OQ < -J tn oi > z a o u o o SI o J3 12 2J o [I. U in ■• © 03 c rj. 'Tju^^ Cornell University Library KD 1480.U77 1868 3 1924 022 188 498 Cornell University Library The original of tiiis book is in tile Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022188498 MANUAL OF THE LAW RELATING TO THE OFFICE OF TEUSTEE; ^.pIpijzTiri^ of BMntm, Jforms, dc. BY R. DENNY URLIN, ESQ., OF THE MIDDLE TEMPLE, BAKUISTER-AT-LAW. THE THIRD EDITION, EE VISED .^NT) ENEj^EGED. LONDON: HENRY SWEET, 3, CHANCEEY LANE, aato ISoDfesellcr anir |3utiUsIjer ; DUBLIN : HODGES, SMITH AND CO. 1868. LONDON : PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. INSCKIBED (by PERMISSION) TO THE EIGHT HON. JAMES ANTHONY LATVSON, LL.D,, Q.C., M.P., LATELY HEK MAJESTY'S ATTORNEY-GENERAL FOR IRELAMD, AS A SLIGHT TEIBUTE OP ADMIRATION FOR HIGH FORENSIC AND GENERAL ATTAINMENTS, AND OF GRATITUDE FOR MUCH PERSONAL KINDNESS. Trinity Term, 1868. PREFACE TO THE THIRD EDITION. Little apology was required for the first publica- tion of this book ; for at that time no work on the same branch of law had appeared for many years ; and the " Trustee Acts" and " Trustee Belief Acts," and many important decisions, had altered the law very much, and had rendered even the comprehensive work of Mr. Lewin " on Trusts" of comparatively little value. That standard text- book has since been more than once carefully re- edited. It is, however, supposed that a much smaller volume, containing a summary rather than a full exposition, of the Law of Trustees, may still be found useful, especially to solicitors and students. The Reports contain more than 5,400 decisions directly or indirectly affecting this branch of law. Only a selection from them can be brought within the narrow limits of this book; but it has been sought to refer to the more recent and more im- VI PREFACE TO THE THIKD EDITION. portant of them, and especially to those in which the earlier cases are cited. The present edition contains not only the Trus- tee and Trustee Relief Acts, but also such portions of later statutes as affect Trustees. A chapter has been added on Charitable and Religious Trusts, which may, possibly, be of ser- vice to those who do not possess Mr. Tudor's work on Charitable Trusts. As the Charitable Trusts Acts have also been lately edited by Messrs. Cooke and Harwood (of the Charity Commission) it is considered unnecessary to include those Acts in the Appendix of Statutes. Trinity Teem, 1868. SUMMARY OF CONTENTS. CHAPTER I. OF THE CREATION AND NATURE OF TRUSTS : ACCEPT- ANCE OF TRUSTS : DISCLAIMER OP TRUSTS : DEVOLU- TION OF TRUSTS. iNTBODUCTOKy.— Origin of trusts under the Koman law Definition of a trust — and of a Trustee Classification of trusts : — (1.) As to their nature (^.) As to their object . . Creation of trust — may be by parol Statute of Frauds usually created by deed or will requisites for creation of trust . . • • Court of Chancery will carry trusts into execution in conformity with the rules of law Consideration required to support a trust Voluntary trust will be supported, if perfectly created The statutes of Elizabeth All owners of property may be owners in trust Who are ineligible for the office of Trustee the Crown — the Bank— alien feme coverte — infant — feme sole a bankrupt or insolvent . . . . Who should be appointed a Trustee Acceptance of the trust evidenced by : — ( 1.) Execution of the deed (2.) Acting in the trust . . PAGE 1 2 3 3 4 5 .5 6 7 8 8 8 10 11 11 12 12 13 13 14 14 VIU CONTENTS. PAGE Remedy against Trustee executing the deed, or otherwise . - 15 Acceptance of trust will not^e?- se create a specialty debt . . 16 Interference in trust is prima facie evidence of its acceptance 17 A trust after its acceptance cannot be renounced . . . • 17 Disclaimer of a trust, should be by deed . . . . . . 18 Deed of disclaimer — effect of disclaimer . . . . . . 19 Trust devolves upon the surviving Trustee of several . . 20 Extent of the legal interest taken by the Trustee . . . . 21 On conveyance of trust estate, the trust will attach . . . . 22 except in the hands of purchaser without notice . . . . 22 Effect of a general devise of the Trustee's estates . . . . 23 Bankruptcy of the Trustee . . . . . . . . . . 24 CHAPTEE 11. OF THE APPOINTMENT OP NEW TEUSTEES TJNDEE A POWER. Power of appointing new Trustees . . . . . . . . 26 Words of, to be followed; and legal transfer made to new Trustee 27 Iletiring Trustee should see that successor is duly appointed . . 27 Discretionary powers . ■ . . . . . . . . . . 28 Lord Crauworth's Act — new appointment of Trustees . . 28 Appointment by survivors in certain cases : disposition of the Court to uphold the appointment . . . . , . . . 