the
title depends only upon proof of the identity or the birth,
marriage, or death of any person (0. 55, r. 2 (1)).
(6) Applications for payment or transfer to any person of
any cash or securities in Court where the cash does not exceed
£1000 or the securities do not exceed £1000 nominal value
(O. 55, r. 2 (2)).
(c) Applications for payment to any person of the dividend
or interest on any securities in Court whether to a separate
account or otherwise (0. 55, r. 2 (3)).
{d) Applications relating to a fund paid into Court as to
the guardianship, maintenance, and advancement of infants
(0. 55, r. 2 (12).
(e) Such other applications relating to a fund in Court
as the judge may think fit to dispose of at Chambers
(0. 55, r. 2 (18)).
Under this last heading the judge has power to dispose in
Chambers of such parts of the matters brought before him on
petition as he thinks can be more conveniently disposed of in
Chambers, re Tweedy, 28 CD. 529.
" Summons." — I.e. either originating summons, or, if in a
pending cause or matter, ordinary summons. For forms of
summonses, see Daniell's Chancery Forms. For title, see rule
4a, ante, p. 201.
Applicants. — See section 36 (1) of the Trustee Act, 1893,
but the trustees are not the proper persons to apply for pay-
ment out of funds in Court.
Respondents. — Applications by beneficiaries for the appoint-
ment of a new trustee or for a vesting order should, as a
general rule, be served on the trustee or his representatives in
whom the property has vested, and on any other beneficiaries
interested in the property. Service on the trustee or his repre-
sentatives aforesaid is not necessary in the cases mentioned on
p. 195, ante. To the authorities there cited may be added the
following: re Bignold, 7 Ch. 223, appointment of new trustee
in place of trustee permanently abroad ; the like application where
the trustee was of unsound mind, and no committee had been
appointed, re Green, 10 Ch. 272 ; the like application where
the trustee had absconded, re Harford, 13 C.I). 135 ; the like
application where the trustee was from physical infirmity
incapable of acting, re Weston (1898) W.N. 151.
If a committee of a lunatic trustee has been appointed, he
should be served, as he may have a claim for costs, re Saumarez,
8 De G.M. & G. 390.
Service on beneficiaries may also be dispensed with in some
cases. The judge exercises his discretion according to the circum-
stances of each case, and satisfies himself that there is a fair
204 Trustee Act, 1893 (Rules).
0. 54b, r. 5. hearing of all possible contentions as to the persons to be
appointed trustees and otherwise. Practice note (1901, W.N. 85).
Thus in re Smyth, 2 De G & Sm. 781, service was dispensed with
on cestuis que trust under settlements of shares in the trust estate
of which new trustees were being appointed, the trustees of
such settlements alone being served; and see re BlancJiard,
3 De G.F. & J. 131, at p. 137 ; re LigUhody, 52 L.T. 40 ; re
Wilson, 31 CD. 522, where service was dispensed with on a
cestui que trust who was abroad.
The proposed new trustee ought not to be served or appear
for the mere purpose of consenting to act, re Draper,
2 W.R. 440.
Applications by trustees should as a rule be served on the
beneficiaries, but such service may be in some cases dispensed
with as above mentioned.
Summons relating to funds lodged in Court on affidavit
should be served in accordance with the judge's directions
dated January, 1894 (see ante, p. 201). In the case of applica-
tions dealing only with payment of income, a special direction
should be asked for, dispensing (in accordance with the old
practice, re Marner, 3 Eq. 432) with service on remaindermen.
Summonses relating to a legacy or share of residue paid in
without an affidavit are not served on the trustee (see ante,
p. 201).
Service. — ^The ordinary practice as to service of summonses
applies. Order 65, r. 27 (19) as to tendering 30s. to a respondent
on a petition and giving him notice that if he appears his costs
will be objected to, does not apply to a respondent on a
sxunmons.
Evidence. — The evidence may be given by affidavit (0. 38,
r. 1). On a summons for the appointment of new trustees
there must be an affidavit of fitness of the new trustee, and his
written consent to act must be produced.
54b r 6 6. The following rules are hereby repealed ; —
■^ ^— ■ Order LII. Eules 19, 20, 21, 22 ;
Kepeai. Order LY. Eule 2 (4), (5), (8).
Chancery Funds Amended Orders, 1874.
Orders 5, 6, 7, 8, 9, and 10.
0. 54:b, r. 7. 7. These rules may be cited as the " Eules of the
• Siipreme Court (Trustee Act), 1893," and each rule
Citation. may be cited separately according to the heading
thereof with reference to the Rules of the Supreme
Court, 1883. They shall come into operation on the
first day of January, 1894.
JUDICIAL TRUSTEE RULES.
Rules undee the Judicial Trustees Act, 1896.
1. — The following rules may be cited as the Rule 1.
Judicial Trustee Rules, 1897, and shall apply as far
as practicable to all matters and proceedings under "^ ^ ^'
the Judicial Trustees Act, 1896 (in these rules
called the Act).
Appointment of Judicial Trustee.
2. — An application to the Court to appoint a Rule 2.
iudicial trustee shall be in the Chancery Division,
ir^A Mode of
ana ^ making
(a) if not made in a pending cause or matter, application.
shall be made by originating summons;
and
(b) if made in a pending cause or matter, shall
be made as part of the relief claimed, or
by summons in the cause or matter.
3. — (1.) The summons shall be served, — j{,^e 3.
(a) where the application is made by or on
behalf of a trustee, on the other trustee Service of
/■r \ ^ summons.
(it any) ; and
(b) where the application is made by or on
behalf of a beneficiary, on the trustees (if
any),
and in either case on such (if any) of the beneficiaries
as the Court directs.
(2.) Where the application is made by or on
behalf of a person creating or intending to create a
trust, the summons, subject to any direction of the
Court, need not be served on any person.
206 Judicial Teustbb Rules.
Rule 3. (3.) The Court may give any directions it thinks
fit, either dispensing with the service of the summons
on any person on whom it is required to be served
under this rule, or requiring the service of the
summons on any person on whom it is not required
to be served under this rule.
Rule 4. 4. — (1.) Where an application is made for the
appointment of a judicial trustee by originating
statement to summons, the applicant must, when he takes out the
ap^oation.°° summons, supply for the use of the Court a written
statement signed by him containing the following
particulars so far as he can gain information with
regard to them : —
(a) A short description of the trust and instru-
ment by which it is, or is to be, created,
and of the relation which the applicant
bears to the trust ;
(&) If a person is nominated as judicial trustee,
the name and address of the person nomi-
nated, and short particulars of the reasons
which lead to his nomination ;
(c) If a person is nominated as judicial trustee,
a statement whether it is proposed that
the person nominated should be remuner-
ated or not ;
(d) Short particulars of the trust property, with
an approximate estimate of its income,
and capital value ;
(e) Short particulars of the incumbrances (if
any) affecting the trust property ;
(/) A statement whether it is proposed that
the judicial trustee should be a sole
trustee or should act jointly with other
trustees ;
(g) Particulars as to the persons who are in
possession of the documents relating to
the trust ;
(A) The names and addresses of the beneficiaries
and short particulars of their respective
interests :
Judicial Trustee Eulbs. 207
(i) Any exceptional circumstances specially Itide 4.
affecting the administration of the trust.
(2.) An affidavit by the applicant verifying the
statement shall be sufficient primd facte evidence of
the particulars contained in the statement.
(3.) Where the applicant cannot gain the infor-
mation necessary for making the required statement
on any point, he must mention the fact in his
statement.
5. — (1.) The Court shall not be precluded by Rule 5.
any existing practice as to the appointment of '
.•^j. r • ±' J.1 'j'-i Eemoval of
triistees from appomtmg any person to be a judicial reBtriction
trustee by reason of that person being a beneficiary, astoap-
if. , 1 1 ••• T p ^ r> • pointment
or a relation or husband or wile oi a beneficiary, or Sf certain
a solicitor to the trust or to the trustee, or to any ^g'^t°„gte°g
beneficiary, or a married woman, or standing in
any special position with regard to the trust.
(2.) A person may be appointed to be a judicial
trustee of a trust although he is already a trustee of
the trust.
6. On the appointment of any person to be Rule 6.
judicial trustee the Court shall make such vesting or ~ \
otber orders and exercise such other powers as may ^Xm^
be necessary for vesting the trust property in the
judicial trustee either as sole trustee or jointly with
other trustees as the case requires.
Apj)ointment of Official of Court to be
Judicial Trustee.
7. — (1.) Where an official of the Court is Rule 7.
appointed judicial trustee, the official solicitor of the
Court shall (subject to the provisions hereinafter ?^?^\
contained in rules twenty-nine, thirty, and thirty- trustee.
one) be so appointed, unless, for special reasons, the
Court directs that some other official of the Court
should be so appointed.
(2.) Any official of the Court appointed to be a
judicial trustee shall, on his ceasing to hold office,
208
Judicial Tkustee Kctles.
Rule 7. cease to be sueli a trustee without any formal
resignation.
(3.) Where an official of the Court is judicial
trustee, any trust property vested in or held by
him shall be vested in and held by him under his
official title and not in his own name.
(4.) Where an official of the Court appointed to
be a judicial trustee of a trust dies, or ceases to hold
office, his successor in office shall, unless the Court
otherwise directs, become judicial trustee of the
trust without any order of the Court or formal
appointment, and the trust property shall, without
any conveyance, assignment, or transfer, in such a
case become vested in the successor as it was vested
in his predecessor in office.
(5.) For the purpose of the definition of " official
of the Court," in section five of the Act, any paid
office in or connected with the Court shall be a
prescribed office.
Riale 8.
statement
of trust
property.
Rule 9.
Security.
Administration of the Trust.
8. — (1.) A judicial trustee must, unless in any
" case the Court considers that it is unnecessary, as
soon as may be after his appointment, furnish the
Court with a complete statement of the trust
property, accompanied with an approximate estimate
of the income and capital value of each item.
(2.) It shall be the duty of the judicial trustee
to give such information to the Court as may be
necessary for the purpose of keeping the statement
of the trust property correct for the time being.
9. — (1.) A judicial trustee, if not an official of
" the Court, must give security to the Court for the
due application of the trust property, unless the
Court dispenses with security under this rule.
(2.) The Court may, on the appointment of a
judicial trustee, or at any time during his con-
tinuance in office as judicial trustee, dispense with
Judicial Trustee Rules. 209
security on the application either of the person who Riile 9.
is to be appointed or is judicial trustee, or of any ~
person appearing to the Court to he interested in
the trust, and shall do so where a judicial trustee is
appointed on the application of a person creating or
intending to create a trust, and that person desires
that security should be dispensed with, unless for
special reasons the Court consider that security is in
such a case necessary or desirable.
(3.) The security must be given, either by
recognisance, bond, or otherwise, as the Court directs,
and with such sureties as the Court approves.
(4.) If the Court is satisfied that suflBcient
provision is made for the safety of the capital of the
trust property, the amount of the security shall, in
ordinary cases, be an amount exceeding by twenty
per centum the income of the trust property as
estimated by the Court.
(5.) The Court may at any time require that the
amount or nature of the security given by a judicial
trustee under this rule be varied, or that security be
given where it has previously been dispensed with,
and a judicial trustee shall comply with any such
requirement.
(6.) It shall be a condition of every recognisance,
bond, or other form of security given under this
rule that the judicial trustee shall give immediate
notice to the Court of the death or insolvency of
any of his sureties.
(7.) Any recognisance, bond, or other form of
security given for the purpose of this rule may be
vacated ih such manner and subject to such con-
ditions as the Court may direct.
(8.) "Where security is not dispensed with, the
appointment of a person to be judicial trustee shall
not take effect until he has given the security
required by the Court under this rule.
(9.) Any premium payable by a judicial trustee
to any guarantee company on account of his
security may, if the Court so directs, be paid out of
the trust property.
p
210 Judicial Teusteb Eules.
Rule 10. 10. — (1.) When a judicial trustee is appointed,
~ ' 7 a separate account for receipts and payments on
at bank and behalf of the trust must be kept in the name of the
document^ trustccs at some bank approved by the Court.
(2.) All title deeds and all certificates and other
documents which are evidence of the title of the
trustee to any of the trust property shall be deposited
either with that bank or in such other custody as the
Court directs.
(3.) The deeds or documents must be deposited
in the names of the trustees, and the judicial trustee
must give notice to the body or person with whom
the deeds or documents are so deposited not to
deliver any of them over to any person except on a
request signed by the judicial trustee and counter-
signed by the officer of the Court, and also to allow
any person authorised by the officer of the Court in
writing to inspect them during business hours.
(4) The judicial trustee must deposit with the
Court a list of all deeds or documents deposited in
any custody in pursuance of this rule, and must give
information to the Court from time to time of any
variation to be made in the list.
(5.) The judicial trustee must, if at any time
directed by the Court, give an order to the bank at
which the trust account is kept, not to pay at any
one time any sum over a specified amount out of the
trust account except on an order countersigned by
the officer of the Court.
(6.) Any payments on account of the income of
the trust property may be provided for by means of
a standing order to the bank at which the trust
account is kept.
(7.) The Court may give such directions to the
judicial trustee as may, in the opinion of the Court,
be necessary or expedient for carrying this rule into
effect, and for securing the safety of the trust
property.
(8.) Where an official of the Court is judicial
trustee, the Court may direct that, instead of a
separate account of the receipts and payments on
Judicial Trustee Rules. 211
behalf of the trust being kept at some bank approved Rule 10.
by the Court, all receipts on behalf of the trust may '
be dealt with, and all payments on behalf of the
trust may be made, in such manner, and subject to
such regulations as to the accounts to be kept of the
receipts and payments and the procedure to be
followed in dealing therewith, as the Treasury
direct.
11 . — A judicial trustee must pay all money coming Rule 11.
into his hands on account of his trust without delay ~
to the trust account at the bank, and if he keeps any tru'^tee*not to
such money in his hands for a longer time than the ^eep money
Court considers necessary, shall be liable to pay^'^
interest upon it at such rate not exceeding five per
centum as the Court may fix for the time during
which the money remains in his hands.
12. — (1.) A judicial trustee may at any time Rule 12.
request the Court to give him directions as to the
trust or its administration. SSr' *°'
(2.) The request must be accompanied by a state- trustees.
ment of the facts with regard to which directions
are required, and by the fee required under these
rules in respect of a communication from the Court
with regard to the administration of the trust.
(3.) The Court may require the trustee or any
other person to attend at Chambers if it appears
that such an attendance is necessary or convenient
for the purpose of obtaining any information or
explanation required for properly giving directions,
or for the purpose of explaining the nature of the
directions.
13. — The Court, if satisfied that there is no Rule 13.
reasonable doubt of any fact which affects the ~
administration of a trust by a judicial trustee, may drBpenso''with
give directions to the judicial trustee to act without formal
formal proof of the fact. '''^''''^-
212
Judicial Trustee Rules.
Eule 14.
Accounts and
audit
Accounts and Audit.
14. — (1.) The Court shall give directions to a
judicial trustee as to the date to which the accounts
of the trust are to be made up in each year, and
shall fix in each year the time after that date within
which the accounts are to be delivered to it for
audit.
(2.) The accounts shall in ordinary cases be
audited by the officer of the Court, but the Court, if
it considers that the accounts are likely to involve
questions of difficulty, may refer them to a pro-
fessional accountant for report, and order the
payment to him of such amount in respect of his
report as the Court may fix.
Rule 15. 15. — (1.) The accounts of any trust of which
~ 7 there is a judicial trustee, with a note of any
insp°e?tion of corrcctions made upon the audit, shall be filed as the
accounts. Court directs.
(2.) The judicial trustee shall send a copy of the
accounts, or, if the Court thinks fit, of a summary
of the accounts, of the trust to such beneficiaries or
other persons as the Court thinks proper.
(3.) The Court may, if it thinks fit, having
regard to the nature of the relation of the applicant
to the trust, allow any person applying to inspect
the filed accounts so to inspect them on giving
reasonable notice to the officer of the Court.
Enle 16.
Deductions
allowed.
16. — A judicial trustee shall, unless the Court
otherwise directs, be allowed on the audit of his
accounts deductions made on account of his re-
muneration and allowances under these rules and
also on account of the fees paid by him under these
rules, but shall not be allowed any deduction on
account of the expenses of professional assistance,
or his own work, or personal outlay, unless the
deduction has been authorised by the Court in
pursuance of the Act, or the Court is satisfied that
the deduction is justified by the strict necessity of
the case.
Judicial Trustee Rules. 213
Remuneration and Allowances.
17. — (1.) "Where a judicial trustee is to be re- Rule 17.
munerated, the remuneration to be paid to him shall
be fixed by the Court, and may be altered by the ^f^Xiaf °°
Court from time to time. trustee.
(2.) In fixing the remuneration, regard shall be
had to the duties entailed upon the judicial trustee
by the trust.
(3.) The Court may make, if it thinks fit, special
allowances to judicial trustees for the following
matters, to be paid out of the trust property : —
{a) for the statement of trust property prepared
by a judicial trustee on his appointment,
an allowance not exceeding ten guineas ;
(6) for realising and re-investing trust property,
where the property is realised for the pur-
pose of re-investment, an allowance not
exceeding one and a half per centum on
the amount realised and re-invested ;
(c) for realising or investing trust property in<
any other case, an allowance not exceeding-
one per centum on the amount realised or
invested.
(4) The Court may also in any year make a
special allowance to a judicial trustee, if satisfied
that in that year more trouble has been thrown upon
the trustee by reason of exceptional circumstances
than would ordinarily be involved in the adminis-
tration of the trust.
(5.) Where a trustee is remunerated, any allow-
ance under this rule may be paid in addition to his
remuneration.
(6.) Any remuneration or allowance payable to
a judicial trustee shall be paid or allowed to him at
such times and in such manner as the Court directs.
18. — Where an official of the Court is appointed ^ ® '
to be a judicial trustee, any remuneration, allowances, Application
or other payments payable to him on account of his °.f remunera-
services as trustee shall be paid, accounted for, and official of the
applied in such manner as the Treasury direct. ^"^^
214
Judicial Tkcjstee Eules.
R^le 19. 19.— (1.) If the Court is satisfied that a judicial
F rf t f *^'^^*®® ^^^ failed to comply with the Act, or with
remuneration, these rulcs, Or with any direction of the Court or
officer of the Court made in accordance with the Act
or these rules, or has otherwise misconducted him-
self in relation to the trust, the Court may order that
the whole or any part of the remuneration of the
trustee be forfeited.
(2.) This rule shall not afiect any liability of the
judicial trustee for breach of trust or to be removed
or suspended.
(3.) A judicial trustee shall have an opportunity
of being heard by the Court, before any order is
made for the forfeiture of his remuneration or any
part of it.
Eule 20.
sion
of judicial
•trustee.
Rule 21.
Eemoval of
judicial
trustee.
Removal and Suspension of Judicial Trustee.
20. — (1.) The Court may at any time, either
" without any application or on the appHcation of any
person appearing to the Court to be interested in the
trust, suspend a judicial trustee, if the Court con-
siders that it is expedient to do so in the interests of
the trust, and a judicial trustee while suspended
shall not have power to act as trustee.
(2.) When a judicial trustee is suspended, the
Court shall cause notice to be given to such of the
persons appearing to the Court to be interested in
the trust as the Court directs, and also to the persons
having the custody of the trust property, and shall
give any other directions which appear necessary
for securing the safety of the trust property.
21. — (1.) The Court may, either without any
application or on the application of any person
appearing to the Court to be interested in the trust,
remove a judicial trustee if the Court considers that
it is expedient to do so in the interests of the trust.
(2.) Any application to remove a judicial trustee
must be made by summons.
(3.) A judicial trustee shall not be removed by
Judicial Trustee Rules. 215
the Court without an application for the purpose, E.tile 21.
except after notice has been given to him by the
Court of the grounds on which it is proposed to
remove him, and of the time and place at which the
matter will be heard.
(4) The Court shall cause a copy of the notice to
the trustee to be sent to such of the persons appear-
ing to the Court to be interested in the trust as the
Court directs, and the same procedure shall be
followed in the matter so far as possible as on a
summons to remove a judicial trustee.
22. — Where an inquiry into the administration by Rule 22.
a judicial trustee of any trust, or into any dealing or ] ]
transaction of a judicial trustee is ordered, the inquiry conSS °
shall, unless the Court otherwise directs, be conducted judicial
by the officer of the Court, and he shall have the
same powers in relation thereto as he has in relation
to any other inquiry directed by the Court.
Resignation and Discontinuance of Judicial Trustee.
23. — (1.) If a judicial trustee desires to be dis- Rule 23.
charged from his trust, he must give notice to the \ \ —
Court, stating at the same time what arrangements of^udiofai'^
it is proposed to make with regard to the appoint- trustee.
ment of a successor.
(2.) The Court shall give facilities for the ap-
pointment on a proper application of an official of
the Court to be judicial trustee in place of a judicial
trustee who desires to be discharged, in cases where
no fit and proper person appears available for the
office, or where the Court considers that such an
appointment is convenient or expedient in the
interests of the trust.
24. — (1.) Where there is a judicial trustee of a Rtde 24.
trust, the Court may at any time, on the application
made by summons of any person appearing to the ^'53°°/™'^"
Court to be interested in the trust, order that there judicial
shall cease to be a judicial trustee of the trust, *'^"»*6e.
^16 Judicial Trustee Kules.
Rule 24. wlietlier the person who is judicial trustee continues
as trustee or not.
(2.) If the Court is satisfied that all the persons
appearing to the Court to be interested in the trust
concur in an application under this rule, the Court
shall accede to the application, and in any case shall
ascertain as far as may be the wishes of those appear-
ing to the Court to be interested in the trust with
regard to the application.
(3.) Where an order is made under this rule, the
Court shall make all such orders as may be necessary
for carrying it into effect, and where in pursuance
of any such order a new trustee is appointed in the
place of an official of the Court, shall make all such
vesting or other orders and exercise all such other
powers as may be necessary for vesting the trust
property in the new trustee either as sole trustee or
jointly with other trustees as the case requires.
Special Trusts.
Rule 25. 25. — (1.) Any person who is an executor or
administrator may be appointed a judicial trustee
and TdmTnia- ^"^^ *^® purpose of the Collection and distribution of
trators. the estate of a deceased person in the same manner
and subject to the same provisions as in the case of
an ordinary trust.
(2.) Where an administrator has given an ad-
ministration bond, he need not give security as a
judicial trustee under these rules unless the Court
directs that he is to do so.
Rule 26. 26. — (1.) An official of the Court shall not be
appointed or act as judicial trustee for any persons
Special trusts, jj^ their capacity as members or debenture holders of,
or being in any other relation to, any incorporated
or unincorporated company, or any club.
(2.) Where the circumstances of any trust of
which an official of the Court is a judicial trustee, or
of which it is proposed to appoint an official of the
Court to be a judicial trustee, involve the carrying
Judicial Trustee Rules. 217
on of any trade or business, special intimation of the Rule 26.
fact shall be given to the Court either by the judicial
trustee or by the person making the application for
the appointment of the judicial trustee, as the case
may be, and the Court shall specially consider the
facts of the case with a view to determining whether
the ofScial of the Court should continue or be ap-
pointed as judicial trustee, and whether any special
condition should be made or directions given with a
view to ensuring the proper supervision of the trade
or business.
Exercise of the Powers of the Court.
27. — For the purpose of the Act or these rules Rule 27.
the oflBcer of the Court may exercise any power ;
which may be exercised by the Court (including the pg^^ere rf°^
power of making an order for the appointment of a Court,
judicial trustee or making any vesting order), and
may perform any duty to be performed by the Court,
and may hear and investigate any matter which may
be heard or investigated by the Court, subject in any
case to the right of any party to bring any particular
point before the Judge.
28. — (1.) It shall not be necessary to take out a Rule 28.
summons for any purpose under the Act or these
rules, except in cases where a summons is required {?°X'J^ge;
by these rules, or where the Court directs a summons judicial
,■1.1 . trustee and
to be taken out. Court.
(2.) Where a judicial trustee desires to make any
application or request to the Court, or to comnaunicate
with the Court as to the administration of his trust,
he may do so by letter addressed to the officer of the
Court without any further formality.
(3.) The Court may give any direction to a
judicial trustee with regard to the administration of
his trust by letter signed by the officer of the_ Court,
and addressed to the trustee without drawing up
any order or formal document.
218 Judicial Trustee Eules.
Rule 28. (4) For the purpose of the attendance at cham-
bers of the judicial trustee or any other person
connected with the trust for purposes relating to the
administration of the trust, the officer of the Court
may make such appointments as he thinks fit by
letter without the service of formal notices.
(5.) Any document may be supplied for the use
of the Court by leaving it with, or sending it by
post to, the officer of the Court.
District Registries.
Rule 29. 29. — (1.) An originating summons under these
~ — ; rules, for the purpose of an application to appoint a
MgiBtries. judicial trustee, may be sealed and issued in a dis-
trict registry, and appearances thereon shall be
entered in that registry.
(2.) Where a judicial trustee of a trust is ap-
pointed on an originating summons taken out in a
district registry, or an application in any cause or
matter pending in a district registry, all proceedings
with respect to the trust and the administration
thereof under the Act or these rules shall, unless the
Court otherwise directs, be taken in the district
registry,
(3.) Where proceedings under the Act or these
rules are taken in the district registry, the official of
the Court to be appointed judicial trustee where an
official of the Court is to be so appointed, shall not
be the official solicitor, unless the Court for special
reasons otherwise directs.
(4.) For the purpose of the Act and these rules
the Court may transfer any trust of which there is a
judicial trustee from a district registry to London, or
from London to a district registry, or from one dis-
trict registry to another district registry, according
as it appears convenient for the administration of
the trust.
Judicial Teustee Rules. 219
Palatine Courts,
30. — (1.) These rules shall apply to a Palatine Rule 30.
Court as respects trusts within the jurisdiction of
such Court, subject to such modifications (if any) as ^oirts"^
may be made by rules of that Court for the purpose
of making these rules properly applicable having
regard to any special practice of the Court, or the
duties of the officers attached to the Court.
(2.) Where proceedings under the Act or these
rules are taken in the Palatine Court, the official of
the Court to be appointed judicial trustee where an
official of the Court is to be so appointed, shall not
be the official solicitor, unless the Palatine Court for
special reasons otherwise directs.
County Courts.
31. — (1). For the purpose of the Act and these Rule 31.
rules the jurisdiction of the County Court judge
shall extend to any trust in which the trust property ^"""^f^.t^o^'^*
does not exceed in value five hundred pounds, as if
that jurisdiction had been given under section sixty-
seven of the County Courts Act, 1888, but that
jurisdiction shall be exercised only in a Metropolitan
County Court, or in a County Court for the time
being having bankruptcy jurisdiction.
(2.) Where the district of any County Court
(other than a Metropolitan County Court) or any
part of such a district is attached for the purpose of
bankruptcy jurisdiction to some Court other than the
County Court of the district, that district or part
shall be attached to the same Court for the purpose
of jurisdiction under the Act and these rules.
(3.) Where proceedings under the Act or these
rules are taken in the County Court, the official of
the Court to be appointed judicial trustee, where an
official of the Court is to be so appointed, shall not
be the official solicitor, unless the Court for special
reasons otherwise directs.
220 Judicial Trustee Eules.
Rule 31. (4.) Iq the application of these rules to the
County Court a petition shall be substituted for a
summons, whether an ordinary or an originating
summons.
(5.) For the purposes of this rule the expression
" Metropolitan County Court " means any of the
County Courts mentioned in the third schedule of
the Bankruptcy Act, 1883.
Fees.
IlTile 32. 32. — (1.) The fees mentioned in the schedule to
these rules shall be paid in respect of the matters
^^^' therein mentioned.
(2.) The fees paid by a judicial trustee may be
deducted out of the income of the trust property
unless the Court otherwise directs.
(3.) Any fees payable under these rules may be
remitted by post, and may be so remitted in any
manner except by means of postage stamps or coin.
(4.) All fees payable under these rules in the
High Court, Palatine Court, or County Court shall,
except as provided by these rules, be subject to
similar provisions as to payment, account, and
application as other fees payable in those Courts
respectively.
Officer of the Court.
Rule 33. 33. — In these rules the expression " officer of the
; Court " means —
"^offlce°^of^ (a) as regards proceedings in the High Court
Court." other than proceedings in a district registry,
the Chancery Master ; that is to say, the
Master attached to the chambers of the
Judge of the Chancery Division to whom
the matter is assigned ; and
(6) as regards proceedings in a district registry,
any registrar of that registry ; and
Judicial Trustee Rules.
221
(c) as regards proceedings in a Palatine Court, R^ile 33.
any registrar of that Court ;
(d) as regards proceedings in the County Court,
the registrar of the County Court.
Suppleme7itaL
34. — These rules shall be construed, so far as they Rule 34.
relate to the High Court, as one with the Eules of '
the Supreme Court, 1883, and any rules amending ^Mtrued^'M
those rules, so far as they relate to a Palatine Court, part of the
as one with the rules of that Court, and so far as ^FcJurV"^"'
they relate to the County Court, as one with the
County Court Eules, 1889, and any rules amending
those rules.
35. — The Interpretation Act, 1889, shall apply Rule 35,
for the purpose of the interpretation of these rules
as it applies for the purpose of the interpretation of ^^i^^jerpi™
an Act of Parliament.
tation Act.
August 31, 1897.
Halshury, C.
Schedule.
Fees.
d.
The following fees shall be payable nnder these rules : —
1. In. respect of any thing or matter for which a '
fee is provided under the orders in force for the
time being with regard to Supreme Court,
Palatine Court, or County Court fees, as the
case may be.
In respect of any communication from the Court
with regard to the administration of the trust ...
For filing the statement of the trust property
For filing any alteration in the statement ...
For filing the accounts of the trust ...
For filing any other document relating to the trust
For auditing the accounts of the trust when audited
by the officer of the Court, for every 1001. or
fraction of lOOZ. of the gross amount received as
income of the trust without deducting any pay-
ments 2 6
The
fee
so
provided.
2
6
10
5
6
2
6
ii22 Judicial Trustee Eules.
/"A fee equal
On the audit of the accounts of the trust where j to the
they are referred to a professional accountants amount
for report. ) paid to the
^_ accountant.
On the inspection of filed accounts for each hour or
part of an hour occupied ... ... ... ... 2 6
Not exceeding on one day ... ... ... 10
ADDITIONAL RULE DATED 27th APRIL, 1899,
UNDER JUDICIAL TRUSTEE ACT, 1896.
Where an official of the Court is judicial trustee
it shall be lawful for the Bank of England and
Bank of Ireland, and for any other corporation,
company, or public body (all of which other bodies
are hereinafter included in the term " company "), to
open and keep accounts of stocks, shares, annuities,
and securities (all of which are hereinafter included
in the term "stock") in the name of such official
under his official title without naming him, and the
dividends on such stock may from time to time be
received, and such stock, or any part thereof, may
from time to time be transferred by the person for
the time being holding such office without any
order or direction of the Court as if the same stood
in his own name. And without any order or
direction of the Court such official may, by letter of
attorney, authorise the Bank of England, or the
Bank of Ireland, or all or any of their proper
officers, to sell and transfer all or any part of the
stock from time to time standing in the books of
the said banks on such account, and to receive the
dividends due and to become due thereon. And
where, according to the practice of any company
(other than the said banks) such stock is accustomed
to be sold and transferred, or the dividends to be
received by letter of attorney, such official may
authorise such company, or the proper officer or
officers thereof, or any other person, to sell and
Judicial Trustee Eules. 223
transfer all or any part of the stock from time to
time standing in the Dooks of sucli company on such
account, and to receive the dividends due and to
become due thereon. And notwithstanding section
20 of 29 & 30 Vict, c, 39, no request of the Treasury
shall be necessary to authorise any such account of
Government stocks and annuities to be opened, and
no order in writing of the Treasury shall be
necessary for the sale or transfer of any such
Government stocks or annuities.
This rule shall be read with the Judicial Trustees
Rules, 1897,
The 27th of April, 1899.
THE JUDICIAL TRUSTEE RULE (APRIL), 1900,
DATED 21st MAT, 1900.
Notwithstanding anything in these Rules con-
tained, where an official of the Court is sole judicial
trustee, the trust funds and the title deeds, certificates,
and other documents which are evidence of the title
of the trustee to any of the trust property, and all
receipts on behalf of the trust, shall be dealt with,
and all payments on behalf of the trust shall be
made, and accounts shall be kept, in such manner
and subject to such regulations as the Treasury may
direct.
This rule shall be construed as one with the
Judicial Trustee Rules, 1897,
Dated the 21st of May, 1900.
Note. — This rule was signed in confirmation of the rule
signed and declared urgent on the 9th of April, 1900.
APPENDIX A.
(See p. 21, ante.)
In makiiig an investment on real security trustees must con-
sider —
1. The physical nature of the property, (a) The property
should he permanent in nature and value. — "The object of
trustees must ever be to make a permanent investment, that is,
one wMch will be maintained for a considerable period, and
which will not only during that period yield the stipulated
income, but will ultimately, and whenever required, realise the
fuU sum advanced." Per Kekewich, J., re Somerset (1894) 1
Ch. 231. ^
Prima facie trustees ought not to lend on property of a
wasting character, such as mines, quarries, or brickfields, which
from their nature necessarily involve a diminution of the
substance of the security. Nor ought they to lend on property,
the value of which is speculative, or liable to considerable
fluctuation, or the value of which depends on some accidental
circumstance, such as an hotel, or other licensed premises.
In reference to a loan on a brickfield, the following remarks
were made in re Whiteley, 33 CD. 347 : " I have not
adverted to the fact that in a brickfield you are constantly
exhausting the security. ... I agree it would require the
trustee to exercise more caution in lending the money when the
security is on that which from its very nature necessarily
involves a diminution of the substance of the security " {jper
Cotton, L.J. 33 CD., at p. 352). " As an abstract proposition I
am not prepared to say that a freehold brickfield cannot be a
real security within the meaning of the power. It would
clearly be a real security within the power if the value of the
land, apart from the particular trade carried on upon it, was
sufficient to secure the sum advanced ; but where the value of
the land, apart from the particular trade of brickmaking carried
on upon it, is nothing like the sum advanced, the whole aspect
of the case changes. The value of such a brickfield as a security
for money lent on it in excess of the value of the land as land
depends on the trade of brickmaking, and on the probability
of a purchaser being found to buy and work the brickfield in
the event of the mortgage money being called in. This depends
on the state of the brickmaking trade and on the profits which can
be made by selling bricks made in the field in question. More-
over, a lender of money on such a security must exercise unusual
Q
226 Appendix A.
vigilance in seeing that he does not allow the money to remain
tincalled in longer than is safe. A security of so hazardous a
nature as this is not a proper security for trust money ; it is not
in truth a real security for any sum beyond the value of the
land as land " (per Lindley, L. J., in re Whiteley, supreb). " The
investment is not (a proper real security). Its value mainly
depends on the success of a speculative and fluctuating business,
a business for which it is difficult to find customers, a business
largely depending on the energy and solvency of those working
it, a business of necessity of precarious duration, which cannot
be carried on without such an excavation and destruction of the
soil as must eventually leave what remains nearly useless for
agricultural and other purposes. It is said that the trustees
could call in or realise the security before any serious depreci-
ation of the property took place. I do not think trustees are
justified in investing trust funds in any property where active
and exceptional vigUance and diligence is requisite on their part
to anticipate and prevent a loss to their cestuis que trust " (jper
Lopes, L.J., in re Whiteley^ swpra).
The principle of Learoyd v. Whiteley, swpra, extends to all
premises devoted to trade. Trustees 'pri/ma facie cannot regard
premises devoted to trade as proper investments. In a case
(Stiohney v. Sewell, 1 Cr. & My. 8) relating to a loan on a
windmill, it was said : " One of the witnesses states as a cause
that raised the value, that there was only one other windmiU
there in 1815, whereas now there are three. You cannot say
that it is a proper investment which derives its value from the
accidental absence of competition in trade." And in Stretton v.
Ashmall, 3 Drew. 9 : " Now that property appears to be prin-
cipally of a nature for carrying on trade, and I observe for that
reason alone, it is property liable to great fluctuation in value."
And in Sheffield Building Society v. Aizlewood, 44 CD. 412 :
" The property (a colliery) was of a speculative description,
and dependent for its value on the course of trade. Such pro-
perty would not, according to Learoyd v. Whiteley, have formed
a proper subject for an advance by trustees of an ordinary will
or settlement." And in re Somerset (1894) 1 Ch. 231 : " Learoyd
V. Whiteley is a warning to trustees that land devoted to trade
may not be regarded as a proper security at all."
With reference to a loan on a colliery, it has been said
(Sheffield Building Society v. Aizlewood, sv/pra) : " It is said the
advance . . . was not made on such security [freehold, copyhold,
or leasehold estates], but on the security of the colliery carried
on by Mr. Joseph. In fact, however, the properties were held
under leases, and constituted leasehold estate. The leases
included minerals which were to be worked and got by the
lessees. The property offered as security was therefore to some
extent of a wasting nature, and its value was affected by its
being used for the purposes of the colliery business carried on
by Joseph. Those were matters fit and proper to be considered
in determining what amount should be advanced on the security
of the leasehold property; but, in my judgment, it cannot be
Investment on Real Security. 227
said that the society was precluded, hy reason of the evidence of
these circumstances, from making any advance, however small,
on mortgage of it." In that case the mortgagees were trustees
of a building society, and it was held that trustees of a building
society may properly make advances on classes of securities
forbidden to ordinary trustees, and that they are not under an
obligation to avoid investments attended with hazard.
Referring to a loan on licensed premises, it has been said :
" The value of an hotel is necessai-ily of a very speculative
character, and may, like the property in the case of Stiokney v.
Sewell, supra, arise from accident. It was a security which
trustees were not justified in taking." Budge v. Ghimmow, 7
Ch. 719.
(6) The property should he income-producing. — Prima facie
trustees ought not to lend on the security of property which, in
the event of the mortgagor not being able to pay, cannot readily
be made available to yield income to pay the interest on the
mortgage. No express limits as to the proportion between the
amount of the interest and the income of the security have ever
been laid down. It is conceived, notwithstanding the dictum
of Kekewich, J., below cited, that, as a general rule, the interest
should not exceed two-thirds of the income. In reference to
this point, the following observations were made in re Whiteley,
supra : " Trustees are bound to preserve the money for those
entitled to the corpus in remainder, and they are bound to
invest it in such a way as will produce a reasonable income for
those enjoying the income for the present " (per Cotton, L.J.)
And in Smethurst v. Hastings, 30 CD. 490, referring to a loan
on unfinished houses, unlet, and on a building estate of which
the roads and drainage were in a defective condition : " Can it
be said that any prudent man . . . would venture his money to
the extent of more than half the estimated value of the property,
when that property consisted of houses, recently built, unoccupied,
not wholly finished, producing no fixed certain rents. . . . The
investment upon mortgage of houses, which would not be
immediately occupied, and from which rents were not secured,
nor receivable, was a breach of the duties of the trustees " (j)er
Bacon, V.O.). See, too, Mara v. Browne (1895) 2 Ch. 69, per
North, J. And in re Somerset (1894) 1 Ch. 231 : " The object
of trustees must ever be to make a permanent investment, that is
one which will be maintained for a considerable period, and
which will not only during that period yield the stipulated
income, but will ultimately . . . realise the full sum advanced.
Trustees must regard any advice given to them from this double
point of view, and cannot be absolved from liability for loss
arising from a particular transaction by showing that their
advance was within the allowed limits as regards capital if they
were exceeded as regards income, and the income was insuffi-
cient to pay the stipulated interest. 1 express myself thus,
because the limits stated with reference to capital have not been
specifically applied to income ; and I am not sure that, as regards
income, some larger latitude might not safely be permitted "
228 Appendix A.
(^er Kekewicb, J.). And in Chapman v. Browne (1902) 1 CH. 785 :
" Our Courts haye always considered it a matter of importance
to be borne in mind by a trustee contemplating an advance of
trust money on security of realty . . . that tbe security should
be one, which, in case of the mortgagor not being able to pay,
could readily be made available to yield income to pay the
interest which might be required by a tenant for life, or possibly
for the maintenance of some infant cestui que trust."
(c) The property should be readily marJcetable. — Prima facie
trustees ought not to lend on property which will not readily,
and whenever required, realise the full sum advanced.
In reference to this point, the following observations were
made in re Whiteley, supra : " The valne of such a brickfield aa
a security for money lent on it in excess of the value of the land
as land depends on the trade of brickmaking, and on the
probability of a purchaser being found to buy and work the
brickfield in the event of the mortgage money being called in.