30 Appointment of more or less than the original number of Trustees . . . . . . . . . . . . . . , , 31 Eight of retiring Trustee to appoint his successor . , . . 33 " Surnving," or "continuing," or "retiring" Trustee . . . . 3i Appointment of a suitable successor to be looked to . . . . 35 Who is "incapable " of acting or "unfit" for the oiBce . . 35 Absence from the kingdom as a disqualification for the office . . 36 Appointment of Trustee pendente lite cannot be advised . . 37 Duty of a newly-appointed Tnistee . . . . , . . . 38 A Trustee remains until he be regularly removed . . , . 39 CONTENTS. 135 CHAPTEE III. OF CHANGE OF TRUSTEES BT THE COUET OF CHANCERY • AND OF THE TRUSTEE ACTS. PAGE Inherent jurisdiction of the Court over the office of Trustee . . 40 Rules of the Court as to a change of Trustees . . . . . . 41 Costs of suit— modem procedure by petition .. .. ..42 Origin of the Trustee Acts of 1860 and 1852 4a Proceedings by Trustees desirous of retiring . . . . . . 44 Deeds to be executed by retiring Trustee . . . . . . 45 Trust devolving on the heir or executor of a Trustee . . . . 46 The Trustee Acts — what property is within their scope . . 47 Lunatic Trustees, and infant Trustees • • . . . . . . 48 Trustees out of the jurisdiction — contingent rights — uncer- tainty as to survivorship . . . . . . . . . . 49 Trustee dying without heir — unborn Trustee— refusal or neglect to convey . . . . . . . . . . . . . . 50 The Court may appoint a person to convey . . . . . . 51 Case of Trustee not found — of infant Trustee of stock . . 51 " Sole Trustee" defined — order for accrued dividends . . 52 Who is "absolutely entitled " — stock in name of a deceased person . . . . . . . . . . . . . , . . 5:^ Effect of vesting order of stock .. .. .. ,. ..54 Copyhold lands — consent of lord of the manor . . . . 55 Heir of lands decreed to be sold— execution of deed . . . . 56 Sects. 32 — 37 of the Act— general power of appointing Trustees 58 The Court will not interfere unless a necessity exist . . . . 60 All persons interested must be before the Court . . . . 61 Eights and powers of newly appointed Trustees . . . . 62 Exercise of discretionary powers by them . . . . . . 63 Power to vest lands,.stock. &c., by order . . . , . . 64 Mode of application to the Court .. .. .. ..65 Orders to be evidence — charity trusts . . , . . . . . 66 Escheat ; commission of inquiry de hmatico ; or suit . . 67 The jurisdiction under the Trustee Acts . . . . . . 68 The second, or Extension Act (1852) 69 a 5 CONTENTS. In proceedings under the Acts ; — page (1.) Their terms to be followed 70 (2.) Application to be made under the proper section . . 70 Thia jurisdiction is extended to the County Courts . . . . 71 CHAPTER IV. OP THE INCIDENTS AND LIABILITIES OF THE OFFICE OF TRUSTEE. Duties of the office must be jointly performed ; " acting Trustee " 72 Delegation of duties ; indemnity clause . . . . . . 73 Recent Act ; liability for acts of a co-Trustee . . . . 74 Trust moneys should stand in joint names of Trustees . . 75 Custody of trust fmids — money left with bankers . . . . 76 Dividends ; how far necessity will exonerate . . . . . . 77 Casualties — loss of trust funds . . . . . . . . . . 78 Loss by bankruptcy — duty of the Trustee in that event . . 79 Trust funds mixed with private funds of the Trustee . . 80 Duties as to trust moneys not to be apportioned . . . . 81 Acting together of Trastees in legal proceedings . . . . 81 Delegation of discretionary powers . . . . . . . . 83 " Interest coupled with a power " .. .. .. ..84 Liability of Trustee joining in a receipt ^ro/orwia .. ..85 Funds not to remain in the power of one Trustee , , . . 86 Liability of executor joining in receipt . . . . . . . . 87 Duty of correcting conduct of co-Trustee— results of neglect . . 88 Decrees against Trustees jointly and severally . . . . . . 89 Suit by a wrongdoer — remedy against cestuiqite trust .. . . 90 Repayment of income paid in excess . . . . . . . . 91 Lapse of time is no bar in case of express, trust . . . . 92 Honorary nature of the ofilce — the principle stated . . , . 93 No profit may be derived from the trust . . . . . . 94 Interest charged on money retained in the hands of Trustee . . 95 or money lodged to his credit . . . . . . . . 96 CONTENTSr XI PAGB The rules as to the rate of interest charged 97 Cestuique trust entitled to profit made by trust fund . . 98 Money in trade, either profits or interest chargeable . . . . 99 No compensation for the Trustee's loss of time and labour . . 100 An exception to the rule .. .. .. .. •• 101 Costs of Trustees who are also solicitors .. .. ..102 Compensation when expressly stipulated for . . . . . . 