This depends on the state of the brickmaking trade and on the
profits which can be made by selling bricks made in the field in
question " {jper Cotton, L.J.). And in the same case in the
House of Lords (Learoyd v. Whiteley, supra) : " A security of a
peculiarly hazardous character . . . the value of the buildings
and fixed machinery depended entirely on the mortgagees being
able to find a purchaser for it as a going concern for the manu-
facture of bricks " (per Lord Fitzgerald). And in Smethurst v.
Hastings, 30 CD. 490 : " The houses were unfit for the invest-
ment of trust funds — that being only in course of erection, or
recently erected, they were of merely speculative value, not of
readily marhetahle value, and that their selling value was less
than the several sums advanced " (jper Bacon, V.C.).
2. The estate or interest in the property of the mortgagor.
(a) Its possible duration. — The estate may be freehold or less
than freehold. Freehold estates are for life, in tail, or in fee
simple. Estates less than freehold are for years, at will, or at
sufferance.
Estates less than freehold are not real property, Townend v.
Townend, 1 Giff. 201, at p. 211. There is, however, a dictum of
Jessel, M.E., in re Ghennell, 8 CD. 492, to the effect that a
mortgage of leaseholds for a long term at a peppercorn rent
without onerous covenants would be a "real security." In the
later case of re Boyd's Settled Estates, 14 CD. 626, the same
judge said that, as a general rule, long terms of years do not
answer the description of real securities. And see Leigh v. Leigh
(1886) W.N, 191, where Stirling, J., held that a long term was
not a real security. See now section 5 of the 1893 Act,
ante, p. 34.
A life interest, or lease for lives {Lander v. Weston, 3 Drew.
389), is not a proper, though, it is conceived, it is an authorised,
security. This is so although the security also comprises a
policy of life assurance on the cestui que vie. Lander v. Weston,
supra.
Investment on Ebal Secukity. 229
A tenant in tail cannot create a mortgage valid against the
remaindermen, except by an enrolled deed, creating a fee simple,
either absolate or base.
Life leaseholds, perpetually renewable, have been held a not
improper security. It is the common tenure of land in Ireland,
and differs very little from a fee simple. Macleod v. Annesley,
16 Beav. 600. See, however, a decision of Shadwell, V.O., ti
the contrary, mentioned by Jessel, M.R., in re Boyd, 14 CD.
627. It is conceived that the risk of failure to renew within
due time brings the security within the observations in re
Whiteley, cited ante, p. 225, as to the impropriety of lending on
securities requiring active and exceptional vigilance to anticipate
and prevent loss.
An estate in fee simple may be absolute, qualified (or base),
or conditional. Fee simple absolute is the ordiaary unqualified
estate limited to a man and his heirs, and is understood to be
intended by the term " fee simple " without any more. A
" qualified " or " base fee " is where a qualification is annexed
to the estate, so that it must determine whenever the qualifica-
tion is at an end ; e.g. a grant to " A. and his heirs, tenants of
the Manor of Dale," is a base fee (Co. Litt. 27a). A more
familiar instance of a base fee is the estate created by a tenant
in tail barring his issue by an enrolled deed, but failing to create
a fee simple absolute, for want of the concurrence of the pro-
tector of the settlement. A conditional fee at the common law
was a fee restrained to some particular heirs exclusive of others.
Such estates were converted by the statute De donis into estates
tail. They are only now met with in copyholds to which the
statute De donis has no application. Whether a base fee could
be a proper security for trust moneys must, it is conceived,
depend on the nature of the qualification attached to the estate.
Prima, facie, to lend on an estate capable of determination, would
be hazardous, and therefore an improper act on the part of a
trustee, unless, indeed, the qualification attached to the estate
be so remote as to be practically negligible.
A fee simple absolute may be subject to a condition. Such
an estate is created by a grant of land for building purposes,
limiting a fee farm rent-charge, and subject to covenants for
building and a condition for re-entry. Whether land so held can
be a proper security for trust money must, it is conceived, depend
on the amount of the rent, as compared with the income of the
land from which it issues (see Macleod v. Annesley, 16 Beav.
600), and the nature of the covenants, or events, giving rise to
the right of re-entry. It is conceived that where the rent is
amply secured, and where the covenants are not onerous, and
are of such a character that relief from forfeiture for breach
thereof could be obtained under the Conveyancing Acts, trustees
would not be precluded from lending. But where the rent is
large and the security for it slender, or where there exist cove-
nants or conditions, from forfeiture for breach of which no relief
could be obtained, trustees would not be justified in lending.
(6) Its time of enjoyment. — The mortgagor's estate may be
230 Appendix A.
in possession or in expectancy. Prima facie trustees should
only lend on estates in possession.
An estate in expectancy may be either expectant on a term
of years, or on a life estate, or estate tail.
A reversion expectant on a term of years is only in a some-
what qualified sense a reversion ; the right to immediate posses-
sion is postponed, but the reversioner remains seised of the
immediate freehold. Thus, in the ordinary case of a lease for
years at a rent, the right to the rent is annexed to the reversion ;
and the receipt of the rent is, in fact, only a mode of enjoyment
by the reversioner of the present profits of the land. A loan on
the security of an estate in fee simple absolute, in land or
buildings, subject to a long lease reserving a ground rent, is a
proper trustee investment. Yickery v. Evans, 33 Beav. 376 ; and
see re Peyton, 7 Eq. 463. As to the amount which can properly
be lent on such a security, see ante, p. 44.
A reversion expectant on a lease for life at a rent would, it
is conceived, also form a proper authorised security.
A reversion expectant on a particular estate out of which no
rent is limited, though, undoubtedly, an authorised security (see
re Turner (1897) 1 Ch. 536), is not a proper security for trustees ;
it is not income-producing, it is not freely marketable, and its
value is extremely speculative.
(c) Its nature. — The mortgagor's estate may be either legal
or equitable, and may be either joint, in common, or several,
and may be or not be subject to incumbrances.
Trustees cannot safely invest on the security of an equitable
mortgage {Chapman v. Browne (1902) 1 Ch. 783), whether the
legal estate remain vested in a prior legal mortgagee {Drosier v.
Brereton, 15 Beav. at p. 226 ; Robinson v. Bobinson, 1 De G.M. & G.
247 ; Lodkhart v. Beilhi, De G. & J. 464 ; Sheffield B.8. v. AizU-
wood, 44 CD. 412, at p. 459), or in the mortgagor (Norris v.
Wright, 14 Beav. at p. 308 ; Swaffield v. Nelson, 1876, W.N. 255),
and although the deeds be deposited with the mortgagee, and the
mortgagor undertake to execute a legal mortgage when called
on {^Swaffield v. Nelson, supra), nor accept any title where the legal
estate is outstanding, except when the title is such that under
no circumstances can the acquisition of the legal estate become
necessary for its protection.
A mortgage of the undivided interest of a joint tenant or
tenant in common, though undoubtedly " real security " (re
Turner (1897),1 Ch. 536), cannot be considered a desirable form
of investment for trustees. Such an interest is not readily
naarketable ; the control of the trustee over the property is not
absolutely in his own hands; it is not desirable that trust
moneys should in any way become complicated with the rights
and interests of other persons; and the risk of becoming
involved in a long and expensive partition action cannot be
ignored.
3. The market value of the property and amount of loan. —
See notes to section 8 of the Trustee Act, 1893, ante, p. 42.
Investment on Kbal Security. 231
4. The form of the security, (a) The security should vest
in the mortgagee the legal estate. — The necessity of acquiring
the legal estate has already been referred to, ante, p. 230. A
legal sub-mortgage is unobjectionable. Smethurst v. Hastings,
30 CD. 490.
The question arises, whether a registered charge, under the
Land Transfer Acts, is a proper security for trust money. It
is conceived that it is not. A registered charge does not confer
the legal estate, and, although for many purposes a registered
charge is free from the risks attaching to an ordinary equitable
mortgage, yet, for some purposes, the possession of the legal
estate is of vital importance. It is pointed out (Brickdale and
Sheldon on the Land Transfer Acts, p. 35) that if the mortgagee
wish to enter on the land, or if he obtain foreclosure, the legal
estate would still be of use, and would be difficult to obtain.
The recent case of Capital and Counties Bank, Limited v. Rhodes
(1903) 1 Ch. 631, illustrates the importance of the legal estate
in the case of a security on a reversion expectant on a term of
years. The right of re-entry for breach of covenant passed with
the reversion. Had the plaintiffs in that case merely had a
registered charge, they would not have been in a position to
enforce the covenants and conditions in the lease. See also
infra, as to ejectment. Of. 48 Sol. J. 451.
(b) The security should vest in the mortgagee sole control over
the property. — A loan on a contributory mortgage, in the names
of the trustees and other persons jointly, or (where there is na
contribution of mortgage money) a loan on the security of a
mortgage in the names of themselves and a stranger, is a breach
of trust. Webb v. Jonas, 39 CD. 660.
" Trustees are bound to invest on a mortgage where they
have the entire control in their own hands, and where they can
exercise their own discretion for the benefit of their cestuis que
trust, and not where they are bound to consult others, or where,
if they do not consult others, they are bound to act for the
benefit of others as well as for themselves." Per Kekewich, J.,
in Webb v. Jonas, 39 CD. at p. 668. See also Stokes v. Prance
(1898) 1 Ch. 212 ; re Massingberd, 63 L.T. 297.
(c) The security should be enforceable by sale. — It is not a
breach of trust for a trustee to take a mortgage not containing,
or conferring, a power of sale. Farrar v. Barraclough, 2 Sm. &
G-. 231. Nevertheless, trustees should insist on having either
the statutory or an express power.
(d) The security should be enforceable by ejectment and fore-
closv/re. — The security ought to be such as to be capable of being
enforced by ejectment and by foreclosure. Mant v. Leith, 15
Beav. 524. A mortgage of the undertaking of a railway com-
pany pursuant to the Companies Clauses Act, 1845, does not
comply with these requirements. Mant v. Leith, supra ; Morti-
more v. Mortimore, 4 De G. & J. 472. As to road bonds, see
Holgate v. Jennings, 24 Beav. 623 ; Bohinson v. Bobinson, 1 De
G.M. & G. 247.
A registered charge under the Land Transfer Acts can be
232 Appendix A.
enforced by foreclosure (see section 26 of the Act of 1875).
Although section 25 of that Act confers a right to enter upon
the land charged, it does not enable the mortgagee to eject a
tenant, for the person in ■whom the legal estate is vested is a
necessary party to an ejectment action. Allen v. Woods, 68 L.T.
143. Possibly, the proprietor of the charge could make the
person in whom the legal estate is vested a defendant in the
ejectment action, but it is stated (Annual Practice (1903), p. 275)
that the practice is, in the K.B.D., to allow as defendants in the
action only sach persons as are in possession of the land. If
this be so, the proprietor of the charge would first be compelled
to get in the legal estate, pursuant to the covenants for title,
and this might lead to great difficulty and expense. Of. Webb
V. Jonas, 39 CD. at p. 668, as to securities which involve the
bringing of additional parties before the Court on any proceed-
ings affecting them.
(e) The security should not prohibit the calling in of the
mortgage money. — Trustees are not justified in inserting a pro-
vision in a mortgage that it shall not be called in for a certain
period. VicJcery v. Evans, 33 Beav. 376 ; Mant v. Leith, 15
Beav. 524. " TJnder the powers in the Act of Parliament, the
security (a railway mortgage) cannot be enforced, in the
ordinary way, by ejectment or foreclosure ; payment cannot be
demanded for seven years, and can only be made available by a
sale ; and the parties in remainder may happen to become
entitled to receive the money before the expiration of that time,
and yet may be unable to realise it except by a forced sale, and
possibly at a great disadvantage. Taking all the circumstances
into consideration, I am of opinion that this was not a proper
investment for the trustee to make." Per Romilly, M.R., Mant
V. Leith, supra..
In Vichery v. Evans, supra, the same judge said in a case
where an ordinary mortgage contained a condition that the
money should not be called in for five years : " This point was
also referred to — that the money was lent on a condition that it
should not be called in for five years, and as the mortgage deed
is dated October, 1862, the plaintiff (reversioner) might be kept
out of his money if the tenant for life were to die before the
five years. I think the plaintiff would in that event be entitled
either to have a transfer of the mortgage or to have the mort-
gage sold and the deficiency made up by the trustees, because
he is entitled to payment at once."
(/) The security should contain a covenant for payment. —
Trustees are bound to consider all the circumstances, including
the means of the mortgagor.
" On the question how far, if at all, trustees may properly
rely on the position of the borrower, there is, so far as I am
aware, no authority. [But see Sheffield B.8. v. Aizlewood,
post, p. 233]. Men of ordinary care and prudence managing
their own affairs, would, no doubt, take this into consideration,
and in the mercantile world it is frequently treated as equally
important with the value of the security. It is impossible, I
Investment on Eeal Security. 233
think, to exclude it from tbe consideration of trustees, who are
bound to have regard to all the circumstances connected with
any proposed advance on security, and it would not he difficult
to put cases in which the solvency or insolvency of the borrower
would properly influence them in making an advance somewhat
in excess of the limits generally allowed, or deohning the trans-
action altogether ; but where the object is to make a permanent
investment of trust money on mortgage of real estate, it seems
to me wrong to advance a sum largely in excess of what is
otherwise right because it is believed that the borrower is now,
and it is anticipated that he will remain, capable of paying the
principal and interest or such part thereof as cannot be realised
from the security." Per Kekewich, J., in re Somerset (1894) 1
Ch. 231 ; and see re Turner (1897) 1 Ch. 536, per Byrne, J. : "I
think if he (the trustee) was a businesslike man, he would not
before lending his money have been satisfied without some
further inquiry as to the means of the mortgagor."
The extent to which the personal security of the borrower
(or other collateral personal security) may be relied on is defined
by Stirling, J., in Sheffield Building Society v. Aizlewood, 44
CD. at p. 451, a case of a building society authorised to lend
on freehold, copyhold, or leasehold estates, which it is con-
ceived, on this particular point, applies equally to trustees.
" It was not disputed in argument, and in my judgment,
properly, that a building society making an advance to a member
on the security of freehold, copyhold, or leasehold estate, might
take from him a personal covenant for payment of what might
be due from him to the society, and I think that the officers of
the society might, to a large extent, and for certain purposes,
rely on the solvency of the mortgagor. For example, an action
on the covenant of a solvent borrower affords an effectual and
comparatively speedy and inexpensive mode of recovering what
is due, and may be the means of avoiding the delay, costs, and
liability incident to remedies (such as foreclosure, sale, or entry
into possession) available only against the subject-matter of the
security. If the circumstances of the borrower are such that
his personal covenant is without value, the building society
may, in my opinion, secure a like advantage by means of the
personal guarantee of a third party or a charge on some readily
available pure personal estate. The benefit so obtained must,
however, be purely collateral, and the validity or propriety of
the transaction is to be tested as if no such ingredient entered
into it. If there be no freehold, copyhold, or leasehold estate
comprised in the security, or if the estate so comprised be merely
nominal or its value out of all proportion to the amount
advanced, the transaction is beyond the powers of the society,
and invalid. But where, as here, the borrower offers as security
such estate to a substantial extent, an advance is within the
powers conferred by the Act of 1874, and the question for the
officers of the society to determine is, what amount may be
properly advanced, and that question they must decide having
regard solely to the natnre and value of the freehold, copyhold,
234 ■ Appendix A,
or leasehold estate offered to them, and witliout reference to
the solvency of the horrower, or the worth of any personal
estate he may be -willing to throw in by way of security."
(g^ The security should not he a " stock mortgage," — Trustees
are not justified in lending on a stock mortgaga " It must not
be a stock mortgage but mortgage in the ordinary way for
securing certain fixed capital." Per GifEard, L.J., Whitney v.
Smith, 4 Ch. 513.
(A) Copyholds. — In a mortgage of copyholds, trustees should
not rely on a mere covenant to surrender, but a conditional
surrender should be effected. The mortgagee is not usually
admitted until he wishes to realise his security.
APPENDIX B.
TRUSTEE ACT, 1893.
56 & 67 Vict. c. 53.
An Act to consolidate Enactments relating to Trustees.
[22iid September, 1893.]
Be it enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows : —
PART I.
Intbstments.
Section 1. — A trustee may, unless expressly forbidden by Sect. 1.
the instrument (if any) creating the trust, invest any trust
funds in his hands, whether at the time in a state of investment Authorised
or not, in manner following ; that is to say — investments.
(a.) In any of the parliamentary stocks or public funds or
Government securities of the United Kingdom :
(6.) On real or heritable securities in Great Britain or
Ireland :
(c.) In the stock of the Bank of England or the Bank of
Ireland :
(rf.) In India Three and a half per cent, stock and India
Three per cent, stock, or in any other capital stock
which may at any time hereafter be issued by the
Secretary of State in Oonncil of India under the
authority of Act of Parliament, and charged on
the revenues of India :
(e.) In any securities the interest of which is for the time
being guaranteed by Parliament :
(/.) In consolidated stock created by the Metropolitan Board
of Works, or by the London County Council, or in
debenture stock created by the Receiver for the
Metropolitan Police District :
(jr.) In the debenture or rentcharge, or guaranteed or
preference stock of any railway company in Great
Britain or Ireland incorporated by special Act of
236 Appendix B.
Sect. 1. Parliament, and having during each of the ten years
last past before the date of investment paid a dividend
at the rate of not less than three per centum per
annum on its ordinary stock :
(^.) In the stock of any railway or canal company in Great
Britain or Ireland whose undertaking is leased in
perpetuity or for a term of not less than two hundred
years at a fixed rental to any such railway company
as is mentioned in subsection (gr.), either alone or
jointly with any other railway company:
(i.) In the debenture stock of any railway company in
India the interest on which is paid or guaranteed by
the Secretary of State in Council of India :
(y.) In the " B " annuities of the Eastern Bengal, the East
Indian, and the Scinde Punjaub and Delhi Railways,
and any like annuities which may at any time here-
after be created on the purchase of any other railway
by the Secretary of State in Council of India, and
charged on the revenues of India, and which may
be authorised by Act of Parliament to be accepted
by trustees in lieu of any stock held by them in the
purchased railway ; also in deferred annuities com-
prised in the register of holders of annuity Class D.
and annuities comprised in the register of annuitants
Class C. of the Bast Indian Hallway Company :
CA;.) In the stock of any railway company in India upon
which a fixed or minimum dividend in sterling is
paid or guaranteed by the Secretary of State in
Council of India, or upon the capital of which the
interest is so guaranteed :
(Z.) In the debenture or guaranteed or preference stock of
any company in Great Britain or Ireland, established
for the supply of water for profit, and incorporated
by special Act of Parliament or by Royal Charter,
and having during each of the ten years last past
before the date of investment paid a dividend of not
less than five pounds per centum on its ordinary
stock :
(«.) In nominal or inscribed stock issued, or to be issued, by
the corporation of any municipal borough having,
according to the returns of the last census prior to
the date of investment, a population exceeding fifty
thousand, or by any county council, under the
authority of any Act of Parliament or Provisional
Order :
(«.) In nominal or inscribed stock issued or to be issued by
any commissioners incorporated by Act of Parliament
for the purpose of supplying water, and having a
compulsory power of levying rates over an area
having, according to the returns of the last census
prior to the date of investment, a population exceed-
ing fifty thousand, provided that during each of the
Trustee Act, 1893. 237
ten years last past before the date of investment the Sect. 1.
rates levied by such commissioners shall not have ■ ■
exceeded eighty per centum of the amount authorised
by law to be levied :
(o.) In any of the stocks, funds, or securities for the time
being authorised for the investment of cash under
the control or subject to the order of the High
Court,
and may also from time to time vary any such investment.
Section 2. — (1.) A trustee may under the powers of this Sect. 2.
Act invest in any of the securities mentioned or referred to in ■
section one of this Act, notwithstanding that the same may be Purchase at
redeemable, and that the price exceeds the redemption value. ^ premium ot
_ (2.) Provided that a trustee may not under the powers of jtockg'"''''^®
this Act purchase at a price exceeding its redemption value
any stock mentioned or referred to in subsections (g.), (i.), (k.),
(I.), and (w.) of section one, which is liable to be redeemed
within fifteen years of the date of purchase at par or at some
other fixed rate, or purchase any such stock as is mentioned or
referred to in the subsections aforesaid, which is liable to be
redeemed at par or at some other fixed rate, at a price exceeding
fifteen per centum above par or such other fixed rate.
(3.) A trustee may retain until redemption any redeemable
stock, fund, or security which may have been purchased in
accordance with the powers of this Act.
Section 3. — Every power conferred by the preceding sections Sect. 3.
shall be exercised according to the discretion of the trustee, but
subject to any consent required by the instrument, if any, Diaoretion of
creating the trust with respect to the investment of the trust trusteea.
funds.