103 Agreement by a Solicitor-Trustee for full costs . . . . 104 Special allowances — reasonable expenses of trust . . . . 105 Agents may be employed ; advances by Trustee . . . . 106 Law as to Trustees' reimbui'sement . . . . ■ • • . 107 Accidental benefit by failure of the equitable interest . . . ■ 108 Special remedies against Solicitor-Trustees .. .. ..109 The criminal law as to fraudulent Trustees . . . . . . 110 — ♦ — CHAPTEE V. OF THE DUTIES AND LIABILITIES OF TRUSTEES OF PER- SONAL PEOPEKTT. Ordinary duties of a Trustee of stock .. .. ., .. 112 Distringas on stock ; duties of Trustee of a will .. . . 113 Reduction into possession— calling in funds . - . . . . 114 Custody of trust funds, Lord Cottenham's summary of the law 116 Duiy as to calling in real securities . . . , . . . . 117 Payment of mortgage money to a Trustee . . . . . . 118 Receipts of Trustees — the recent enactments . . . . . . 119 Investment on personal security . . . . . . . . . . 120 The rules as to investment — 3 per cent. Consols . . . . 121 The recent Acts as to investments of trust moneys . . . . 122 General Orders of Court, made under the late Act . . . . 123 Investment of trust money in East India Stock . . . . 124 Lord St. Leonards' summary of the Act and Orders . . . . 125 Construction of the Acts— change of investments .. ..126 Loans of trust money on mortgage ; loans on mortgage in Ireland 127 Land Improvement Act, 1864 ; power of varying securities . . 128 CQNTENTS. Mortgages by Trustees— necessity of inquiry into value Investments on leaseholds, and on house property second mortgage . . • • A judgment as security for trust money Money directed to be invested in the funds, or in land Enles as to personalty bequeathed in succession When property is to remain in specie and not converted The rule in Howe v. Dartmouth considered . . . . Discretion as to investments ; trusts for minors Maintenance by advancement out of trust funds Income may be applied for the benefit of minors Duties of Trustee of a policy of assurance Course to be taken where the premiums are unpaid Distribution of fund— notice of assignment, &c. Trasts for married women — the wife's equity to a settlement Orders of the Divorce Court ; payments wrongly made Payment after a power of attorney is revoked . . Recent enactments as to revoked powers of attorney . . Acquiescence of the beneficiary in a breach of trust • . The Trustee's remedy against the interest of the cestui^tie trust 148 Case of cestuique trust receiving too large an income receiving too small an income What course of conduct amounts to acquiescence . . All the circumstances of the case must be looked at . . Release of a breach of trust— requisites of ; lapse of time No rule as to the interval of time that will bar claims Right of Trustee to release ; release should be obtained if pos- sible . . . . . . . . . . Discharge by the Court of Chancery •Tus disponendi — conclusion of trust Equitable title to be clearly made out Liability of executor limited after giving statutory notices Notice of assignment or incumbrance given to the Trustee The validity of a trust may be assumed ; case of an adverse claim being made . . . . . , . . . . . . 158 PAGE . 129 . 130 . 131 . 132 . 133 . 134 . 135 . 136 . 137 . 138 . 139 . 140 . 141 . 142 . 143 . 145 . 146 . 146 . 147 CONTENTS. ■ Xlll- CHAPTEE VI. OF THE ACTS FOE THE EELIEP OF TRUSTEES. PAGJ; Advantages offered by the Trustee Relief Act . . . . . . 160 Lodgment of the fund in Court . . . . . . . . 161 Extension Act, enabling lodgment by majority of Trustees . . 162 Option to the Trustee of proceeding under the Act . . . . 163 The Act applies to all persons holding trust money .. . . 164 Legacies may be paid into. Court ; costs of legatees . . . . 164 Purchase-money may be paid in, where Trustees for sale cannot give valid discharges . . . . . . . . . , . . 165 Procedure— form of affidavit — title of matter . . . . . . 166 General Orders of Court as to the mode of procedure . . 167 Contents of the Trustee's affidavit, &c. . . . . . . . . 168 Investment of the trust moneys lodged in Court . . . .■ 169 Notice of the lodgment in Court — its effect . . , . . . 170 Administration of the fund, on petition ; service of the petition 171 Jurisdiction founded on the petition presented . . . . . . 172 But the Court may direct a suit to be instituted — the summary procedure not suited for all cases . . . . . . . . 173 All questions may however be decided on the petition, if the Court think fit (per Lord St. Leonards) . . . . . . 174 Lodgment of part only of a trust fund . . . . . . . . 175 Declaration of the rights of parties — advantage of . . . . 