Section i, — The preceding sections shall apply as well to Sect, 4.
trusts created before as to trusts created after the passing of
this Act, and the powers thereby conferred shall be in addition Application
to the powers conferred by the instrument, if any, creating of preceding
the trust. sections.
Section 5. — (1.) A trustee having power to invest in real Sect. 5.
securities, unless expressly forbidden by the instrument creating ■
the trust, may invest and shall be deemed to have always had Enlargement
power to invest — °^ expreas
(a) on mortgage of property held for an unexpired term of ■'"^gt^gjit
not less than two hundred years, and not subject to
a reservation of rent greater than a shilling a year,
or to any right of redemption or to any condition for
re-entry, except for non-payment of rent; and
(6) on any charge, or upon mortgage of any charge, made
under the Improvement of Land Act, 1864.
(2.) A trustee having power to invest in the mortgages or
bonds of any railway company or of any other description of
238 Appendix B.
Sect. 6. company may, unless the contrary is expressed in the instra-
ment authorising the investment, invest in the debenture stock
of a railway company or such other company as aforesaid.
(3.) A trustee having power to invest money in the deben-
tures or debenture stock of any railway or other company may,
nnless the contrary is expressed in the instrument authorising
the investment, invest in any nominal debentures or nominal
debenture stock issued under the Local Loans Act, 1875.
(4.) A trustee having power to invest money in securities
in the Isle of Man, or in securities of the government of a
colony, may, unless the contrary is expressed in the instrument
authorising the investment, invest in any securities of the
Goverament of the Isle of Man, under the Isle of Man Loans
Act, 1880.
(5.) A trustee having a general power to invest trust
moneys in or upon ' the security of shares, stock, mortgages,
bonds, or debentures of companies incorporated by or acting
under the authority of an Act of Parliament, may invest in,
or upon the security of, mortgage debentures duly issued under
and in accordance with the provisions of the Mortgage Deben-
tare Act, 1865.
Sect. 6. Section 6. — A trustee having power to invest in the purchase
of land or on mortgage of land may invest in the purchase, or
Power to on mortgage of any land, notwithstanding the same is charged
invest, not- with a rent under the powers of the Public Money Drainage
S^a^e^"^^ Acts, 1846 to 1856, or the Landed Property Improvement
charges. (Ireland) Act, 1847, or by an absolute order made under the
Improvement of Land Act, 1864, unless the terms of the trust
expressly provide that the land to be purchased or taken in
mortgage shall not be subject to any such prior charge.
Sect. 7. Section 7. — (1.) A trustee, unless authorised by the terms
of his trust, shall not apply for or hold any certificate to bearer
Trastees not issued under the authority of any of the following Acts, that is
to convert to say —
inscribed z^-) Tte India Stock Certificate Act, 1863 ;
certiflStes to IV Tie National Debt Act, 1870 ;
bearer. (c) The Local Loans Act, 1875 ;
(d) The Colonial Stock Act, 1877.
(2.) Nothing in this section shall impose on the Bank of
England or of Ireland, or on any person authorised to issue
any such certificates, any obligation to inquire whether a
person applying for such a certificate is or is not a trustee, or
subject them to any liability in the event of their granting any
such certificate to a trustee, nor invalidate any such certificate
if granted.
Sect. 8. Section 8. — (1.) A trustee lending money on the security
■ of any property on which he can lawfully lend shall not be
Loans and chargeable with breach of trust by reason only of the proportion
investments feome by the amount of the loan to the value of the property at
Tkustee Act, 1893. 239
the time when the loan was made, provided that it appears to Sect. 8.
the Court that in making the loan the trustee was acting upon
a report as to the value of the property made by a person whom by trustees
he reasonably believed to be an able practical surveyor or valuer no* charge-
instructed and employed independently of any owner of the tgt.chea of
property, whether such surveyor or valuer carried on business tnjjt
in the locality where the property is situate or elsewhere, and
that the amount of the loan does not exceed two equal third
parts of the value of the property as stated in the report, and
that the loan was made under the advice of the surveyor or
valuer expressed in the report.
(2.) A trustee lending money on the security of any lease-
hold property shall not be chargeable with breach of trust only
upon the ground that in making such loan he dispensed either
wholly or partly with the production or investigation of the
lessor's title.
(3.) A trustee shall not be chargeable with breach of trust
only upon the ground that in effecting the purchase of or in
lending money upon the security of any property he has accepted
a shorter title than the title which a purchaser is, in the absence
of a special contract, entitled to require, if in the opinion of the
Court the title accepted be such as a person acting with prudence
and caution would have accepted.
(4.) This section applies to transfers of existing securities
as well as to new securities, and to investments made as well
before as after the commencement of this Act, except where an
action or other proceeding was pending with reference thereto
on the twenty-fourth day of December one thousand eight
hundred and eighty-eight.
Section 9. — (1.) Where a trustee improperly advances trust Sect. 9.
money on a mortgage security which would at the time of the
investment be a proper investment in all respects for a smaller Liability for
sum than is actually advanced thereon the security shall be ^°^^ ^y
deemed an authorised investment for the smaller sum, and the improper
trustee shall only be liable to make good the sum advanced in investments,
excess thereof with interest.
(2.) This section applies to investments made as well before
as after the commencement of this Act except where an action
or other proceeding was pending with reference thereto on the
twenty-fourth day of December one thousand eight hundred
and eighty-eight.
PART II.
Vahious Powers and Duties of Trustees.
Appointment of New Trustees. gg^^ j^q_
Section 10.— (1.) Where a trustee, either original or sub-
stituted, and whether appointed by a Court or otherwise, is Power of
dead, or remains out of the United Kingdom for more than ^PP"!"^*'^",^
' now trUSl)66S.
240 Appendix B.
Sect. 10. twelve moBths, or desires to be discbarged from all or any of
the trusts or powers reposed in or conferred on him, or refuses
or is unfit to act therein, or is incapable of acting therein, then
the person or persons nominated for the purpose of appointing
new trustees by the instrument, if any, creating the trust, or if
there is no such person, or no such person able and willing to
act, then the surviving or continuing trastees or trustee for the
time being, or the personal representatives of the last surviving
or continuing trustee, may, by writing, appoint another person
or other persons to be a trustee or trustees in the place of the
trustee dead, remaining out of the United Kingdom, desiring to
be discharged, refusing, or being unfit or being incapable, as
aforesaid.
(2.) On the appointment of a new trustee for the whole or
any part of trust property —
(a) the number of trustees may be increased ; and
(6) a separate set of trustees may be appointed for any part
of the trust property held on trusts distinct from
those relating to any other part or parts of the trast
property, notwithstanding that no new trustees or
trustee are or is to be appointed for other parts of
the trust property, and any existing trustee may be
appointed or remain one of such separate set of
trustees ; or, if only one trustee was originally ap-
pointed, then one separate trustee may be so appointed
for the first-mentioned part ; and
(c) it shall not be obligatory to appoint more than one new
trustee where only one trustee was originally appointed,
or to fill up the original number of trustees where
more than two trustees were originally appointed;
but, except where only one trustee was originally
appointed, a trustee shall not be discharged under
this section from his trust unless there will be at
least two trustees to perform the trust ; and
(d) any assurance or thing requisite for vesting the trust
property, or any part thereof, jointly in the persons
who are the trustees, shall be executed or done.
(3.) Every new trustee so appointed, as well before as after
all the trust property becomes by law, or by assurance, or other-
wise, vested in him, shall have the same powers, authorities,
and discretions, and may in all respects act, as if he had been
originally appointed a trustee by the instrument, if any, creating
the trust.
(4.) The provisions of this section relative to a trustee who
is dead include the case of a person nominated trustee in a will
but dying before the testator, and those relative to a continuing
trustee include a refusing or retiring trustee, if willing to act
in the execution of the provisions of this section.
(5.) This section appHes only if and as far as a contrary
intention is not expressed in the instrument, if any, creating
the trust, and shall have effect subject to the terms of that
instrument and to any provisions therein contained.
Tkustee Act, 1893. 241
(6.) This section applies to trusts created either before or gect. 10.
after the commencement of this Act. '
Section 11. — (1.) Where there are more than two trustees, Sect. 11.
if one of them by deed declares that he is desirous of being dis-
charged from the trust, and if his co-trastees and such other Eetirement
person, if any, as is empowered to appoint trustees, by deed of trustee.
consent to the discharge of the trustee, and to the vesting in
the co-trustees alone of the trust property, then the trustee
desirous of being discharged shall be deemed to have retired
from the trust, and shall, by the deed, be discharged therefrom
under this Act, without any new trustee being appointed in
his place.
(2.) Any assurance or thing requisite for vesting the trust
property in the continuing trustees alone shall be executed
or done.
(3.) This section applies only if and as far as a contrary
intention is not expressed in the instrument, if any, creating the
trust, and shall have effect subject to the terms of that instru-
ment and to any provisions therein contained.
(4.) This section applies to trusts created either before or
after the commencement of this Act.
Section 12. — (1.) Where a deed by which a new trustee is Sect. 12.
appointed to perform any trust contains a declaration by the ■
appointor to the effect that any estate or interest in any land Vesting of
subject to the trust, or in any chattel so subject, or the right to trust pro-
recover and receive any debt or other thing in action so subject, P®''? J? °?^
shall vest in the persons who by virtue of the deed become and trultees.
are the trustees for performing the trust, that declaration shall,
without any conveyance or assignment, operate to vest in those
persons, as joint tenants, and for the purposes of the trust, that
estate, interest, or right.
(2.) Where a deed by which a retiring trustee is discharged
under this Act contains such a declaration as is in this section
mentioned by the retiring and continuing trustees, and by the
other person, if any, empowered to appoint trustees, that decla-
ration shall, without any conveyance or assignment, operate to
vest in the continuing trustees alone, as joint tenants, and for
the purposes of the trust, the estate, interest, or right to which
the declaration relates.
(3.) This section does not extend to any legal estate or
interest in copyhold or customary land, or to land conveyed by
way of mortgage for securing money subject to the trust, or to
any such share, stock, annuity, or property as is only transfer-
able in books kept by a company or other body, or in manner
directed by or under Act of Parliament.
(4.) For purposes of registration of the deed in any registry,
the person or persons making the declaration shall be deemed
the conveying party or parties, and the conveyance shall be
deemed to be made by him or them under a power conferred by
this Act.
R
242
Appendix B.
Sect. 12.
Sect. 13.
Power of
truatee for
Bale to sell
by auction,
&c.
Sect. 14.
Power to eell
subject to
depreciatory
conditions.
Sect. 15.
Power to sell.
Sect. 16.
Married
woman as
bare trustee
may convey.
Sect. 17.
Power to
(5.) This section applies only to deeds executed after the
thirty-first of December one thousand eight hundred and
eighty-one.
Purchase and Sale.
Section 13. — (1.) Where a trust for sale or a power of sale
of property is vested in a trustee, he may sell or concur with
any other person in selling all or any part of the property, either
subject to prior charges or not, and either together or in lots,
by public auction or by private contract, subject to any such
conditions respecting title or evidence of title or other matter
as the trustee thinks fit, with power to vary any contract for
sale, and to buy in at any auction, or to rescind any contract
for sale and to re-sell, without being answerable for any loss.
(2.) This section applies only if and as far as a contrary
intention is not expressed in the instrument creating the trust
or power, and shall have effect subject to the terms of that
instrument and to the provisions therein contained.
(3.) This section applies only to a trust or power created
by an instrument coming into operation after the thirty-first of
December one thousand eight hundred and eighty-one.
Section ii. — (1.) No sale made by a trustee shall be
- impeached by any beneficiary upon the ground that any of the
conditions subject to which the sale was made may have been
unnecessarily depreciatory, unless it also appears that the con-
sideration for the sale was thereby rendered inadequate.
(2.) No sale made by a trustee shall, after the execution of
the conveyance, be impeached as against the purchaser upon the
ground that any of the conditions subject to which the sale was
made may have been unnecessarily depreciatory, unless it
appears that the purchaser was acting in collusion with the
trustee at the time when the contract for sale was made.
(3.) No purchaser, upon any sale made by a trustee, shall
be at liberty to make any objection against the title upon the
ground aforesaid.
(4.) This section applies only to sales made after the
twenty-fourth day of December one thousand eight hundred
and eighty-eight.
Section 15. — A trustee who is either a vendor or a purchaser
may sell or buy without excluding the application of section
two of the Vendor and Purchaser Act, 1874.
Section 16. — When any freehold or copyhold hereditament
is vested in a married woman as a bare trustee she may convey
or surrender it as if she were afeme sole.
Various Powers and Liabilities.
Section 17. — (1.) A trustee may appoint a solicitor to be
his agent to receive and give a discharge for any money or
Trustee Act, 1893. 243
valuable consideration or property receivable by the trustee Sect. 17.
under the trust, by permitting the solicitor to have the custody
of, and to produce, a deed containing any such receipt as is authorise
referred to in section fifty-six of the Conveyancing and Law of receipt of
Property Act, 1881 ; and a trustee shall not be chargeable with ^°^^y ^7
breach of trust by reason only of his having made or concurred goudtor"^
in making any such appointment; and the producing of any
such deed by the solicitor shall have the same validity and effect
under the said section as if the person appointing the solicitor
had not been a trustee.
(2.) A trustee may appoint a banker or solicitor to be his
agent to receive and give a discharge for any money payable to
the trustee under or by virtue of a policy of assurance, by per-
mitting the banker or solicitor to have the custody of and to
produce the policy of assurance with a receipt signed by the
trustee, and a trustee shall not be chargeable with a breach of
trust by reason only of his having made or concurred in making
any such appointment.
(3.) Nothing in this section shall exempt a trustee from any
liability which he would have incurred if this Act had not been
passed, in case he permits any such money, valuable considera-
tion, or property to remain in the hands or under the control of
the banker or solicitor for a period longer than is reasonably
necessary to enable the banker or solicitor (as the case may be)
to pay or transfer the same to the trustee.
(4.) This section applies only where the money or valuable
consideration or property is received after the twenty-fourth
day of December one thousand eight hundred and eighty-eight.
(5.) Nothing in this section shall authorise a trustee to do
anything which he is in express terms forbidden to do, or to
omit anything which he is in express terms directed to do, by
the instrument creating the trust.
Section 18. — (1.) A trustee may insure against loss or Sect. 18.
damage by fire any building or other insurable property to any
amount (including the amount of any insurance already on Power to
foot) not exceeding three equal fourth parts of the full value insure
of such building or property, and pay the premiums for such ^'^^''■ins-
insurance out of the income thereof or out of the income of any
other property subject to the same trusts, without obtaining the
consent of any person who may be entitled wholly or partly to
such income.
(2.) This section does not apply to any building or property
which a trustee is bound forthwith to convey absolutely to any
beneficiary upon being requested to do so.
(3.) This section applies to trusts created either before or
after the commencement of this Act, but nothing in this sectiou
shall authorise any trustee to do anything which he is in
express terms forbidden to do, or to omit to do anything which
he is in express terms directed to do, by the instrument creating
the trust.
244
Appendix B.
Sect. 19.
Power of
trustees of
renewable
leaseholds
to renew
and raise
money for
the purpose.
Sect. 20.
Power of
trustee to
give receipts.
Sect. 21.
Power for
executors
and trustees
to compound,
Section 19. — (1.) A trustee of any leaseholds for lives or
- years wHcli are renewable from time to time, either ander any
covenant or contract, or by custom or usual practice, may, if he
thinks fit, and shall, if thereto required by any person having
any beneficial interest, present or future, or contingent, in the
leaseholds, use his best endeavours to obtain from time to time
a renewed lease of the same hereditaments on the accustomed
and reasonable terms, and for that purpose may from time to
time make or concur in making a surrender of the lease for the
time being subsisting, and do all such other acts as are requisite :
Provided that, where by the terms of the settlement or wiU the
person in possession for his life or other limited interest is
entitled to enjoy the same without any obligation to renew or
to contribute to the expense of renewal, this section shall not
apply unless the consent in writing of that person is obtained
to the renewal on the part of the trustee.
(2.) If money is required to pay for the renewal, the trustee
efEecting the renewal may pay the same out of any money then
in his hands in trust for the persons beneficially interested in
the lands to be comprised in the renewed lease, and if he has
not in his hands sufficient money for the purpose, he may raise
the money required by mortgage of the hereditaments to be
comprised in the renewed lease, or of any other hereditaments
for the time being subject to the uses or trusts to which those
hereditaments are subject, and no person advancing money upon
a mortgage purporting to be under this power shall be bound
to see that the money is wanted, or that no more is raised than
is wanted for the purpose.
(3.) This section applies to trusts created either before or
after the commencement of this Act, but nothing in this section
shall authorise any trustee to do anything which he is in express
terms forbidden to do, or to omit to do anything which he is in
express terms directed to do, by the instrument creating the
trust.
Section 20. — (1.) The receipt in writing of any trustee for
- any money, securities, or other personal property or effects
payable, transferable, or deliverable to him under any trust or
power shall be a sufficient discharge for the same, and shall
effectually exonerate the person paying, transferring, or deliver-
ing the same from seeing to the application or being answerable
for any loss or misapplication thereof.
(2.) This section applies to trusts created either before or
after the commencement of this Act.
Section 21. — (1.) An executor or administrator may pay or
allow any debt or claim on any evidence that he thinks sufficient.
(2.) An executor or administrator, or two or more trustees,
acting together, or a sole acting trustee where by the instru-
ment, if any, creating the trust a sole trustee is authorised to
execute the trusts and powers thereof, may, if and as he or they
may think fit, accept any composition or any security, real or
TuTJSTEE Act, 1893. 245
personal, for any debt or for any property, real or personal, Sect. 21.
claimed, and may allow any time for payment for any debt, and
may compromise, compound, abandon, submit to arbitration, or
otherwise settle any debt, account, claim, or thing whatever
relating to the testator's or intestate's estate or to the trust, and
for any of those purposes may enter into, give, execute, and do
such agreements, instruments of composition or arrangement^
releases, and other things as to him or them seem expedient,
"without being responsible for any loss occasioned by any act or
thing so done by him or them in good faith.
(3.) This section applies only if and as far as a contrary
intention is not expressed in the instrument, if any, creating the
trust, and shall have effect subject to the terms of that instru-
ment, and to the provisions therein contained.
(4.) This section applies to executorships, administratorships,
and trusts constituted or created either before or after the
commencement of this Act.
Section 22. — (1.) Where a power or trust is given to or Sect. 22.
vested in two or more trustees jointly, then, unless the contrary
is expressed in the instrument, if any, creating the power or Powers of
trust, the same may be exercised or performed by the survivor two or mora
or snrvivors of them for the time being. ™^ ^^'
(2.) This section applies only to trusts constituted after or
created by instruments coming into operation after the thirty-
first day of December one thousand eight hundred and eighty-one.
Section 23. — A trustee acting or paying money in good faith Sect. 23.
under or in pursuance of any power of attorney shall not be
liable for any such act or payment by reason of the fact that at Exoneration
the time of the payment or act the person who gave the power trustees in
of attorney was dead or had done some act to avoid the power, certain powers
if this fact was not known to the trustee at the time of his so of attorney.
acting or paying.
Provided that nothing in this section shall affect the right of
any person entitled to the money against the person to whom
the payment is made, and that the person so entitled shall have
the same remedy against the person to whom the payment is
made as he would have had against the trustee.
Section 24. — A trustee shall, without prejudice to the pro- Sect. 24.
visions of the instrument, if any, creating the trust, be charge-
able only for money and securities actually received by him ?°'P^*4,
notwithstanding his signing any receipt for the sake of con- ^° tj^a^g,^
formity, and shall be answerable and accountable only for his
own acts, receipts, neglects, or defaults, and not for those of any
other trustee, nor for any banker, broker, or other person with
whom any trust moneys, or securities may be deposited, nor for
the insufficiency or deficiency of any securities, nor for any
other loss, unless the same happens through his own wilful
default ; and may reimburse himself, or pay or discharge out
of the trust premises, all expenses incurred in or about the
execution of his trusts or powers.
246
Appendix B.
Sect. 25.
Power of the
Court to
appoint new
trustees.
Sect. 26.
Vesting orders
-AS to land.
PART III.
Powers op the Court.
Appointment of New Trustees and Vesting Orders.