175 The petition may be presented by the Trustee himself . . 176 "What win justify the Trustee in petitioning . . . . . . 177 Costs not provided for by the Act — but dealt with by the Court on its ordinary principles . . . . . . . . . . 178 Costs may be deducted on making the lodgment . , . . 178 The Trustee is ordiuarily entitled to his costs, but in case of misconduct he may have to pay costs . . . . . . 179 Out of what fund costs will be paid . . . . . . . . 179 Costs now usually paid out of income or dividends . . . . 1 80 Disallowance of the Trustee's costs in certain cases . . . . 180 Trust money under 500?. may now be lodged in the County Court 181 CONTENTS. CHAPTER Vn. OF THE POWERS, DUTIES AND LIABILITIES OF TRUSTEES OF KEAL PEOPEETT. PAGE The Trustee's rights and powers as owner at law . . . . 183 Custody of title deeds and inspection of deeds — other rights in- cidental to the legal ownership . . . . . . . ■ 184 Control of the Trustee oyer estates in settlement . . . . 185 The Improvement of Land Act . . . • . • ■ • • • 186 The Leases and Sales of Settled Estates Acts . . . . . . 186 Trusts to preserve contingent remainders . . . . . . 187 Powers and duties of Trustees for sale . . . . . . . . 188 Sale by auction — provisions of the Act of 1867. . . . . • 190 Mode of sale — and time of sale — discretion of Trustees as to . . 191 Eight of Trustees to hny in at a sale now declared by statute 191 Construction of trusts for sale . . . . . . . . . . 192 Powers of the Trustees — when they may mortgage . . . • 193 Equity of redemption . . . . . . . . . . . . 194 Implied power of sale — powers of sale and exchange .. .. 194 Power to sell does not authorize a partition . . . . . . 195 Trusts for sale created since 28th August, 1860 ; Lord Craa- worth's Act, 23 & 24 Vict. c. 145 196 Costs for sale payable only out of any surplus fund . . . . 198 Settled Estates Act, 19 & 20 Vict. u. 120 — clauses of relating to Trustees 199 Conveyance to a purchaser and receipt of purchase-money . . 199 Transfer of Land Act— indefeasible titles registered in the names of Trustees . . . . . . . . , . . . 200 Eeceipt of Trustees not in general a vaKd discharge for pur- chase-money . . . . . . . . . . . . . . 201 A power of giving receipts not in general implied . . . . 202 Strict construction of such power . . . . . . . . 203 Power of giving discharges implied : — where the trust is of a general character, as for payment of debts 204 or where the sale is directed for the benefit of persons under disability . . . . . . . . . . . . 205 or where the application of the fund is discretionary , . 206 CONTENTS. XV PAGE Suggestions of Lord St. Leonards 207 Power of sale for payment of debts given in certain cases by statute, 22 & 23 Vict. i>. 35 208 Lord Cranworth's Act, 23 & 24 Vict. c. 145 . . .. 208 Trustee for sale not allowed to purchase the trust estate . . 209 or to take a lease of it . . . • . . . . • • 210 Sale voidable at the option of the cestuiaque trust .. . . 210 But laches of the cestuique trust may bar his right . . . . 211 What conduct may amount to laches .. .. •• • • 212 "When the beneficiaries are numerous, a less strict rule prevails 213 Terms of reconveyance, where sale is annulled . . . . 214 Resale of the estate, terms of . . . . . . • • ■ • 214 Case of purchase by Trustee from cestuique trust .. •■ 215 adequacy of price given . . . . . . . . . . 216 Liabilities of Trustees under the Succession Duty Act . . 217 Returns to be furnished by Trustees . • . . . . 218 Trustees to receive compensation under the Lands Clauses Con- solidation Acts .. .. .. .. .. •• .. 218 Duties of Trustees of leaseholds 219 Liability of Trustee for covenants in leases . . . . 219 Assignment of the lease to another . . . . . . . . 220 Indemnity to Trustee against covenants in lease . . . . 221 Twenty-seventh section of Lord St. Leonards' Act . . 221 Trustees of renewable leaseholds . . • • . . . . 221 Trustees of settlement are generally bound to renew . . 222 Fines on renewals of leases, how to be raised . . . . . . 223 Apportionment of renewal fines . . . . . . . . . . 224 Trusts of renewable leaseholds, as affected by stat. 23- & 24 Vict. c. 145 225 The trust will attach to any new lease or renewal obtained by the Trustee 226 Right of the beneficial owner to conveyance from the Trustee . 227 Where the beneficial title is not clearly made out . . . . 228 Several conveyances cannot be required of a Trustee . . . . 229 Conveyance by Trustee — covenants — the word " grant " . . 229 Devise of trust estates, Coo'ke v. Cramford .. . ■ . • 230 effect of devise . . . . . . . . . . • • 230 whether it amounts to a breach of trust ? . . . . . . 