Section 25. — (1.) The High. Court may, whenever it is
expedient to appoint a new trustee or new trustees, and it is
found inexpedient, diflScnlt, or impracticalile so to do without
the assistance of the Court, make an order for the appointment
of a new trustee or new trustees either in substitution for or in
addition to any existing trustee or trustees, or although, there
is no existing trustee. In particular and without prejudice to
the generality of the foregoing prorision, the Court may make
an order for the appointment of a new trustee in substitution
for a trustee who is convicted of felony, or is a bankrupt.
(2.) An order under this section, and any consequential
vesting order or conveyance, shall not operate further or other-
wise as a discharge to any former or continuing trustee than an
appointment of new trustees under any power for that purpose
contained in any instrument would have operated.
(3.) Nothing in this section shall give power to appoint an
executor or administrator.
Section 26. — In any of the following cases, namely : —
(i.) Where the High Court appoints or has appointed a
new trustee ; and
(ii.) Where a trustee entitled to or possessed of any land,
or entitled to a contingent right therein, either solely
or jointly with any other person, —
{a) is an infant, or
(6^ is out of the jurisdiction of the High Court, or
(c) cannot be found ; and
(iii.) Where it is uncertain who was the survivor of two or
more trustees jointly entitled to or possessed of any
land ; and
(iv.) Where, as to the last trustee known to have been
entitled to or possessed of any land, it is uncertain
whether he is living or dead ; and
(v.) Where there is no heir or personal representative to a
trustee who was entitled to or possessed of land and
has died intestate as to that land, or where it is
uncertain who is the heir or personal representative
or devisee of a trustee who was entitled to or
possessed of land and is dead ; and
(vi. ) Where a trustee jointly or solely entitled to or possessed
of any land, or entitled to a contingent right therein,
has been required, by or on behalf of a person entitled
to require a conveyance of the land or a release of
the right, to convey the land or to release the right,
and has wilfully refused or neglected to convey the
Trustee Act, 1893. 247
land or release the right for twenty-eight days after Sect. 26.
the date of the requirement ; .
the High Court may make an order (in this Act called a vesting
order) vesting the land in any such person in any such manner
and for any such estate as the Court may direct, or releasing or
disposing of the contingent right to such person as the Court
may direct.
Provided that —
(a) Where the order is consequential on the appointment
of a new trustee the land shall be vested for such
estate as the Court may direct in the persons who on
the appointment are the trustees ; and
(b) Where the order relates to a trustee entitled jointly
■with another person, and such trustee is out of the
jurisdiction of the High Court or cannot be found,
the land or right shall be vested in such other person,
either alone or with some other person.
Section 27. — Where any land is subject to a contingent right Sect. 27.
in an unborn person or class of unborn persons who, on coming ~~
into existence would, in respect thereof, become entitled to or Ordfers as to
possessed of the land on any trust, the High Court may make contingent
an order releasing the land from the contingent right, or may unborV
make an order vesting in any person the estate to or of which persons.
the unborn person or class of unborn persons would, on coming
into existence, be entitled or possessed in the land.
Section 28. — Where any person entitled to or possessed of Sect, 28.
land, or entitled to a contingent right in land, by way of security y. .. 771
for money, is an infant, the High Court may make an order in^piace of
vesting or releasing or disposing of the land or right in like conveyance
manner as in the case of an infant trustee. by infant
mortgagee.
Section 29. — Where a mortgagee of land has died without Sect. 29.
having entered into the possession or into the receipt of the
rents and profits thereof, and the money due in respect of the Vesting order
mortgage has been paid to a person entitled to receive the same, in place of
or that last-mentioned person consents to any order for the conveyance
reconveyance of the land, then the High Court may make an jg„jggg'of
order vesting the land in such person or persons in such manner jjej,., &o., or
and for such estate as the Court may direct in any of the personal re-
foUowing cases, namely : — presentative
(a) Where an heir or personal representative or devisee of °^ mortgagee
the mortgagee is out of the jurisdiction of the High
Court or cannot be found ; and
(b) Where an heir or personal representative or devisee of
the mortgagee on demand made by or on behalf of a
person entitled to require a conveyance of the land
has stated in writing that he will not convey the
same or does not convey the same for the space of
twenty-eight days next after a proper deed for con-
veying the land has been tendered to him by or on
behalf of the person so entitled ; and
248
Appendix B.
foi sale or
mortgage of
laud.
Sect. 29. (c) Wiere it is tmcertain whioli of several devisees of the
^ mortgagee was the survivor ; and
(d) Where it is Tmcertain as to the survivor of several
devisees of the mortgagee or as to the heir or personal
representative of the mortgagee whether he is living
or dead ; and
(e) Where there is no heir or personal representative to a
mortgagee who has died intestate as to the land, or
where the mortgagee has died and it is uncertain who
is his heir or personal representative or devisee.
Sect. 30. Section 30. — Where any Court gives a judgment or makes
an order directing the sale or mortgage of any land, every person
Vesting order who is entitled to or possessed of the land, or entitled to a
consequential contingent right therein as heir, or under the will of a deceased
on judgment person for payment of whose debts the judgment was given or
order made, and is a party to the action or proceeding in which
the judgment or order is given or made or is otherwise bound
by the judgment or order, shall be deemed to be so entitled or
possessed, as the case may be, as a trustee within the meaning
of this Act; and the High Court may, if it thinks expedient,
make an order vesting the land or any part thereof for such
estate as that Court thinks fit in the purchaser or mortgagee or
in any other person.
Sect. 31. Section 31. — ^Where a judgment is given for the specific
performance of a contract concerning any land, or for the
Vesting order partition, or sale in lieu of partition, or exchange, of any land,
consequential or generally where any judgment is given for the conveyance
on judgment ^^ ^^^ j^^j^^^ either in cases arising out of the doctrine of election
or otherwise, the High Court may declare that any of the parties
to the action are trustees of the land or any part thereof within
the meaning of this Act, or may declare that the interests of
unborn persons who might claim under any party to the action,
or under the will or voluntary settlement of any person deceased
who was during his lifetime a party to the contract or trans-
actions concerning which the judgment is given, are the interests
of persons who, on coming into existence, would be trustees
within the meaning of this Act, and thereupon the High Court
may make a vesting order relating to the rights of those persons,
bom and unborn, as if they had been trustees.
Sect. 32. Section 32. — A vesting order under any of the foregoing
provisions shall in the case of a vesting order consequential on
Effect of the appointment of a new trustee, have the same effect as if the
vesting order, persons who before the appointment were the trustees (if any)
had duly executed all proper conveyances of the land for such
estate as the High Court directs, or if there is no such person,
or no such person of full capacity, then as if such person had
existed and been of full capacity and had duly executed all
proper conveyances of the land for such estate as the Court
directs, and shall in every other case have the same effect as if
for specific
performance,
&c.
Trustee Act, 1893. 249
the trustee or other person or description or class of persons to Sect. 32.
whose rights or supposed rights the said provisions respectively
relate had been an ascertained and existing person of full
capacity, and had executed a conveyance or release to the effect
intended by the order.
Section 33. — In all cases where a vesting order can be made Sect. 33.
under any of the foregoing provisions, the High Court may, if
it is more convenient, appoint a person to convey the land or Power to
release the contingent right, and a conveyance or release by appoint
that person in conformity with the order shall have the same P^™°" '"
effect as an order under the appropriate provision. convey.
Section 35. — (1.) Where an order vesting copyhold land in Sect. 34.
any person is made under this Act with the consent of the lord
or lady of the manor, the land shall vest accordingly without Effect of
surrender or admittance. vesting order
(2.) "Where an order is made under this Act appointing any ^J9 °°^^'
person to convey any copyhold land, that person shall execute
and do all assurances and things for completing the assurance
of the land; and the lord and lady of the manor and every
other person shall, subject to the customs of the manor and the
usual payments, be bound to make admittance to the land and
to do all other acts for completing the assurance thereof, as if
the persons in whose place an appointment is made were free
from disability and had executed and done those assurances and
things.
Section 35. — (1.) In any of the following cases, namely : — Sect. 35.
(i.) Where the High Court appoints or has appointed a
new trustee ; and Vesting
(ii.) Where a trustee entitled alone or jointly with another orders as to
person to stock or to a chose in action — ^'°°'^ ^]"^
/■ \ ■ • J! i cnoses in
(ffi) IS an infant, or ^^jj^^
(6^ is out of the jurisdiction of the High Court, or
(c) cannot be found ; or
(d) neglects or refuses to transfer stock or receive
the dividends or income thereof, or to sue
for or recover a chose in action, according
to the direction of the person absolutely
entitled thereto for twenty-eight days next
after a request in writing has been made
to him by the person so entitled ; or
(e) neglects or refuses to transfer stock or receive
the dividends or income thereof, or to sue
for or recover a chose in action for twenty-
eight days next after an order of the High
Court for that purpose has been served on
him; or
(iii.) Where it is uncertain whether a trustee entitled alone
or jointly with another person to stock or to a chose
in action is alive or dead,
250
Appendix B.
Sect. 35. the High Court may make an order vesting the right to transfer
or call for a transfer of stock, or to receive the dividends or
income thereof, or to sue for or recover a chose in action, in any
such person as the Court may appoint :
Provided that —
(a) Where the order is consequential on the appointment
by the Court of a new trustee, the right shall be
vested in the persons who, on the appointment, are
the trustees ; and
(6) Where the person whose right is dealt with by the
order was entitled jointly with another person, the
right shall be vested in that last-mentioned person
either alone or jointly with any other person wbom
the Court may appoint.
(2.) In all cases where a vesting order can be made under
this section, the Court may, if it is more convenient, appoint
some proper person to make or join in making the transfer.
(3.) The person in whom the right to transfer or call for
the transfer of any stock is vested by an order of the Court
nnder this Act, may transfer the stock to bimself or any other
person, according to the order, and the Banks of England and
Ireland and all other companies shall obey every order under
this section according to its tenor.
(4.) After notice in writing of an order under this section it
shall not be lawful for the Bank of England or of Ireland or
any other company to transfer any stock to which the order
relates or to pay any dividends thereon except in accordance
with the order.
(5.) The High Court may make declarations and give
directions concerning the manner in which, the right to any
stock or chose in action vested under the provisions of this Act
is to be exercised.
(6.) The provisions of this Act as to vesting orders shall
apply to shares in ships registered under the Acts relating to
merchant shipping as if they were stock.
Section 36. — (1.) An order under this Act for the appoint-
ment of a new trustee or concerning any land, stock, or chose
in action subject to a trust, may be made on the application of
any person beneficially interested in the land, stock, or chose in
action, whether under disability or not, or on the application of
any person duly appointed trastee thereof.
(2.) An order under this Act concerning any land, stock, or
chose in action subject to a mortgage may be made on the
application of any person beneficially interested in the equity
of redemption, whether under disability or not, or of any person
interested in the money secured by the mortgage.
Sect. 37. Section 37. — Every trustee appointed by a Court of com-
petent jurisdiction shall, as well before as after the trust
property becomes by law, or by assurance, or otherwise, vested
in him, have the same powers, authorities, and discretions, and
Sect. 36.
Persons
entitled lo
apply for
orders.
Powers of
new trustee
appointed by
Court,
Trustee Act, 1893. 251
may in all respects act as if he had been originally appointed a Ssct. 37.
trustee by the instrument, if any, creating the trust. ■
Section 38. — The High Court may order the costs and Sect. 38.
expenses of and incident to any application for an order appoint-
ing a new trustee, or for a vesting order, or of and incident to Power to
any such order, or any conveyance or transfer in pursuance charge costa
thereof, to be paid or raised out of the land or personal estate °" *"^8'
in respect Vfhereof the same is made, or out of the income
thereof, or to be borne and paid in such manner and by such
persons as to the Court may seem just.
Section 39. — The powers conferred by this Act as to vesting Sect. 39.
orders may be exercised for vesting any land, stock, or chose
in action in any trustee of a charity or society over which the Trustees t)f
High Court would have jurisdiction upon action duly instituted, charities.
whether the appointment of the trustee was made by instrument
under a power or by the High Court under its general or
statutory jurisdiction.
Section 50. — Where a vesting order is made as to any land Sect. 40.
under this Act or under the Lunacy Act, 1890, or under any
Act relating to lunacy in Ireland, founded on an allegation of Orders made
the personal incapacity of a trustee or mortgagee, or on an upon certain
allegation that a trustee or the heir or personal representative allegations
or devisee of a mortgagee is out of the jurisdiction of the High g]„g^ye °"
Court or cannot be found, or that it is uncertain which of evidence.
several trustees or which of several devisees of a mortgagee was
the survivor, or whether the last trustee or the heir or personal
representative or last surviving devisee of a mortgagee is living
or dead, or on an allegation that any trustee or mortgagee has
died intestate without an heir or has died and it is not known
who is his heir or personal representative or devisee, the fact
that the order has been so made shall be conclusive evidence of
the matter so alleged in any Court upon any question as to the
validity of the order; but this section shall not prevent the
High Court from directing a reconveyance or the payment of
costs occasioned by any such order if improperly obtained.
Section 41. — The powers of the High Court in England to Sect. 41.
make vesting orders under this Act shall extend to all land and
personal estate in Her Majesty's dominions, except Scotland. Application of
veeting order
to laud out of
England.
Payment into Court hy Trustees.
Section 42. — (1.) Trustees, or the majority of trustees, Sect. 42.
having in their hands or under their control money or securities
belonging to a trust, may pay the same into the High Court ; Payment into
and the same shall, subject to rules of Court, be dealt with Comt by
according to the orders of the High Court. trustees.
(2.) The receipt or certificate of the proper officer shall be
252
Appendix B,
Sect. 42. a sufiGcient discharge to trustees for the money or eeourities so
paid into Court.
(3.) Where any moneys or securities are vested in any
persons as trustees, and the majority are desirous of paying the
same into Court, hut the concurrence of the other or others
cannot be obtained, the High Court may order the payment into
Court to be made by the majority without the concurrence of
the other or others ; and where any such moneys or securities
are deposited with any banker, broker, or other depositary, the
Court may order payment or delivery of the moneys or securities
to the majority of the trustees for the purpose of payment into
Court, and every transfer, payment, and delivery made in pur-
suance of any such order shall be valid and take effect as if the
same had been made on the authority or by the act of all the
persons entitled to the moneys and securities so transferred,
paid, or delivered.
Miscellaneous.
Sect. 43. Section 43. — ^Where in an action the High Court is satisfied
that diligent search has been made for any person who, m the
Power to give character of trustee, is made a defendant in any action, to serve
judgment in jj^^j ^]^]^ g_ process of the Court, and that he cannot be found,
trustee ^^ Court may hear and determine the action and give judg-
ment therein against that person in his character of a trustee,
as if he had been duly served, or had entered an appearance
in the action, and had also appeared by his counsel and solicitor
at the hearing, but without prejudice to any interest he may
have in the matters in question in the action in any other
character.
Sect. 44.
Power to
sanction sale
of land or
minerals
separately.
Sect. 45.
Power to
make bene-
ficiary
Section 44.— (1.) Where a trustee is for the time being
authorised to dispose of land by way of sale, exchange, partition,
or enfranchisement, the High Court may sanction his so dispos-
ing of the land with an exception or reservation of any minerals,
and with or without rights and powers of or incidental to the
working, getting, or carrying away of the minerals, or so dis-
posing of the minerals, with or without the said rights or powers,
separately from the residue of the land.
(2.) Any such trustee, with the said sanction previously
obtained, may, unless forbidden by the instrument creating the
trust or direction, from time to time, without any further
application to the Court, so dispose of any such land or
minerals.
(3.) Nothing in this section shall derogate from any power
which a trustee may have under the Settled Land Acts, 1882 to
1890, or otherwise.
Section 45.^ — (1.) Where a trustee commits a breach of trust
at the instigation or request or with the consent in writing of
a beneficiary, the High Court may, if it thinks fit, and notwith-
standing that the beneficiary may be a married woman entitled
Teustee Act, 1893. 253
for her separate use and restrained from anticipation, make Sect. 45.
such order as to the Court seems just, for impounding all or
any part of the interest of the heneficiary in the trust estate indemDify for
by way of indemnitj* to the trustee or person claiming breach of
through him. *'^"^*-
(2.) This section shall apply to breaches of trust committed
as well before as after the passing of this Act, but shall not
apply so as to prejudice any question in an action or other
proceeding which was pending on the twenty-fourth day of
December one thousand eight hundred and eighty-eight, and is
pending at the commencement of this Act.
Section 46. — The provisions of this Act with respect to the Sect. 46.
High Court shall, in their application to cases within the
jurisdiction of a Palatine Court or County Court, include that Jurisdiction
Court, and the procedure under this Act in Palatine Courts and °^ Palatine
County Courts shall be in accordance with the Acts and rules Oourts"™
regulating the procedure of those Courts.
PAET IV.
Miscellaneous and Supplemental.
Section 47-^(1.) All the powers and provisions contained Sect. 47.
in this Act with reference to the appointment of new trustees,
and the discharge and retirement of trustees, are to apply to Application
and include trustees for the purposes of the Settled Land Acts, to trustees
1882 to 1890, whether appointed by the Court or by tlie L^^d Aota'^*^
settlement, or under provisions contained in the settlement. pf provisions
(2.) This section applies and is to have effect with respect as to appoint-
to an appointment or a discharge and retirement of trustees ment of
taking place before as well as after the commencement of t™stees.
this Act.
(3.) This section is not to render invalid or prejudice any
appointment or any discharge and retirement of trustees effected
before the passing of this Act, otherwise than under the
provisions of the Conveyancing and Law of Property Act,
1881.
Section 48. — Property vested in any person on any trust or Sect. 48.
by way of mortgage shall not, in case of that person becoming
a convict within the meaning of the Forfeiture Act, 1870, vest Trust estates
in any such administrator as may be appointed under that Act, not affected
but shall remain in the trustee or mortgagee, or survive to his ^^ trustee
co-trustee or descend to his representative as if he had not convict"^ *
become a convict ; provided that this enactment shall not affect
the title to the property so far as relates to any beneficial
interest therein of any such trustee or mortgagee.
254
Appendix B.
Sect. 49. Section 49. — This Act, and every order purporting to be
made under this Act, shall be a complete indemnity to the
Indemnity. Banks of England and Ireland, and to all persons for any acts
done pursuant thereto; and it shall not be necessary for the
Bank or for any person to inqaire concerning the propriety of
the order, or whether the Court by which it was made had
jurisdiction to make the same.
Sect. 50. Section 50. — In this Act, unless the context otherwise
— requires —
Definitions. The expression " bankrupt " includes, in Ireland, insolvent :
The expression " contingent right," as applied to land,
includes a contingent or executory interest, a possibility
coupled with an interest, whether the object of the gift or
limitation of the interest, or possibility is or is not
ascertained, also a right of entry, whether immediate or
future, and whether vested or contingent :
The expressions " convey " and " conveyance " applied to any
person include the execution by that person of every
necessary or suitable assurance for conveying, assigning
appointing, surrendering, or otherwise transferring or
disposing of land whereof he is seised or possessed, or
wherein he is entitled to a contingent right, either for his
whole estate or for any less estate, together with the per-
formance of all formalities required by law to the validity
of the conveyance, including the acts to be performed by
married women and tenants in tail in accordance with
the provisions of the Acts for abolition of fines and
recoveries in England and Ireland respectively, and also
including surrenders and other acts which a tenant of
customary or copyhold lands can himself perform prepara-
tory to or in aid of a complete assurance of the customary
or copyhold land :
The expression " devisee " includes the heir of a devisee and
the devisee of an heir, and any person who may claim
right by devolution of title of a similar description :
The expression "instrument " includes Act of Parliament :
The expression " land " includes manors and lordships, and
reputed manors and lordships, and incorporeal as well as
corporeal hereditaments, and any interest therein, and
also an undivided share of land :
The expressions " mortgage " and " mortgagee " include and
relate to every estate and interest regarded in equity as
merely a security for money, and every person deriving
title under the original mortgagee :
The expressions " pay " and " payment " as applied in
relation to stocks and securities, and in connection with
the expression " into Court," include the deposit or transfer
of the same in or into Court :
The expression "possessed" applies to receipt of income of,
and to any vested estate less than a life estate, legal or
equitable, in possession or in expectancy, in, any land :
Trustee Act, 1893. 255
The expression "property" includes real and personal Seot. 50.
property, and any estate or interest in any property, real
or personal, and any debt, and any thing in action, and
any other right or interest, whether in possession or not :
The expression " rights " includes estates and interests :
The expression "securities" includes stocks, funds, and
shares ; and so far as relates to payments into Court has
» the same meaning as in the Court of Chancery ('Funds')
Act, 1872: "' ^ ^
The expression " stock " includes fully paid up shares ; and,
so far as relates to vesting orders made by the Court
under this Act, includes any fund, annuity, or security
transferable in books kept by any company or society, or
by instrument of transfer either alone or accompanied by
other formalities, and any share or interest therein :
The expression " transfer," in relation to stock, includes the
performance and execution of every deed, power of
attorney, act, and thing on the part of the transferor to
effect and complete the title in the transferee :
The expression " trust " does not include the duties incident
to an estate conveyed by way of mortgage ; but with this
exception the expressions " trust " and " trustee " include
implied and constructive trusts, and cases where the
trustee has a beneficial interest in the trust property, and
the duties incident to the oflB.ce of personal representative
of a deceased person.
Section 51. — The Acts mentioned in the Schedule to this Sect. 51.
Act are hereby repealed except as to Scotland to the extent r '
mentioned in the third column of that schedule. Bepeal.
Section 52.— This Act does not extend to Scotland. Sect. 52.
Extent of Act.
Section 53. — This Act may be cited as the Trustee Act, Sect. 53.
^^^^' Short title.
Section 54. — This Act shall come into operation on the Sect. 54.
first day of January one thousand eight hundred and ninety- 7
, •' •' ° •' Commence-
lo^- ment.
256
Appendix B,
SCHEDULE.
Session and Chapter.
Title or Sliort Title.
Extent of Repeal.
36 Geo. 3. c. 52
9 & 10 Vict. c. 101
10 & 11 Vict. c. 82
10 & 11 Vict. e. 96
11 & 12 Vict. e. 68
12 & 13 Vict. c. 74
13&14 Vicic. 60
15 & 16 Vict. c. 55
17 & 18 Viet. c. 82
18 & 19 Vict. c. 91
20 & 21 Vict. c. 60
22 & 23 Vict. c. 85
23 & 24 Vict. c. 38
The Legacy Duty Act,
1796
The Public Money Drain-
age Act, 1846
The Landed Property Im-
provement (Ireland) Act,
1847
An Act for better securing
trust funds, and for the
relief of trustees
An Act for extending to
Ireland an Act passed
in the last session of
Parliament, entitled "An
Act for better securing
trust funds, and for the
relief of trustees "
An Act for the further
relief of trustees
The Trustee Act, 1850
The Trustee Act, 1852
The Court of Chancery of
Lancaster Act, 1854
The Merchant Shipping
Act Amendment Act,
1855
The Irish Bankrupt and
Insolvent Act, 1857
The Law of Property
Amendment Act, 1859
The Law of Property
Amendment Act, 1860
Section thirty-two.
Section thirty-seven.
Section fifty-three.
The whole Act.
The whole Act.
The whole Act.
Sections seven to nineteen,
twenty-two to twenty-
five, twenty-nine, thirty-
two to thirty-six, forty-
six, forty-seven, forty-
nine, fifty-four and fifty-
five ; also the residue
of the Act except so
far as relates to the
Court exercising juris-
diction in lunacy in
Ireland,
Sections one to five, eight,
and nine; also the re-
sidue of the Act except
so far as relates to ^e
Court exercising juris-
diction in lunacy in
Ireland.
Section eleven.
Section ten, except so far
as relates to the Court
exercising jurisdiction
in lunacy in Ireland.
Section three hundred and
twenty-one.
Sections twenty-six, thirty
and thirty-one.
Section nine.
Trustee Act, 1893.
257
Session and Chapter.
25 & 26 Vict. c. 108
26 & 27 Vict. c. 73
27 & 28 Vict. c. 114
28&29 Victc. 78
31&32 Viclc. 40
33 & 84 Victc. 71
34 & 35 Vict. c. 27
37 & 38 Vict. c. 78
88 & 39 Vict. c. 88
40 & 41 Vict. c. 59
43 & 44 Vict. c. 8
44 & 45 Vict. c. 41
45&46Vict. c. 39
46 & 47 Vict. c. 52
51 & 52 Vict. c. 59
52 & 53 Vict. c. 32
52 & 58 Vict. c. 47
53&54 Victc. 5
53 & 54 Vict. c. 69
55 & 56 Victc. 13
Title or Short Title.
Extent of Repeal.
An Act to confirm certain
sales, exchanges, parti-
tions, and enfranchise-
ments hy trustees and
others
An Act to give further
facilities to the holders
of Indian stock
The Improvement of Land
Act, 1864
The Mortgage Dehenture
Act, 1865
The Partition Act, 1868
The National Debt Act,
1870
The Debenture Stock Act,
1871
The Vendor and Purchaser
Act, 1874
The Local Loans Act,
1875
The Colonial Stock Act,
1877
The Isle of Man Loans
Act, 1880
The Conveyancing and
Law of Property Act,
1881
The Conveyancing Act,
1882
The Bankruptcy Act, 1883
The Trustee Act, 1888
The Trust Investment Act,
1889
The Palatine Court of
Durham Act, 1889
The Lunacy Act, 1890
The Settled Land Act,
1890
The Conveyancing and
Law of Property Act,
1892
The whole Act.
Section four.
Section sixty so far as it
relates to trustees ; and
section sixty-one.
Section forty.
Section seven.
Section twenty-nine.
The whole Act.
Sections three and six.
Sections twenty-one and
twenty-seven.
Section twelve.
Section seven, so far as it
relates to trustees.
Sections thirty-one to
thirty-eight.
Section five.
Section one hundred and
forty-seven.
The whole Act, except
sections one and eight.
The whole Act, except
sections one and seven.
Section eight.
Section one hundred and
forty.
Section seventeen.
Section six.
• »,
INDEX.
ABANDON debts and claims, power of executors and trustees to, 83,_85
ABROAD, donee of power of appointing new trustees, 98
person, appointment of, as new trustee, 100, 158
property, investment on mortgage of, 21
vesting order as to, 143, 144, 175
vesting declaration as to, 65
trustee, appointment of new trustee, 48, 52, 98
vesting order as to property of, 103, 107, 129, 134
ABSCONDING- trustee, appointment of new trustee in place of, 53, 98
vesting order, 108
ABSOLUTELY entitled, beneficiary, bound to indemnify trustee, 95
insurance of property of, 78, 79
may require conveyance, 110
transfer of stock, 134
persons, tenants for life are not, 184
trustees may be, 134
ACCOUNTS of judicial trustee, 181, 182, 184, 212
when claim for against trustee barred, 6, 9
relief under Act of 1896 given in action for, 187
ACTION " against a trustee," what is, 6
application under Trustee Act, 1893, may be made in, 194
appointment of new trustee in, 96, 99
dispensing with service on trustee in, 148
for common account, when barred, 9
relief under Act of 1896 given in, 187
meaning of the word, 149
ADDITIONAL powers, statutory powers of investment are, 18, 30, 34
ADDITIONAL trustee, appointment of, costs of, 140
where no vacancy, 58, 99, 100, 101
ADMINISTRATION action, appointment of new trustees in, 96, 99, 194
avoided by payment into Court, 147
how far affects power to appoint new trus-
tee, 55
trustee's powers, 33, 84
vesting order in, 194
ADMINISTRATION of trust by judicial trustee, 208, 212
260 Ijstdkx.
ADMINISTEATOE may compound, etc., 83, 85
plead Statutes of Limitations, 4, 6, 10, 11
of convict's estate, 159-161
question whether a trustee for purposes of section
10.. 168, 170
question whether a trustee for purposes of section
13. .68
question whether a trustee for purposes of sections
17-19..77, 79, 81
within definition of trustee in Trustee Act, 1888 .. 4
within definition of trustee in Trustee Act, 1893 ..
168
within meaning of trustee in Judicial Trustees Act,
1896.. 18 1,185
ADMITTANCE to copyholds, fines payahle on, 127, 129
when dispensed with hy vesting order, 126,
128, 129
AFFIDAVIT evidence on applications under Trustee Act, 1893.. 196,
197, 204
evidence on application imder Judicial Trustees Act, 1896
..207,211
of fitness of proposed new trustee, 204
payment into Court on, under Trustee Relief Act, 1847 . . 145
Trustee Act, 1893.. 198, 201
payment into Court without, 200
AGENT of trustee, care to he exercised in selecting, 94
fraud of, when bars rights under Trustee Act, 1888 ..7
indemnity in respect of acts of, 91-95
receipt of money hy, 75-77
ALLEGrATIONS, orders founded upon certain, to he conclusive evidence,
142, 143
ANNUITIES charged on revenues of India, investment on, 13, 14
undertakings of railways, 23
what are " stock " within definition in Trustee Act,1893 ..
23, 163
APPLICATION of remuneration of official of the Court, 213
APPLICATIONS to the Court, titles of, 105, 201, 202
under Judicial Trustees Act, 1896 . . 181,
182, 205-207
under Judicial Trustees Act, 1896, by
judicial trustee, 217
under Judicial Trustees Act, 1896, to
remove trustee, 214
under Trustee Act, 1893, list of, 193
when hy petition, 194-196
summons, 202-204
who may make under Trustee Act, 1893 . .
137, 138
APPOINTMENT of agent to receive trust money, 75, 77
new trustee. See New Tk0STEB.
person to assure copyholds, 128, 129
convey land, 110, 127
grant lease, 110, 124, 127
transfer stocks, 130, 136
Ikdex. 261
APPOETIONMENT, none on purchase of investment cum div, 33
of costs- of appointing new trustees of distinct
funds, 140
expenses of renewing leases, 81
sale moneys, 68
AEBITEATION, trustees may submit matters to, 83
ASSIGrNBB, share of beneficiary may be impounded as against, 152, 155
ATTOKNEY, appointment of, to give receipt, 75-77
deed of, trustee executing, 77
power of, how avoided or revoked, 90
protection of trustee acting on faith of, 89-91
AUDIT of atcounts of judicial trustee, 181, 182, 212
AUTHOKISED, investments must be proper as well as, 20, 46-48
ceasing to be, 176-178
BANK, account to be kept at, by judicial trustee, 210, 211
deposit of securities at, 41, 210
BANK of England, acting on vesting order, indemnity to, 130, 136, 161
effect of notice of vesting order given to, 130, 137
investment in stock of, 12, 15, 21
issuing bearer certificates to trustees, 40
BANK of Ireland, acting on vesting order, indemnity to, 130, 136, 161
effect of notice of vesting order giveu to, 130, 137
investment in deposit receipt of, 30
stock of, 12, 15, 21
issuing bearer certificate to trustee, 40
BANKER, appointment of, by trustee to receive trust money, 75-77
deposit of securities with, 41, 210
indemnity to trustee in respect of acts of, 91-94
BANKRUPTCY, definition of, 161
of donor or of donee of power of attorney, 90
trustee, appointment of new trustee on, 53, 95-98
trustee does not give power to make vesting order,
106, 132
trustee in, application of Trustee Act, 1888, to, 6
BARE power, when survivors can exercise, 87
BABE trustee, married woman, power to convey land, 72-74, 170
meaning of term, 73
no power of investment given to, 18
not authorised to insure property, 79
power of, to appoint new trustee, 50
vesting declaration of property vested in, 65
when mortgagee becomes, 74, 115, 168
BEARER securities, investment in and custody of, 40, 41
securities guaranteed by Parliament generally are, 22
BENEFICIALLY interested, who are persons, 138
262 Index.
BENEFICIAEY absolutely entitled, insurance of property of, 79
may require conveyance, 110, 134
obliged to indemnify trustee, 95
wbo is a, 134
concurring in breach of trust, 151-155
may apply for appointment of new trustee, 137, 138
judicial trustee, 181, 182
vesting order, 137, 138
may be appointed judicial trustee, 207
near relative of, not usually appointed new trustee by
Court, 99
not a person " claiming through " a trustee, 6, 7
not usually appointed new trustee by Court, 99, 158
rights of, in -respect of breach of trust, 19, 47, 48
where barred by time, 5-11
rights of innocent, to impound, 153, 154
various classes of, to be considered in making invest-
ments, 32
vesting order transferring stock to, 134
vesting mortgage in, 108
BEYOND the seas, legatees, payment into Court, 145
BEEACH of trust, action based on, 5-11
beneficiary, rights of, generally, 19, 47, 48
time, when accruing, 9, 10
concurring in, 151-155
date when cause of action arises, 9, 10
fraudulent, 5, 7
impounding interest of concurring beneficiary, 153, 154
liability for, of trustee, generally, 47, 48
retiring trustee, 102
relief from, 184-187
married woman, when liable, 99
husband, when liable, 100
interest of may be impounded, 151,
153
nature of, considered, 8
relating to acts of agents, 7, 41, 75-77, 91-94, 187
co-trustees, 77, 91-93, 186
partners, 7
bearer securities, 40, 41
custody of deeds, 41, 75-77
devastavits, 10, 11, 83-85, 91-93, 178, 186,
187
insurance, 78, 79
investment, 20, 21, 32, 33, 46-48
mortgages, 19-21, 41-48, 186, 225-234
omitting to obtain direction of Court, 185-
187
option, 68
payment into Court, 144-148
postponing sale, 178
powers of attorney, 75-77, 89-91
purchase of land, 42, 44-46, 70-72
receipts, 81, 82, 91-93
refusal to act, 141
retaining investments, 31, 176-178, 187
sales, 67-72, 187
Index. 263
BREACH of trust, relating to varying investments, 33
Statutes of Limitations, when may be pleaded, 5-11
waiver of, 19, 47
BUILDINGS, insurance of, by trustees, 78, 79
mortgage of land and, 42-44, 225-228
BUSINESS, appointment of judicial trustee to carry on, 216, 217
purposes, mortgage of land used for, 42, 225-227
CANNOT be found, when person nominated to appoint new trustees, 54
when trustee. Court may give judgment in absence, 148
vesting order as to land, 103, 108
stock, 129
CASH under control of Court, investment of, 15, 16, 28-31
CESTUI que trust. See BENBriciAET.
CHARQ-E for services, in case of judicial trustee, 213
trustee has usually no right to make any, 95
CHAEGrE under Improvement of Land Act, investment on, 16, 34, 36
investment subject to, 16,
39, 40
CHARITABLE funds, ofBoial trustee of, 4
CHARITY, Judicial Trustees Act, 1896, does not extend to, 190
trustee of, appointment of, 51, 142
payment into Court by, 146, 147
vesting property in, 141
CHARITY Commissioners, consent of, to payment into Court, 147
CLAIM against trustee, when barred by time, 5-11
compromise, etc., of, by trustees, 83-85
CLAIMING through trustees, who are persons, 6, 7, 154
CLASSIFICATION in Trustee Act, 1893 .. 2j
CODE, Trustee Act, 1893, is not a, 1, 35
CO-EXECUTORS, compromise of claim of, against estate, 85
joining in giving receipt, 92
powers and liabilities of, 83-85
survivors of may exercise powers, 85-88
COLONIAL stocks, investment in, power of extended to other securi-
ties, 35, 39
restricted in case of bearer securi-
ties, 40, 41
under Colonial Stock Act, 1900 . . 39,
191, 192
Trustee Act, 1893 . . 28, 29, 39
COMMENCEMENT, date of, of Conveyancing and Law of Property Act, '
1881.. 67 *
Judicial Trustees Act, 1896 . . 190
Trustee Act, 1893.. 172
Trustee Act, 1888.. 70
264 Index.
COMPANY, dissolved, vesting order as to property of, 108
reconstruction of, 177
COMPOUND, power for executors and trustees to, 83-85
COMPEOMISB, power for executors and trustees to, 83-85
CONDITIONS as to title on purchase by trustees, 45, 70-72
sale by trustees subject to, 67-70
CONSENT of beneficiary to appointment of new trustee, 61
discharge of trustee, 62
insurance, 78, 79
investment, 33
renewal of lease, 80
Charity Commissioners to payment into Court, 147 »
Lord of Manor to vesting order, effect of, 128, 129
trustee to act, 204
CONSOLIDATION of statntory provisions, 1, 2, 12
CONSOLS, investment in, 15, 16
See QovEENMBNT Secubitibs.
CONSTRUCTION of Acts of Parliament, principles of, 1, 2
of statutory powers of investment, 30, 34
CONSTRUCTIVE notice of title, 71, 74
CONSTRUCTIVE trustee. Court will appoint under section 25 .. 97
not within sections 10-12 of Act of 1893..
50, 168
not within sections 13 and 17-19 of Act of
1893.. 168
when judgment necessary before vesting order
affecting, 118-121
within meaning of Trustee Act, 1888 . . 4, 6
within meaning of Trustee Act, 1893.. 163,
168, 170
CONTINGENT right, definition of, 161, 164
vesting orders as to, of infant mortgagee, 112
trustee, 103
trustees not to be found, 103
out of jurisdiction, 103
refusing to convey, 103
unborn persons, 111
CONTINUING trustees include retiring trustees, 50, 60
power of, to appoint new trustees, 48, 55
vesting property in, on retirement of trustee, 62,
63, 104, 105, 108
when may exercise trusts and powers, 85-88
CONTRACT for purchasaor lease, title to be shewn. See Title.
sale, by wustees, 67-72
when makes vendor a trustee, 120, 121
iM implied in undertaking trust, 8
married woman trustee cannot make, as to land, 74
specific performance of, ordered, 110, 123, 124
to grant or accept lease, 110, 124
Index. 265
CONTEARS" intention in instrument, as to appointment and retirement
of trustees, 50, 59-61
indemnity of trustees, 91
investments, 34, 35, 38, 39
powers of sale, etc., 67, 75,
76, 78, 80
survivorship of powers, 85
CONTRIBUTION between co-trustees in case of joint default, 10, 155
tenant for life and remainderman of costs of
renewals, 80
CONTRIBUTORY mortgage not a proper investment, 21, 38, 231
CONVERSION of trust property to use of trustee, 5, 7, 8
power to postpone, 33, 176
CONVEY, definition of, 162
person appointed to, 110, 127
CONVEYANCE by person appointed to convey, 127, 128
definition of, 162, 164
vesting orders have same eflect as, 125-127
when judgment given fur. Court may declare parties
trustees, 123
CONVICT, trust estates not affected by trustee becoming, 159-161
See also Felon.
COPYHOLDS, admittance to, fines on, 127, 129
when dispensed with, 126-129
appointment of persons to assure, 128, 129
devolution of trust and mortgage estates in, 107, 112, 116
married woman bare trustee may convey, 72
mortgage of, by covenant to surrender, mortgagor held
trustee, 120, 170
mortgage of, by covenant to surrender, not trustee secu-
rity, 234
no vesting declaration of legal estate in, 64, 65
purchase of enfranchised, title to be shewn, 45
sale of, vendor held trustee, 121
vesting order as to, 66, 126, 129
CORPORATION, appointment of, as judicial trustee, 183
municipal, 26
question whether eligible as new trustee, 57, 100
COSTS, mortgage for payment of, 141
of ascertaining legatees, 147
appointment ot new trustees and vesting order, 140, 141
payment into Court, 147, 148
power of the Court as to, 140
sale for payment of, not authorised by Trustee Act, 1850 . . 118
trustee entitled to, 94, 95, 140
CO-TRUSTEES, contribution between, in case of joint default, 10, 155
joining in giving receipt, 91, 92
liability for acts of generally, 91-93
permitting, to receive and retain trust funds, 77, 93
powers of two or more, to compound, 83-85
survivorship of powers of, 85-88
when time begins to run in favour of one of, 10
266 Index.
COUNTY Council, London, investment in stock of, 13, 28
Stock, investment in, 14, 26
COUNTY Court, jurisdiction under Judicial Trustees Act, 1896 . . 184, 188,
219—221
Trustee Act, 1893.. 156
COURT, investment of cash under control of, 15, 16, 28-30, 31
COVENANT for payment in mortgage deed, how far important, 233
production of title deeds, statutory provisions as to, 71
quiet enjoyment by person appointed to grant lease, 127
to assign last day of term, when creates trust, 121
insure in lease, tenant for life must perform, 79
perform trust, 8
surrender copyholds, when creates trust, 120, 170
CREATING- trust, application for appointment of judicial trustee by
persons, 181, 182
CREDITOR of testator not bound by terms of will, 92
CUSTODY of deed containing receipt entrusted to solicitor, 75-77
policy entrusted to banker or solicitor, 75-77
securities and title deeds, 41, 210
DEATH of trustee, appointment of new trustee, 48, 52, 60, 97
devolution on, 107, 112, 116
• in lifetime of testator, 50, 52, 60, 97
« survivorship of trusts and powers, 85-88
DEBENTURES, not included in term "debenture stock," 22, 37, 38
DEBENTURE stock of railways, power to invest in, under Trustee Act,
1893..13, 22, 28, 29, 35, 37
power to invest in, under earlier Acts,
17,37
power to invest in, extended to other
securities, 17, 35, 38
DEBTS, judgment for sale for payment of, 118
payment, allowance, abandonment, etc., of, 83-85
DECLINING to act, who is a trustee, 53
See also Refusing.