231 XVI CONTENTS. CHAPTER VIII. OF TRUSTEES FOK CHARITABLE OK RELIGIOUS PURPOSES. PAGE Rules of the Court of Chancery peculiar to trusts for charitable or religious purposes . . . . . . ■ • • • • • 233 Secret trusts for charities . . . . . . . . . . . . 234 Circumstances under which secret trusts can be enforced . . 284 The "Mortmain" Acts 235 Common law as to charitable trusts . . . . . . . . 236 Trusts of parish property . . . . . . . . . . . . 236 Sir Samuel Eomilly's Act 237 The Charitable Trusts Act, 1853 237 Trustees can obtain the advice and directions of the Board of Charity Commissioners . . . . . . . . . . . . 238 Practice under sect. 28 of Charitable Trusts Act . . . . 239 Charitable Trusts Amendment Acts of 1855 and 1860 . . 240 Applications to the Board for advice, &c. . . . . . . 241 Special enactment as to Eoman Catholic charities . . . . 242 Results of recent legislation as to charity trusts . . . . 242 Application of old endowments, when trust not declared . . 243 Trusts must be fulfilled — case of an asylum chapel . . . . 244 How far the Trustee may exercise control . . . . . . 245 Original intention of the founders to be carried out, if it can be ascertained . . . . . . . . . . . . . . 246 Chapel trusts ; destination of, where evidence deficient . . 247 Change of opinion on the part of the Trustees . . . . . . 247 Removal of minister . . . . . . . . . . . . 249 Notice of meeting of Trustees . . . . . . . . . . 250 Peto's Act for appointing Trustees of chapels, &c. . . . . 250 Appointment and removal of Charity Trustees . . . . . . 251 Eligibility of Trustees — religious opinions . . . . . . 252 " Grammar " schools .. .. .. .. ., .. 253 Removal of schoolmasters . . . . . . . . . . 253 TJnanimity not required of Charity Tnistees . . . . . . 258 Accretion of charity property, how applied . . . . . . 254 leases and sales of charity lands . . . . . . . . 255 Lease of charity lands should not be made to a Trustee . . 256 CONTENTS. SVU PA&B . 257 Official Trustees of charities Exemptions from the Charitable Trusts Acts 257 Irish Acts relating to charity trusts 258 CHAPTER IX. JUDICIAL ADVICE TO TBUSTEES, UNDEE SECT. 30 OP LORD ST. LEONARDS' ACT. Advice and opinion of an equity judge may be obtained by the Trustee, under sect. 30 of the Act 260 Subsequent enactment requiring counsel's signature .. ..261 Practice under general order . . . . . . . , . , 261 Service of parties interested .. .. .. .. ..262 Utility of the enactment 263 CHAPTER X. COSTS AND EXPENSES OF TRUSTEES. Costs and expenses of the Trustee in general allowed out of the trust property . . . . . . . . . . . . . . 264 Reimbursement of Trustees recently provided for by statute . . 265 Costs of new appointment, &c. . . . . . . . . . . 265 of copy deed, counsel's opinion, &c. . . . . . . 265 occasioned by refusal to convey or assign . . . . 266 of disclaiming Trustee . . . . . . . . . . 266 can be claimed against Trustee alone, but may be " mo- derated'? after payment .. .. .. .. 267 of proceedings under Trustee Act . . . . . . 268 of vesting order, &c. . . . . . . . . . . 268 In suits, costs usually allowed to Trustees . . . . . . 269 Other charges, &c., included under "just allowances" .. 270 One set of costs usually given to joint Trustees . . . . 271 Apportionment of costs between defendant Trustees . . . . 271 XVlll CONTENTS. PAGE Costs disallowed when the trust has been unreasonably aban- doned . . ■ . • . ■ . ■ . • • - • ■ • 272 — or assumed . . . . . . • . . . ■ • 273 No costs allowed of unnecessary or vexatious proceedings . . 273 Costs of proceedings under Trustee Relief Act . . . . 274 In some instances, no rule made as to costs . . • • . . 275 Costs are entirely in the discretion of the Court . . . . 275 Circumstances under which costs are in general disallowed . . 276 Latest summary of the rules as to a Trustee's costs . . . . 277 Costs do not necessarily follow a decree against a Trustee . . 279 may be given even where there is a decree with interest against the Trustee . . . . . . • • . . 280 Circumstances imder which the Trustee will be decreed to pay costs of suit . . . . . . . . . . . . . . 280 Costs of setting aside a sale to the Trustee . . . . . . 282 of charity trusts . . . . . . . . . . . . 282 in case where cestuig/ue trust is an infant . . . . 282 of proceedings between the Trustee and third parties . . 283 paid by the Trustee and included in his accounts . . 284 Advances by Trustee, and interest on advances . . . . 285 Lien of the Trustee for costs, advances, &c. . . . . . . 285 Other remedies for present and future claims of the Trustee . . 286 (Note.) — Lien of other parties claiming through or under the Trustee .. .. 286 Conclusion. — Defective state of the English law ; and want of some provision for private trusts being carried out by public official machinery . . . . 288 CONTENTS. APPENDIX A. STATUTES AND PAETS OP STATUTES RELATING TO THE OFPICE OF TRUSTEE. Trustee Acts :— page The Trustee Act, 1850 289 The Trustee Act Extension, 1853 311 Trustee Belief Acts : — The Trustee Relief Act, 1847 316 The Trustee Eelief Act, 1849 319 The Trustee Relief Act, Ireland 320 Lord St. Leonards' Act, 1859 ( The Act to further amend the Law of Property and to relieve Trustees), 22 & 23 Vict. u. 35, ss. 26—33 324 Amendment of the last Act, 23 & 24 Vict. c. 38, ss. 9—12 . . 329 Lord Cranworth's Act, 23 & 24 Vict. u. 145, ss. 1—10, 25—35. 331 Criminal Consolidation Act— Fraudulent Trustees, 24 & 25 Vict. u. 96, ss. 80, 85, 86, 87 340 Improvement of Land Act, 27 & 28 Vict. c. 114, ss. 60, 61 . . 342 MortgageDehenture Act, 1865, 3. 40 343 Jurisdiction in Equity of County Courts, 28 & 29 Vict. c. 99, . ss. 1, 2, 3, 9, 10, 11 344 Investment of Scottish Trust Funds, 30 & 31 Viet. c. 96, s. 5 . 348 Investments in East India Stock, etc., 30 & 31 Vict. c. 132 . . 349 County Courts Amendment [Lodgment of Trust Moneys], 30 & 31 Vict. c. 142, ss. 24, 25 350 Policies of Assurance Act, 1867, 30 & 31 Vict. c. 144 . . 352 — •— APPENDIX B. ORDERS AND RULES OP COURT. Consol. Order XXXV :— Business to be disposed of in Chambers. . . . . . 355 Consol. Order XLI :— Trustee Relief Act 355 Charitable Trusts Act, etc. 357 XX CONTENTS. Investments — Lord St. Leonard's Act : — PAGE Order of 1st February, 1861 358 The Rate of Interest, Orders as to ■ • 358 Equity Procedure ; — 15 & 16 Vict. u. 86, s. 42, Rule 9 359 Special Case in Chancery : — 13 & 14 Vict. c. 35, s. 15 359 Trustee Relief Act, Ireland : — Order (Ireland) of 9th October, 1848 360 Investments (Ireland): — . Order of 24th May, 1861 362 Trustee Act (Ireland) : — Order of May, 1853, statements for appointment of new Trustee (Ireland) . . . . . ■ . • • • 362 APPENDIX C. PRECEDENTS. No. 1. Power to appoint new Trustees .. .• .. .. 365 2. Trustee's Indemnity Clause 367 3. Trustee's Receipt Clause, in a Will . . . . . . 367 4. Power to appoint new Trustees of a Will - . . . 368 5. Trustee's Indemnity Clause in a Will . . . • . . 368 6. Reimbursement Clause . . . . . . . . . . 369 7. Appointment of new Trustees of a WiU of Real and Personal Estate . . . . . . . . . . . . 369 8. Appointment of new Trustees of a Settlement (to be endorsed) . . . . . . . . . . . . 371 9. Clause supplemental to new Statutory Provisions, spe- cifying how new Trustees to be appointed and giving special Indemnity . . , . . . , . . . 372 10. Deed of Disclaimer 373 Index 375 TABLE OF STATUTES REFERRED TO. 13 Eliz. c. 5 [Conveyances for Value] 27 Eliz. c. i [Ditto] 29 Car. 2, cap. 3 [Statute of Frauds], s. 7 9 Anne, e. 5 . . 9 Geo, II. u. 36 [Mortmain] 52 Geo. III. o. 101 [Sir S. Komilly's Act] 58 Geo. III. u. 45 [Church Building Act] 59 Geo. ni. u. 12 [Parish Property] 1 Will. IV. c. 60 [Sugden'.s Act] 2 Will. IV. c. 45 [Reform Act] . . 3 & 4 Will. IV. c. 27 [Statute of Limitations] o. 74 [Fines and Eecoveries Act] s. 32 S3. 23, 27, 29 & 34 c. 104 [Simple Contract Debts] 4 & 5 Will. IV. u. 29 [Real Securities in Ireland] 1 Vict. c. 26 [Wills Act], ss. 30, 31 3 & 4- Vict. c.'77 [Grammar Schools] 5 Vict. c. 5 [Distringas} 6 & 7 Vict. c. 73 [Solicitors' Act], 3. 39 7 & 8 Vict. c. 45 [Chapel Trusts] c. 76 [Act to simplify Transfer of Property], 8 & 9 Vict. c. 106 [Real Property Amendment]. s. 1 . . 3.4 .. PAGE .. 11 ., 10 5 .. 185 .. 235 237, 251 .. 244 .. 236 .. 42 .. 185 .. 92 .. 19 .. 188 17, n. .. 128 .. 21 .. 253 .. 113 .. 267 .. 247 o. 10 . 201 .. 201 .. 230 .. 187 xxu TABLE OP STATUTES. PAGE 10 & 11 Vict. c. 96 [Trustee Belief Act] . . 160, et seq. 274 11 & 12 Vict. c. 68 [Trustee Belief Act, Ireland] . . , . 161 12 & 13 Vict. c. 74 [Trustee Relief Act Amendment] . . 162 (These Acts will iefoimd in the Appendix.) & 14 Vict. c. 60 [The Trustee Act] . . 43 ss. 2, 3, 4, 5 . . 47,48 S3. 7, 8, 9, 10, 11 12 48, 49 ss. 13, 15, 16, .17, 18 . . 50 ». 20 .. 51 S3. 22, 23 . 51,52 S3. 24, 25 . .. 53 S3. 26, 28 . .. 54 ss. 29, 30 . 55,56 8.31 .. 57 S3. 32 to 37 . 58, e# seq. B. 37, 38 ..65 S3. 39, 40, 41 .. 65 ss. 42, 43, 44, 45 .. 66 ss. 46, 49, 52, 53, 54, 67, 68 s. 51 .. 268 S3. 55, 57 . . .. 68 {_This Act appears in externa in the Appendix.) c. 28 [Peto'sAct, Trustees of Chapels, &c.] 250,251 c. 105 [Kenewable Leaseholds, Ireland] 226, n. 15 & 16 Vict. c. 55 [Trustee Act Extension] . . . . 43 s. 2 s. 4 ss. 6, 7 o. 8 3.9 3. 