DEFERRED ordinary stock, 22, 23
DEVASTAVIT, in respect of acts of agents and co-executors, 91-93
compounding debts, etc., 83-85
getting in unsecured debt, 178
relief from, liability for, 186, 187
Statutes of Limitations applicable to, 10, 11
DEVISEE, definition of, in Trustee Act, 1893.. 162, 165
1850.. 164
of trustee, vesting order as to copyholds, 103, 109
mortgagee, vesting order as to copyholds, 118, 114, 116
DEVOLUTION on death of trustee of copyholds, 107
freeholds, 107
mortgage estates, 112, 116
Index. 267
DIRECTIONS as to exercise of right to any stock vested by order, 131
to judicial trustee, 181, 184, 211, 217
DIRECTOE, trustee of assets of company, 6, 185
DISABILITY of donee or donor of power of attorney, 90
donee of power to appoint new trustees, 54, 98
married woman to convey, 73, 74
mortgagee, vesting orders on, 114-117
trustee under. See New Tbdsteb ; Vesting Obdee.
vesting orders not restricted to persons under, 122, 126
DISCHAEGE of trustee, device formerly adopted by Court to effect, 100
general rights of trustees as to, 52, 62
on appointment of new trustees, 49, 59, 95,
96, 102
withoutappointmentof new trustees, 61-63, 100
trustee desiring, appointment In place of, 48, 52
DISCLAIMEE of powers, 62, 86
trusts, 52, 53, 62, 86
DISCEETION of trustee in allowing or compounding debts, 83-85
selecting investment?, 20, 32, 33
DISSOLVED company, vesting order as to property of, 108
DIVIDENDS, no apportionment of, on purchase cum div, 33
right to receive, vesting order as to, 130
EASEMENT cannot be granted under section 13 .. 68
creation of, under Settled Land Acts, 151
land may be sold under section 13 with benefit of, 68
44 with benefit of, 151
EFFECT of appointment of new trustees, discharge of old trustees, 49,
59, 95, 102
powers of new trustees, 49,
60, 138
vesting declaration, 64, 65
vesting order, as to copyholds, 126-129
discharge of trustee, 95, 101
land generally, 125-127
ELECTION by beneficiary to retain unauthorised investment, 19, 47
sale of land in cases arising out of doctrine of, 123, 124
ENFEANCHISEMBNT of copyholds, title to be shewn on sale, 45
by trustee, excepting or reserving minerals, 149
ENGLAND. See Bank of England ; Abroad ; Extent of Act.
EQUITABLE estates, how transferred on appointment of new trustee, 65
mortgage, not a proper trust investment, 21, 280, 231
ESCHEAT, none on conviction of trustee, 159, 160
EVIDENCE, allegations on which vesting orders based, conclusive, 142
of fitness on appointment of new trustee, 204
on which executor may allow claim, 83, 84
vesting orders made, 143, 196, 197
268 - Index.
EXCHANGE, disposing of land apart from minerals, etc., 149-151
ju{%ment for, vesting order on, 123-125
EXCHEQUER bill and bonds, investment on, 19
EXECUTION of document, power of Court to order, 123, 124
EXECUTOR becoming trustee when debts and legacies paid, 11, 51
Court cannot appoint under section 25 . . 96, 102, 139, 140
indemnity to, 91-95
joining in giving receipt, 92
liability for not getting in unsecured debt, 178
paying legacy out of estate which proved in-
solvent, 187
of last trustee, when himself a trustee for all purposes, 55
payment into Court by, 144-148, 198-201
power to compound debts, etc., 83-85
question whether a trustee for purposes of section 10 of
Trustee Act, 1893.. 50, 51
relief from liability in respect of devastavit, 186
renunciation of probate, 86
right to plead Statutes of Limitations reserved, 6, 10, 11
special, appointment of, 55
survivorship of office of, 87
trustee within meaning of Trustee Act, 1888 . . 4, 10, 11
Judicial Trustees Act, 1896 .. 181,
183, 186
which sections of Trustee Act,
1893.. 168
when heir of mortgagee is trustee for, 74, 107, 113, 169
See also Personal Repeesentative.
EXONERATION of persons issuing hearer certificates to trustees, 40
lending money to trustees, 80
paying money to trustees, 81, 82
purchasing from trustees, 69
relying on powers of attorney, 89
vesting orders, 161
trustees in respect of compounding debts, etc., 83-85
involuntary losses generally,
91-95
mortgage investments, 41-48,
91
permitting agent to receive
money, 75-77
powers of attorney, 89-91
purchase of land, 42-46
redeemable stock, 30-32
retention of investments, 176-
178
sale of property, 67-69
EXPENSES, of judicial trustee, 212
trustee may rgimhurse himself, 91-95
EXTENT of Trustee Act, 1888 ..4
1893.. 171
Amendment Act, 1894.. 178
Judicial Trustees Act, 1896 .. 190
1
Index. 269
FELON trustee, appointment of new trustee in place of, 95, 96, 98, 102
no provision for making vesting order, 106, 132
trust and mortgage estates of, do not vest in adminis-
trator, 159-161
FEME SOLE, when appointed trustee by Court, 99
when married woman can convey as a, 72-74
FINES on admittance to copyholds, 127, 129
renewal of lease, how raised and paid, 80, 81
FIXTURES cannot be sold separately under section 13 .. 68
FLATS, house cannot be sold in, under section 13 .. 68
FORECLOSURE, effect of, as changing nature of investment, 177
FORFEITURE, none of trust estates in felon trustee, 159-161
FORM of vesting order, 104, 111, 130, 135, 136
FRAUD, claim founded upon, not barred by time, 5, 7
GOOD faith, trustee acting in, protected, 83, 85, 89
GOVERNMENT securities, investment, in, 12, 15, 19
GROUND rents, mortgage of, 44
purchase of, not a real security, 19
GUARANTEED by Parliament, investment in securities, 13, 21, 28
Secretary of State for India, 13, 14, 24, 28
stock of railway in Great Britain or Ireland, 13, 28
water company, 14, 25
HEIR of living person, included in term " unborn person," 112
mortgagee, mortgage estates in copyholds still devolve on, 112,
116
trustee of mortgage estates for executor, 74, 107,
113, 169
vesting orders as to lands vested in, 113-117, 142
trustee, trust estates in copyholds still devolve on, 107, 126
vesting orders as to lands vested in, 103, 109, 142
HERITABLE securities, investment on, 12, 21
HIGH Court, cash under control of, investment of, 15, 16, 28-30, 31
definition of term, 28, 143
jurisdiction over charities, 141, 142
power to appoint new trustees, 95-103
person to convey, 127
give judgment in absence of trustee, 148
make beneficiary indemnify trustee, 151
vesting orders, 103-127, 128-138, 141-144
order payment or chlf^rge of costs, 140
into Court, 145
sanction sale of surface and minerals apart, 149
powers of extended to County and Palatine Courts, 156
under Judicial Trustees Act, 1896 . . 184
procedure in, under Trustee Act, 1893 . . 193-204
270» Index.
HONESTLY and reasonably, Court may relieve from liability trustee
who has acted, 184-187
HUSBAND of beneficiary may be appointed judicial trustee, 207
not generally appointed trustee by Court, 99
relieved from liability in respect of wife's breach of trust, 100
trustee of separate estate of wife in his possession, 6
when must concur in conveyance by wife, 73, 74, 99
IMPOUNDING- interest of beneficiary, application for, by petition, 194
concurring in breach of trust, 151-
155
INCAPACITY, distinction between personal and legal, 54, 143
physical and mental, 106
of donee of power of appointing new trustees, 54, 98
mortgagee, vesting order, 114
trustee, allegation of, vesting order founded on, 142
appointment of new trustee, 48, 53, 54, 98
vesting orders, 106, 132
INCOME producing, mortgage security should be, 20, 227
INCORPOEATED by Act of Parliament, meaning of, 27, 37
water commissioners, 14, 27
special Act of Parliament, railway company^ 13,
22, 23, 37
water company, 14, 25
INCREASE in number of trustees, desirable where sole trustee originally
appointed, 100
not necessary where sole trustee
originally appointed, 49, 59
where no vacancy exists, 58, 99, 100,
101, 140
vacancy has occurred, 49, 58,
100
INDEMNITY to persons acting pursuant to powers of attorney, 89
vesting orders, 161
issuing bearer securities to trustees, 40
lending to trustee for renewal of lease, 80
paying money to trustees, 81, 82
purchasing from trustee, 69
trustees by beneficiaries personally, 95, 154, 155
in respect of acts of agents, 75-77, 91-95
co-trustees, 91-95
breach of trust at request of benefi-
ciary, 151-155
compounding claims, etc., 83
expenses, etc., 91, 94, 95
mortgage investments, 41-46, 91
powers of attorney, 89-91
purchases, 42-46, 70-72
retention of investments, 176, 177
sales, 67, 69-71
out of interest of concurring beneficiary, 151-
155
trust estate, 91, 94
Index. ,271
INDIA, definition of, 24
railways in, investment on stock and annuities of, 13, 14, 18, 24,
25,28,29,31,32
stock, investment on, 12, 16, 17, 21
INFANCY, not incapacity within section 10 . . 53, 54
INFANT legatee, payment into Court, 145
mortgagee, early statutory provisions as to conveyance by, 114,
115
vesting order as to land of, 112, 113, 115
personal representative, 113, 115
registered holder of stock, 132, 133
tenant in tail, effect of vesting order of rights of, 126
trustee. Court will appoint new trustee in place of, 97
early statutory provisions as to conveyance by, 114, 115
no power to appoint new trustee in place of, under
section 10 . . 54
vesting order as to land of, 103, 107, 113
stock of, 129, 132
INHERENT jurisdiction to appoint new trustee, 96, 99
discbarge trustee, 63
none to make vesting order, 110
INNOCENT beneficiary, right of to impound, 153, 154
INSCRIBED stock, meaning of, 26
INSTIGATION of beneficiary, breach of trust at, 151-155
INSTRUMENT, creating the trust, 12, 32, 34, 50, 62, 67, 76, 78, 80, 83,
85, 91, 138, 149
definition of, 162, 165
trustee under, sections 13 and 17-19, apply only to,
168
INSURE, power for trustees to, 78, 79
INTEREST in expectancy. See Revebsion.
judicial trustee may be liable to pay, on money in his
hands, 211
of beneficiary, when may be impounded, 151-155
every class of beneficiary must be considered by trustee, 32
INTERPRETATION Act, 1889, applied to Judicial Trustee Act Rules, 221
definitions in, 164
INVESTMENT, distinction between unauthorised and improper, 20, 46-
48
general rules as to exercise of discretion in selecting, 20,
32,33
improper, liability of beneficiary concurring in, 151-155
power of, under Trustee Act, 1893 .. 12-15, 18-48
does not apply to
specified fund, 18
how to be exercised
20, 32, 33
is an additional power,
34
to what trustees given,
18
earlier Acts, 15-18
272 Index.
lEELAND, Act of 1893 exterds to, 171
Act of 1896 does not extend to, 190
Bank of. See Bank.
High Court in, may make vesting orders as to what property,
105, 143, 144, 175
land in, mortgage of, investment on under Trustee Act, 1893
..12,21
mortgage of, investment on binder earlier Acts, 15
vesting declaration as to, 65
order as to, 105, 143, 144
lunacy jurisdiction in, 105
municipal borough in, definition of, 26
perpetually renewable life leaseholds common in, 229
railway in, investment on-stock of, 13, 23, 24, 25
stock in, vesting order as to, 105, 143, 144
lEREYOCABLB powers of attorney, 91
ISLE of Man, no part of Great Britain, 21
stock, investment in, 17, 28, 31, 35, 39
JOINT tenancy should be created in new and continuing trustees, 105
JOINT trustees, less than whole number of, cannot exercise powers, 84,
92
provisions of Trustee Act, 1888, made .applicable to, 4
JOINTLY entitled, coparceners are, 107
JUDGMENT for mortgage or sale, 117, 128
specific performance, 123
may be given in absence of trustee, 148
meaning of term, 121
neglect to comply with, 123
persons bound by, 122
JUDICIAL factor, 180, 182
JUDICIAL trustee, accounts and audit, 212
administration of trust by, 208-212
application of remuneration of, 213
to Court by, 211, 217
appointment of official of Court, 181, 183, 184, 207,
218, 219
appointment of, applications for, by whom made, 181,
182
modeof, 205, 206,207
statement on, 206
by County Court, 181, 184, 219, 220
district registry, 218
High Court, 181, 184, 205
master, 217
Palatine Court, 181, 184, 219
vesting order on, 207
custody of documents, 210
directions to, by Court, 211, 217
discontinuance of, 215
evidence on which, may act, 211
Index 273
JUDICIAL trustee, for purpose of administering estate of deceased
persons, 181, 183, 216
carrying on business, 216, 217
* special purposes, 216
inquiry into conduct oT, 215
payment of trust money to separate account by, 210,
211
persons eligible for appointment as, 183, 207
reappointment of existing trustee as, 207
removal of, 214, 215
remuneration of, 181, 188, 213, 214
resignation of, 215
security to be given \ff, 208
statement of trust property by, 208
supplying information to the Court, 208
suspension of, 214
■where official of Court is, 207, 208
JURISDICTION of Court to make order, persons need not inquire as tOr
161
persons out of, when appointed trustees, 100, 158
representative of mortgagee out of, vesting order, 113,
142
security situate out of, undesirable, 21
trustee out of, allegation of, 142
appointment of new trustee, 48, 52, 98
vesting order, 103, 107, 129, 134
See also Abroad, Hioh Court, OormTT Coubt, Palatine Cotjet^
New Tbustbe, Lttnaoy, Vesting Oedeb.
LACHES may constitute bar to action against trustee, 10
LAND, definition of, 162, 165
See also Abroad, Coptholds, Devolittion, Leaseholds, Mabrie»
Woman, Mobtgage, Ebqistebbd, Sale, Title, Vesting De-
claration, Vesting Oedees.
LAND charge, investment on mortgage of, authorised by Trustee Act,,
1893.. 34, 36 *
authorised by earlier Act,
16,36 - i
purchase or mortgage of land subject to, .
16, 39, 40 *-
LAST day of term, when trust created by covenant to assign, 121
LEASE, contract to grant, title which must be shewn, 70-72
specific performance of decreed, 110, 124
person appointed by Court to grant, 110, 127
renewal of, power for trustees to obtain, 79, 81 *
LEASED in perpetuity, investment in stock of company whose under-
taking is, 13, 23, 24
- i- .; ■«. 4 ■■- i> -
LEASEHOLDS, assignment of, by married woman, 74
for lives perpetually renewable, 229
included in term "land," 165
instrance of, 79 .^ ,
T
274 Index.
LEASEHOLDS, mortgage of, investment on, 17, 34, 36
title to be sliewn, 41-46
purchase of, by trustees, 42, 67, 71
title to be shewn, 42, 44-46, 70-72
renewable, 79-81, 229
sale of, by trustees, 67, 69, 70
< section 16 does not apply to, 73, 74
26 (v) applies to, 109
29 applies to, 116
LEAVING trust property in hand of agents or co-trustees, 41, 75, 77,
93,94
LEGrACY, action to recover within what period must be brought, 10, 11
payment into Court, 144-148, 200
LEGAL estate in copyhold or customary land, no vesting declaration as
to, 64, 65
trustees lending on mortgage cannot dispense with, 21,
36, 230, 231
LEGATEE beyond the seas, payment into Court, 145
bound by terms of will, 92
bringing action to recover legacy, 10, 11
disputing action of executor, 84
LICENSED premises, loan on, 227
LIMITATIONS, Statutes of, executor may pay debt barred by, 84
may be pleaded by trustees, 5-11
LOCAL Loans stock, investment in, under Trustee Act, 1893 . . 26, 28, 29,
32, 35, 38^0
earlier Acts, 17
LONDON County Council stock, investment in, 13, 28
LUNACY, allegation«of, indemnity in respect of vesting order based on,
142
judges, jurisdiction of, 105
of donee of power of appointing new trustees, 54, 98
donor of power of attorney, implied revocation by, 90
mortgagee dealt with by Lunacy Act, 1890 . . 115
trusrae, appointment of new trustee in chancery, 98, 104, 105
Lunacy, 104-106
out of Court, 53, 54
vesting order upon, 104-106, 131
vendor, vendor held trustee within Lunacy Act, 1890 . . 121
MAJOKITY of trustees not empowered to bind minority, 84, 92
payment into Court by, 144-147
MAN, Isle of. See Isle of Man.
MARGINAL headings no part of Act, 35, 40
Index. 275
MAKKETABLE, mortgage security should be readily, 20, 228
MARRIED woman bare trustee, 72-74
instigating breach of trust, impounding interest of,
151-155
lapse of time bars claims by, 5
mortgagee, 73, 74
separate property of, husband trustee of, 6
should not be appointed trustee, 99, 100
trustee breach of trust by, liability for, 99, 10C[
power to convey, 72-74, 99
MINERALS, sale of land or, separately, 149-151
MONEY, investment of. See Investment.
judicial trustee must not retain in hand, 211
payment into Court, 144-148, 198-201
payment of in pursuance of, powers of attorney, 89-91
receipt of, by agent for trustee, 75-77
trustee, 81, 82
sale by trustee must be for, 67
trustee must not leave in hands of agent or co-trustee, 75, 77,
93,94
what, trustee liable for, 91-93
MORTGAGE, cases in which relief under Act of 1896 has been refused,
186
ceasing to be a sufficient security, 177
debentures, 16, 35, 39
definition of, 162, 165
for payment of costs, 141
debts, 117
premiums on renewal, 80, 81
foreclosure of, 177
land, devolution of, 112, 116
liability of trustee for improper, 47, 48
not a trust, 163, 168, 169
of charges under Improvement of Land Act, 16, 34, 36
copyholds, 120, 234
ground rents, 44
land in Ireland. See Ireland.
leaseholds, 17, 34, 36, 41-46
property, 42
railway companies, 34, 37
proportion of advance to value of land, 41-44, 46
requisites for proper, 20, 21, 36, 225-234
stock, not a proper trustee investment, 234
subject to drainage changes, 16, 39, 40
title which trustees should require on, 41-46
to married woman, 73, 74
trustees, 19-21, 41-48
vesting declaration as to, 64, 66, 169
in beneficiaries by the Court, 108
in new trustees, 64, 66
orders as to, 108, 112-117, 168, 169
costs of, 141
who may apply for, 137
See also Real Secueities.
276 Index.
MORTGAGEE, definition of, 162, 165
heir of, copyholds still devolve on, 107, 112, 116
trustee for executor, 74, 107, 113, 169
« vesting orders as to lands vested in, 113-117, 142
infant, 112-115
married woman, 73, 74
personal representative of, where none, 114, 116
vrhere uncertain who is, 117
power of sale of, 68, 150, 197
trustee absconding, vesting order made, 108
when trustee of the land, 65, 73, 74, 114, 115, 168-170
surplus sale moneys, 6, 146, 169
MOBTGAGOB, when trustee for mortgagee, 65, 120, 121, 169, 170
MUNICIPAL borough, definition of, 26
stock of, investment on, 14, 26
NEW trustees, appointment of, application for, by whom made, 137, 138
practice as to, 193, 194,
202-204
by Court under Trustee Act, 1893 .. 51,
95-103, 104-106
earlier Acts, 51, 96, 99
inherent jurisdiction, 96i
99
vesting orders on, 103-106,129-
131
by individuals under Trustee Act, 1893
..48-61
earlier Acts, 50
instruments, 48, 54
vesting declara-
tion on, 63-66
no vesting order on, 106
by lunacy judges, 104-106
personal representative of last trustee,
48,55
persons nominated to appoint, 48, 54,
61
surviving trustees, 48, 55
costs of, 140, 141
efi'ect of, 49, 60, 138-140
number of new trustees. See Number
, OP Tbustees.
of bare trusts, 50
charitable trusts, 51
constructive trusts, 50, 97, 122
estates of deceased persons, 50, 51, 96,
102, 139, 140
part of trust property, 49, 52, 58, 101
Settled Land Acts, 52, 157-159
•/ persons eligible, 56, 57, 99, 100, 158
' persons who may apply to Court for, 137,
138
powers of new trustees, 49, 60, 138-140
separate sets of trustees, 58, 101
so as to enable' discharge of trustee, 100
' •• vesting order, 98, 101
whereno vacancy has occurred, 58, 99-101
Index. 277
KO existing trustee, Court may appoint if, 95, 97, 102
heir or personal representative of last trustee, vesting orders when,
103,-109, 132
mortgagee, vesting orders when,
114, U7
person nominated by instrument to appoint, statutory power when,
48,-54:
personal representative of last trustee, appointment by Court when,
97
vacancy, Court but not individual can appoint new trustee if, 58, 101
NOMINAL stock, meaning of, 26
NOMINATED to appoint new trustees, person, 48, 54
trustee by will and predeceasing testator, person, 50, 60
NOTICE of lessor's title, 71
revocation of power of attorney, effect of, 89-91
trust affecting title, 74
vesting order, effect of, 130, 137
NUMBER of trustees, increase in. See Increase.
original, usually mamt'ained on appointment, 100
reducing, on appointment of new trustee, 49, 59,
100
where no new trustee appointed, 61-63,
101
when large, Court will appoint new trustee, 97
reduced, no immediate need to restore, 59
where appointment made out of Court, 49, 58, 59
Court appoints, 100, 101
See also Sole Trustee.
OFFICIAL of Court, appointment of as judicial trustee, 181, 183, 184, 207
definition of, 189
provisions applicable to when judicial trustee, 207,
208, 218, 219
OFFICIAL truslee of charitable funds not trustee under Act of 1888 . . 4
OMISSION of property from vesting order, further order made, 136
to obtain direction of Court, 185, 187
OPTION to purchase, exercise of does not make lessor trustee for lessee;
121
trustee should not give, 68
OEDER, appointment of trustee by, 95, 96
for mortgage or sale, 117
payment into Court, 145
in action, 122, 124
meaning of word, 121
vesting property. See Vesting Oedee.
ORDINARY stock of railway company, paying any dividend, 23, 28, 29
dividend of 3 per cent., 13,
22,23
water company, paying dividend of 5 per cent., 14,
25
split into " deferred " and " preferred " ordinary stock,
22, 23, 25
278 Index.
f
PALATINE'Court, jurisdiction under Trustee Act, 1893 .. 156
Judicial Trustees Act, 1896.. 184,
219-221
PARLIAMENTARY stocks, investment on, 12, 16, 18, 19 ^
PART of trust property, appointment of new trustees for, 49, 52, 58, 101
sale of, 67, 68, 149, 150
PARTITION action, appointment of new trustees in, 97
severing mines on, 149
vesting order consequential on judgnlent for, 123
PARTNERSHIP, conversion of trust property to own use by, 7
loan to, 177
PAYMENT int6 Court, 144-148
procedure on, 198-201
definition of word, 162
of costs, 140, 141
debts by executor, 83-85
sale for, 118
insurance premiums, 78, 79
premium on renewal of lease, 79-81
Permanent, mortgage security should be, in nature and value, 20, 225
PERPETUALLY renewable leasebolds, investment on, 229
PERSON, when includes corporation, 57, 183
PERSONAL representative of last trustee, power of, to appoint new
trustee, 48, 55
when is a trustee, 55
where none, 97, 103, 109,
132
where uncertain who is,
103, 109, 132
who is, 55, 132
of mortgagee, when heir is trustee for, 74,
107, 113, 169
where none, 114, 116
uncertain who is, 114,
117
Bee also Exeoutok.
*
PERSONAL liability of beneficiary absolutely entitled, 95
concurring in breach of trust, 154, 155
PERSONAL security, how far to be considered in mortgage investment,
233
PE'TITION, when applications under Trustee Act, 1893, made by, 194-
196
POPULATION, effect of variation in on certain investments, 26, 177
investment on stock of municipal borough having certaip,
14, 25, 26
water commissioners of area having
• certain, 14, 27
POSSESSED, definition of, 163, 166
Index. 279
POSSESSION, ' '
estate in, mortgage investment by trustees should lie on,
230 r ^ V ,
mortgagee entering into, 115
until interest in, statutory period of limitation does not
run, 5, 9
POSTPONE sale, power to, is merely a power of management, 178, 179
POWERS
See Agent, Attorney, Compound, Disclaimer, High Court,
Insure, Investment, New Trustees, Postpone, Purchase,
Receipts, Renewal op Lease, Sale, Vary Contract for
Sale, Varying Investments.
PRACTICE undei^ Trustee Act, 1893 .. 193-204
Judicial Trustees Act, 1896 . . 205-221
PREFERENCE stock, meaning of discussed, 22, 23
of railway company, investment on, 13, 22, 23,
28,29
water company, investment on, 14, 25
PREMIUM on insurance of trust property, how paid, 78-7'9
rayable by judicial trustee, on guarantee, 209
where paid on granting lease, special conditions necessary,
71, 72
PRESUMPTION of death, when arises, 109, 135
PROPER, investments must be not only authorised but also, 20, 46-4S
PROPERTY abroad. See Abroad.
definition of, 163, 166
meaning of word as used in section 8 .. 42
PROFIT, trustee must not make, out of the trust, 95
PURCHASE by trustee of ground rents, 19
land, may be subject to drainage charges,
39, 40
title to be shewn, 42, 44-46
Vendor and Purchaser Act need not
be excluded, 70-72
PURCHASER from trustee, paying purchase money to solicitor, 76
provisions protecting, 69
restriction on objections by, 69, 70
held not entitled to inquire whether married woman a
trustee, 74
title which may be required by, 45, 72
RAILWAY company, investment in stock of, 13, 14
And see Annuities, Debenture, Debenture Stock, Guaranteed,
India, Ireland, Incorporated, Mortgage, Leased in Per-
petuity, Ordinary Stock, Preference Stock.
REAL securities, extension of power to invest in, 34-36
generally discussed, 19-21, 225-234
investment in, under Trustee Act, 1893 .. 12
earlier Acts, 15- 17
See also Mortgage.
280 Index.
KEAPPOINTMENT of existing trustees by Court, no longer the practice,
63, 100. 101
fof purpose of discharging
trustee, 100
making vesting order, 101,
^ 106, 131
trustee as judicial trustee, authorised, 207
REASONABLY and honestly, relief from liability of trustee who has
acted, 185-187 •
EECEIPTS by agents of trustee, 75-77, 91-94
attorneys, 75, 89
bankers of trustee, 75-77, 93
co-executors, 92
co-trustees, 92
solicitors of trustee, 75-77
trustees, 80-g2, 91, 92
"EECITALS, twenty years old, evidence, 70
what, should be inserted in vesting orders, 136
. &e flsfeo. Allegations.
EECONSTRUCTION of company, where trustee may accept new
shares on, 177
EECON VEYANOB includes " transfer," 116
of mortgaged land, order for, when made, 113-117
EEDEEMABLE stocks, exemption from liability for retaining, 31, 176,
177
restrictions as to investment on, 28-32, 38, 39
REFUSING to act, trustee, 48, 52, 53, 60
convey, representative of mortgagee, 114, 116
trustee, 103, 109, 110
obey order of Court, 123, 129, 135
transfer, trustee, 129, 134, 135
EBGISTERED charge, question whether proper security for trustees, 231
EBGISTEEED land, vesting order as to. 111, 202
EEGISTEATION of deeds, 64, 66
title, 66, 111, 202
EEIMBUESEMBNT of judicial trustee, 212
trustee of expenses, 91, 94, 95
right to, not precluded by default of co-trustee, 95
RELIEF from liability for breach of trust, Court may give, 46 180
185-187 J 8 . ^ I io",
REMOVAL of judicial trustee, 188, 207, 214-216
trustee, 48, 57, 87, 95-97, 181, 183
against his will, 57, 96, 183
See also Dischaege.
EEMUNBEATION of judicial trustee, 181, 188, 213, 214
trustee, has been allowed in exceptional case, 184
not generally entitled to, 95
Index. 281
RENEWABLE, inveatment on mortgage of leaseholds perpetually, 229
RENEWAL of lease, power for trustee to obtain, 79-81
RENT-CHARGE, investment on mortgage of land", subject to, 229
sale in consideration of, 67
stock of railway company, investment on, 13
RENUNCIATION of powers, 86
probate, 86
REPEAL of earlier Acts by Trustee Act, 1893 . . 170-174
REQUEST in writing, breach of trust committed at, 151-155
REQUIRE trustee to convey, who is person entitled to, 79, 110
REQUIRED to convey, where representative of mortgagee has been, 113,
114, 116
trustee has been, 103
RESTRAIN^ on anticipation, right to impound as against, 151, 154
rights under Statutues of Limitations as
against, 5
RETENTION of investments which have ceased to be authorised,
176-178
moneys in hands of agent of trustee, 75, 77, 93, 94
co-trustee, 93, 94
judicial trustee, 211
redeemable stocks, 31, 176, 177
title deeds by vendor on sale, 71
trust property, bars rights under Statutes of Limita-
tions, 5, 7
unsold, 69, 176-179
RETIRING judicial trustee, 215
Settled Land Act trustee, 156, 157
trustee, appointment of new trustee in place of, 48
by payment into Court, 147
costs of, 140
liability of, for contemplated breach of trust, 102
may concur in appointment of new trustee, 50, 60
when must concur in transfer of trust property, 66
under section 11, trustee, 61-63
■without appointment of new trustee, 61-63
REVERSION, investment on mortgage of, 230
person interested in, claims of, when barred, 5, 9, 10
costs borne by, 140
rights of, as to insurance, 78, 79
renewable leases, 81
to be considered in selecting invest-
ments, 20
consulted on appointment of
new trustee, 56
sale of, 45, 68
REVOCATION of power of attorney, may be expressed or implied, 90
notice of, 90
RIGHTS, definition of, in Trustee Act, 1893 .. 163
282 ' Index.
RULES, County Court, 156
Judicial Trustee, in extenso, 205-223
Trustee Act, 1893, in extenso, 193-204
Supreme Court, as to investment of cash under control of
Court, 28
" Supreme Court Fund, 200, 201
under Judicial Trustees Act, 1896, provision for, 187-189
SALE, apportionment of purchase-money on, 68
by trustees, 67-72, 149-151 •
receipt of purchase-money on, 75-77, 81, 82,
should be for money only, 67, 85
subject to conditions, 67-70
with concurrence of others, 67, 68
in lots, 127, 138
partition action, 123, 124
judgment for, vesting order on, 117-122
of part of property, 67, 68, 149, 150
surface apart from minerals, 149-151
power of, should be given by mortgage deed, 231
to postpone, nature of, 178
provisions of Vendor and Purchaser Act, 1874, and Conveyancing
Acts as to, 70-72
subject to conditions, 67-70
title to be shown on, 45, 70-72
under Settled Land Acts, 150, 151
vesting orders completing sale by private contract, costs of, 141
SCOTLAND, Act of 1888 does not extend to, 4
1893 „ „ 171
1894 „ „ 178
1896 „ „ 190
burghs and cities in, (Question whether municipal
boroughs, 26
county councils in, definition of, 26
investment on mortgage of land in, authorised, 12, 15, 21
judicial factor in, 180, 182
law of, as to receipt of money by trustee's solicitor, 77
general declarations as tOj 77, 171
repeal of Acts except as to, 170, 171
vesting orders cannot be made as to property in, 143, 175
SCOTTISH trusts, 171
SECOND mortgage, not a proper investment for trust moneys, 21,
230, 231
SECURITY to be given by judicial trustee, 187, 208, 209
See Real Sboubity and Mobtqage,
SECURITIES, custody of, 41
definition of, 163, 167
payment into Court of, 144-148
SEPARATE parts of trust property, new trustees of, 49, 52, 58, 101
costs of appointing,
140
sale of, 68, 149-151
SEPARATE property. See Mabried Woman.
Index. 283
SEPAEATE sets of trustees, appointment of, by Court, 58, 101
costs of, 140
out of Court, 58
SERVICE of petitions, on whom to be made, 195-197, 199, 201
summons, on whom to be made, 203, 204
for appointment of judicial trustee, 205, 206
on trustee dispensed with, 148
SETTLED Land Act, powers of sale and exchange under, 150, 151
trustees for purposes of, 156-159
SHARES included in terms " securities " and " stocks," 163, 167 ,
in ships, vesting orders as to, 131, 137, 167
not fully paid up, 136, 167
trustees for sale cannot sell in consideration of, 67, 85
vesting declaration cannot be made as to, 64, 66
SHIPS vesting orders as to shares in, 131, 137, 167
SHORT title of Trustee Act, 1888 . . 4
1893.. 172
Amendment Act, 1894 .. 179
Judicial Trustees Act, 1896 .. 190
Colonial Stock Acts, 192
SOLE trustee, appointment of, by Court, 100
out of Court, 49, 59
judicial trustee as, 181
trustee in addition to, 43, 97, 100
exercise of powers by, 83, 84
provisions of Trustee Act, 1888, expressed to apply to, 4
trustee cannot retire so as to leave a, 62
SOLELY entitled, who is a trustee, 107
SOLICITOR, leaving trust property in hands of, 41, 77, 93, 187
may be appointed agent to receive moneys, 75-77
of beneficiary, may be appointed judicial trustee, 207
not appointed trustee by Court, 99, 158
selectioQ of valuer should not be left to, 43
SPECIFIC performance, vesting orders on judgment for, 123-125
SPLIT stock, 22, 23, 25
STAMP on deed of appointment and vesting declaration, 64
STATUTES of Limitations, executor may pay debt barred by, 84
trustees may plead, 5-11
STOCK, definition of, 163, 167
vesting orders as to, 129-137
STOCK mortgage, trustees should not invest on, 234
STOP order, notice of vesting order acts as a, 130, 137
SUBMORTGAGE, when trustees may invest on, 186, 231
SUMMONS, applications under Trustee Act, 1893, by, 202, 203
, yy Judicial Trustees Act, 1896, by, 205, 206
284 Index.
SURRENDEE copyholds, married woman bare trustee may, 72
persons appointed to, 129 , ,
SURRENDER of copyholds, cannot be dispensed with by vesting
declaration, 64, 65
covenant f^, when creates trust, 120, 170
dispensed with by vesting orders, 126-129
SURVEYOR reporting on proposed mortgage security, 41-44
SURVIVING- trustees or trustee may exercise trusts or powers, 85-88
TENANT for life, not appointed trustee by Court, 99, 158
to be considered in selecting investments, 20
consulted on appointment of new trustees, 56
rights of, as to insurance, 78, 79
■* renewable leases, 81
. valuation of interest of, 68
TITLE of applications to Court, 105, 201, 202
TITLE, constructive notice of, 71
devolution of, on death, 107, 112, 116 *
in case of married woman trustee, 72-74
investigation of lessor's, may be dispensed with on mortgage by
^ trustee, 41, 44
shorter than purchaser entitled to, may be accepted by trustee
on mortgage, 42, 44-46
shorter than purchaser entitled to, may be accepted by trustee
on purchase, 42, 44-46
statutory provisions as to, when trustees should exclude, 70-72
what lessee or sublessee entitled to, 70-72
purchaser on open contract entitled to, 45, 72
TRADE, judicial trustee carrying on, 216, 217
machinery, separate sale of, 151
purposes, investment on mortgage of land used for, 42, 225-228
TRANSFER, definition of word in Trustee Act, 1893 .. 163, 168 ^
of registered shares, cannot be by vesting declaration,
64,66
of mortgage, by married woman, 73, 74
included in expression " reconveyance," 116
on appointment of new trustees, 64, 66
precautions' to be taken on, 42, 46
TRUSTEE, who is, for purposes of Trustee Act, 1888 ..4, 6
Trust Investment Act, 1889 .. 18
Trustee Act, 1893, Investment
^ sections, 18, 34
Trustee Act, 1893, section 10.. 50, 51
Trustee Act, 1893, sections 13, 17-
19..68, 77, 79, 81, 168
Trustee Act, 1893, vesting order
sections, 170
Trustee Act, 1893, generally, 163,
168-170
Amendment Act, 1894 .. 178
Judicial Trustees Act, 1896 ..185
Index. 285
TBVSTEE— continued.
See also Abeoad, Absconding, Additional, Bankruptcy, Bare
Trustkb, Constrttctive Trustee, Oontikuing Trustees, Con-
vict, Co-trustees, Death of Trustee, Declining to Act,
Felon, Incapacity, Infant, Joint Trustees, Judicial Trustee,
Lunacy, Majority of Trustees, Married Woman, New
Trustees, Number of Trustees, Official Trustee op Chari-
table Funds, Reappointment, Refusing, Removal, Remunera-
tion, Retiring, Separate Sets of Trustees, Sole Trustee,
Surviving Trustees, Unfitness, Vacancy among Trustees.
UNAUTHORISED investment, liability in respect of discussed, 47
vesting order as to, 131, 136
And see Investment.
UNBORN persons, bound by order, 122
contingent rights of, vesting order as to. 111, 112
declared trustees and new trustees appointed, 97
meaning of term, 112
UNCERTAIN whether heir, personal representative, or devisee of mort-
gagee living or dead, 114
last trustee of land living or dead, 103, 108, 109
sole or joint trustee of stock living or dead,
130, 135
which devisee of mortgagee survived, 114
trustee of land survived, 103, 108
who is heir, personal representative, or devisee of trustee
of land, 103, 109, 132
who is heir, personal representative, or devisee of mort-
gagee of land, 114
UNFITNESS of trustee, appointment of new trustee by Court, 96-98
out of Court, 48, 53
vesting orders, when can be made, 106
UNMARRIED woman, formerly not appointed trustee by Court, 99
UNSOUND mind. See Lunacy.
VACANCY among trustees, effect of on powers and trusts, 85-88
need not immediately be filled up, 59
not obligatory to fill up every, 59, 100
if none, no power to appoint new trustee out
of Court, 58
if none, the Court can appoint new trustee,
101
VALUATION for purposes of mortgage, 41-44
apportionment on sale for lump sum, 68
trustees should not sell at price to be fixed by, 68
VARYING investments under Trustee Act, 1893 . . 15, 30, 33
earlier Acts, 18, 30
VARY contract for sale, trustee's power to, 67
VENDOR, when trustee for purchaser, 120, 121, 170
VESTING declaration, generally, 63-67
286 Index.
m »
VESTING ORDER, applioatien for, persons entitled to make, 137, 138
practice as to, 193-196, 202-204
appointment of person to convey, in place of, 127 *
•bontingent rights in, 103, 111, 112, 117, 122
as to land, copyhold, 126-129
generally, 103-129
leasehold, 107, 109, 116, 165
mortgages, 108, 112-117
registered, 111, 202
property abroad, 143, 144
of charity, 141
lunatics, 104-107, 131, 142
stock, generally, 129-137
sharesSn ships, 131, 137, 167
ihares not fully paid up, 135, 136
unauthorised invesfments, 136
cases of difBculty not provided fw by Act, 106, 132
courts having jurisdiction to make, 104, 105, 156
effect of, as to copyholds, 126-129
, discharge of trustee, 95, 96, 101
, land generally, 125-127
first authorised by Trustee Act, 1850.. 110 *
form of, 104, 111, 130, 135, 136, 202
in case of judgment for specific performance, 123-126
or order for sale or mortgage, 117-
123
mortgages, mortgagee an infant, 112, 113
representative of mortgagee an
infant, 115
representative of mortgagee not to
be found, 113
representative of mortgagee out of
jurisdiction, 113
representative of mortgagee
refusing to convey, 114
representative of mortgagee, un-
certain whether living, 114
representative of mortgagee,
uncertain which survived, 114
representative of mortgagee,
uncertain who is, 114
representative of mortgagee,
« where none, 114
order for payment into Court, 145, 147
trusts, appointment of new trustee, 103-106,
129-131
no representative of last trustee,
103, 109
trustee an infant, 103, 107, 129,
132, 133
not to be found, 103, 108, 129
out of jurisdiction, 103, 107,
129, 134
refusing to convey, 103, 109,
110, 129, 134, 185
unborn persons trustees. 111, 112
uncertain whether living, 103, 108,
109, 130, 135
Index. 287
VESTING ORDER, in case of trusts, uncertain whicli trustee survived,
103, 108
who representative of last
trustee, 103, 109
indemnity to persons acting upon, 161
WATER commissidners, investment in stock issued by, 14, 27
WATER company, investment in stock of, 14, 25
WILFUL default of trustee, loss arising from, 91, 93
WILFUL refusal or neglect by trustee to convey land, 103, 110
WILL, appointment of new trustees by, 56
creditors of testator not bound by terms of, 92
WRITING, appointment of new trustee must be by, 48, 56
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