10 s. 13 50 53 54 69 59 69 70 {This Act appears in extenso in the Appendix.) . 69, 11. c. 87 [Jurisdiction of Chancery], s. 15 16 & 17 Vict. t. 51 [Succession Duty Act] s. 44 83.45,48 .. 217 218 TABLE OF STATUTES. PAGE 16 & 17 Vict. c. 137 [Charity Commission] 237, et seq. 18 & 19 Vict. c. 91 [Shares in Ships], s. 10 .. 47 c. 124 [Charitable Tnists Act] 240, 257 S3. 6, 7, 9 .. 240 B. 16 .. 241 s. 22 .. 162 s. 29 .. 257 s. 44 .. 240 S3. 62, 63 . . 251, n. 19 & 20 Vict. c. 120 [Settled Estates Act] s. 10 .. 187 s. 19 .. 199 ss. 23, 24 . . .. 199 c. 76 [Eoman Catholic Charities] .. 242 20 & 21 Vict. c. 54 [Fraudulent Trustees] 110, 340 21 & 22 Vict. u. 72, s. 66 [Ireland— Vesting Orders of L. E. Court] 71, n. 22 & 23 Vict. c. 35 [Lord St. Leonards' Act to further amend the Law of Property and to relieve Trustees] a. 14 .. .. .. ..208 s. 23 .. .. ..119,129,208 s. 26 . . . . . . . . 146 s. 27 . . . . . . . . 221 s. 30 [Judicial Advice to Trustees] 82, 138, 260, 262 s. 31 . . . . . . 74, 107, 265 s. 32 . . . . . . . . 122 (^AU tlie seetions relating to Trustees mil hefownd in extenso in the Appendix.) 23 & 24 Vict. c. 34 [Petitions of Right] . . . . . . 12 c. 38 [Act further to Amend the Law of Pro- perty, Investments, etc., Amendment of Lord St. Leonards' Act] . . 123, 329 s. 9 .. .. .. ..261 ss. 10, 12 .. .. .. 123, 125, 126 {Foi- these sections in extenso, see Appendix, p. 329.) PAGE 242, ,247 239, ,240 Cran- ., 26 .. 196 196, 197 ,. 225 .. 128 139 28 .. 29 119, 209 XXIV TABLE OF STATUTKS. 23 & 24 Vict. c. 134 [Roman Catholic Charities] . . c. 136 [Charity Act Extension] c. 145 [Trustees and Mortgagees — Lord worth's Act] . . . . s. 1 ss. 2, 3, 4 to, 10 ss. 8, 9 s. 25 s. 26 ». 27 =.28 s. 29 {All the sections relating to Trustees will he found in extenao in the Appendix, p. 331, et ««§■.) .24 & 25 Vict. c. 96 [I'raiidulent Trustees], ss. 80, et seq ..110 {These sections mill ie found in the Appendix, p. 340.) 25 & 26 Vict. c. 53 [La»d Transfer— Registered Titles] . . 200 c. 112 [Charity Acts Extension] .. ..241 27 & 28 Vict. c. 114 [Charges under the Land Improrement Act] . . . . 128, 186, 342 28 & 29 Vict. c. 78 [Mortgage Debenture Act], s. 40 . . 343 c. 88 [Trustees jinder Registered Titles— Le- laud] ,. .. .. ..200 c. 99 [County Courts Extension] , s. 1 8, 71, 344 30 & 31 Vict. c. 48 [Sales of Estates by Auction] . . . . 190 c. 54 [Charitable Trusts — Ireland] . . . . 258 C. 132 [East India Stock] .. 124,349 c. 142 [County Courts], ss. 24, 25 . . 181, 350 c. 144 [Assignment of Policies of Assurance] . . 140 {For this Act, see Appendix, p. 352.) TABLE OF CASES. PAGE Abbott, Playters v. . . 224 Acheson v. Fair . . . . 226 Adam, Paget). .. .. 204' Adams I). Clifton .. ..153 Rowley w. .. 51,220 K.Taunton .. 20 Adey ». Arnold .. .. 16 Agabeg v. Hartwell . . 269 Albemarle ». Rogers .. 185 Alderson, O'Reilly D. .. 37 Aldridge u. Westbrook .. 271 Alexander v. Alexander 115, 186 Re .. ..186 Alford, Att.-Gen. v. 97, 170, 285 Allan D. Backhouse . . 221 Allen, In re •• .. 174 Amery, Neave ». .. .. 183 Ames V. Parkinson 118, 133 Amherst v. Duke of Leeds . 79 Anderson, Warter v. . . 265 Andrew, Maddison v. . . 83 Angell i;. Dawson .. 113 Angler v. Stannard 143, 228, 229, 276 Annesley, M'Leod v. 128, 130 t). Simeon .. 184 Anstey, Stronghill v. • ■ 205 Archbutt, Douglas v. 100, 103 Ardill V. Savage . . . . 45 Armstead, Eidsforth v. . . 204 Armston, Re . . . . 274 Armstrong, Robertson v, . . 74 Arnitt, Naylor a .. ..186 U. Arnold, Adey v. V. Ennis Arthington v. Coverley Ashby V. Blackwell Ashmall, Stretton v. Ashton V. Wood .. Aspland v. Watte . . Atkins, Bennett v. V. Delmege PAGE ,. 16 .. 136 .. 185 ,. 145 ,. 127 ,. 230 .. 152 .. 281 .. 210 Att.-Gen. v. Alford 97, 170, 285 V. Aust . . . . 248 V. Bishop of Man- chester . . 244 V, Blizai'd . . 246 1). Brandreth . . 24C u. Brewer's Com- pany .. 276 V. Caius Coll. . . 281 0. Calvert .. 245 D. Clack.. 37,40,84 V. Clapham 248, 252 0. Clarendon 210,256 V. Clifton . . 243 V. Cradock . . 236 V. Dean of Windsor 254 V. Dudley 275, 281 V. Floyer ■V. Gleg . . V. Gould u. Grainger V. Hall . . V. Hamilton V. Hutton V. Kell . . 30 .. 82 243, 246 .. 283 .. 255 .. 194 .. 247 .. 246 TABLE OF CASES. PAGE PAGE Att.-Gen. o. Kerr .. , . 246 Ball D. Harris 193 V Tirhfirld , , 12 V. Montgomery 276 u. Mansfield 264 Bangley, In re 180 V. Marchant . , 255 Banister, Overton v. 138 V. Market I os- Bankhead, In re .. 9 worth School 249 Banks, Lloyd v. 157 v. Mayor of Stam- Mills i;. 193 ford .. 282 Banner, Massey v. . . 78 V. Monroe 248 Bantook, Hockley v. 133 . ■„. Murdoch 248 Barber, Re .. 178 V. Norwich 264 Barnes, Brocksopp v. 105 V. Pearson 39 Barrack v. M'CullocIi 11 V. Rochester 246 Barrett, Saltmarsh v. 100 ,145 1). St. Cross H os- Barrington, Re 138 ,262 pital , , 246 Barrow v. Wadkin ,, 108 - — «. St. John's Hos- Barry, Leigh ». , , 75 pital 257 Bartley v. Bartley . . . , 63 V. Vivian 246 Barton v. Hassard .. . , 93 K.Wilson 272 Barwell D. Barwell .. 95 ,213 V. Wyville 272 Bate V. Hooper 91, 121 ,149 Audley, Chatham v. 101 Bateman v. Davis . . 120 Aust, Att.-Gen. v. ,. 248 Bathurst, In re Pool 33 Avison, Penny v. .. 98 Baud V. Fardell . . 137 Ayles t). Cox .. 55 65 ,269 Baugh, White v. . . 81 Ayliffe v. Murray . . •■ 103 Baxter, In re Bayly v. Gumming 53 20 Baynard v. Woolley 90 91! 149, B. Beadon, Bridge ». . . 272 157 Baber, Johnstone v. 95 ,190 Beard, Boulton v. . . , , 142 Backhouse, Allan v. 224 Beauclerk v. Ashburnham . 84 Badley, Jones «. .. 235 Beckett, Lonsdale y. 33 Ba'gshaw, Matthews v. 101 Beckford v. Wade . . 92 V. Winter 144 Beddoes v. Pugh . . 109 158 Bailey v. Gould 115 Beetlestone, Wood v. 66 Baillie, Leslie v. . . 145 Belchier, Ex parte 78 Manson v. 17 ,102 Belfield, Bradford v. 82 Bainbrigge v, Blair 103 ,105 Bell, Hobson v. 190 Baker v. Baker 212 Meux V. 184 V. Carter 282 Benbow v. Davies . . 266 Eland v. 83 Benn, Peatfield v. . . 273 256 Bennett v. Atkins . . 281 Lyon 11. 102 210 — ^ jix parte • • ^^— V. Bead • . 212 276 ' V. uoing . . Balfour v. Welland 206 Wilson !). . . 230 Balguy, Broadhurst v. 147 Bent, Cafe v. 114 Fosbrooke v. 93 Beresford v. Beresford 141 TABLE OP CASES. XXVU Berwick (Mayor of )». Mur- ray • ■ Wilkinson v, PAGE Best, Camoys i)\ Bethutie, Crackelt «. Bicknell, Evans v, Biddle, Re .. Biddulph, In re .. Biggs, In re Birch I'. Cropper . . In re Birks V. Micklethwaite Biscoe V. Perkins . . Blackwell, Ashby v. Blagrave, Powys v, Blair, Bainbrigge v. Blake V, Bunbury .. Doyle V. Blakeman, Hovey w, Blanford, Willet v. Blanshard, Re Bleazard v. Whalley Blewett V. Millett .. Blizard, Att.-Gen. v. Blogg V. Johnson Bloye, In re Blue t). Marshall Blundell, Lunham v. Boehm, Raphael v, Trafford v. Bolder, Wilding v. Bolland, Bozon V. .. Bond, Clough v. 73, 77, 81 llf Townley v. Booth V. Booth . Kirkman v. Borrer, Shaw v, Bostock V. Floyer . . Boucher, Penfold v. Boulton V. Beard . . Bourset ». Savage .. Bowes w. Strathmore Bowie, Lawrence v. Bowra v. Wright . . Box, In re .. Boyces (Minors), Re 98 .. 78 .. 33 SQ, 280 147, 184. .. 269 .. 179 .. 169 .. 59 .. 172 .. 270 .. 188 .. 145 .. 185 103, 105 .. 186 18,88, 142 .. 88 99 60,110 .. 186 .. 227 . .. 279,281 Burrows 0. Walls 138,150,212 Burtt, In re .. 23,68 Bush, Jevon D. .. .. 186 Bute, In re Marquis of . . 49 Butler, In re .. .. 180 Wardi; 15 Buxton jj. Buxton .. 114,191 b2 XXVIU TABLE OF CASES. PAGE Byam v. Byam . . 20, 64 Byrne v. Norcott 279, 280, 281 Byrom, Corrie ». . . . . 33 C. Cadogan v. Essex Montford v. Sloane v. Cafe V, Bent CafFrey v. Darby . . Caius Coll., Att.-Gen. ii, Caldecott v. Caldecott Calvert, Att.-Gen. v. Cameron, In re Camoys v. Best Campbell, Re V. Walker 84, 121 .. 223 .. 10 .. 114 .. 280 . .. 281 .. 136 .. 245 180, 274 .. 33 .. 13 .. 209 Canterbury, Edenborough v. 270 Carew, Clive v. .. . , 147 Palairet t)... 35,266 Carey, Macnamara v. 38, 112, 116,132,275,279 Carpenter, Edgecumbe v. . . 284 96, 279 96, 275 .. 282 .. 155 .. 210 38, 265 .. 154 -,Tebbs». Carr, Mousley v. . Carter, Baker v. Lowe 1'. V. Palmer . V. Sebright Cater, In re Cawthorne, In re 165, 172, 179 Cazneau, In re 176, 177, 178 Chaigneau u. Bryen ., 38 Chalmers, Brassey v. 20, 82, 196 Chambers «. Waters .. 211 Champion v. Rigby . . 212, 282 Champneys, Sturgis a .. 143 Chandler, Re .. ..110 Chaplin, Viney v 200 Chard, Wright » 148 Charter v. Trevelyan 212, 216 Chawmer, Leedham v. . . 286 Cherrill, Smith J) 11 Chester w. Rolfe .. ..138 PAGE Chetham v. Lord Audley . . 101 Child «. Child .. ..121 Chippendale, Ex parte . . 286 Cholmondely w.'Clinton .. 92 Cooke ». . . 95 Christ's Hospital, Re .. 236 Clack, Att.-Gen. ■». 37,40,84 !). Carlon .. ..103 J). Holland .. 115,141, 285, 287 Clapham, Att.-Gen. w. 248,252 ' Hood V. 92, 135, 148 Clarendon, Att.-Gen. t. .. 210, 256 Clark, Mathison B. .. 101 Clarke, Emmett v. . . 33, 59 Clarkson, Grayburn J). .. 115 Clayton ». Renton . . :. 8 Clegg V. Rowland . . . . 156 Clifton, Adams u. .. .. 153 Att.-Gen. B. .. 243 Clinton, Cholmondely v. .. 92 Clive 1). Carew . . . . 147 Clough i;.Bond 73, 77, 81, 115, 116, 121 Clutton, Ex parte . . .. 14 Cobb, Mitchell v. . . 163, 275 Cochrane ». Robinson .. 221 Cockburn ». Peel .. ..126 Cocker i;. Quayle .. 120,147 Coe, Re 83 Cole V. Wade 20, 62, 63, 82, 84 Colebrooke's case .. .. 213 Coles i>. Trecothick 210,211, 216 Collard v. Roe . . . . 66 Collier K. M'Bean .. .. 21 Payne v 120 CoUingridge, Cook v. . . 93 Collins «. Collins .. .. 135 Crawshay «. .. 122 Re .. .. 219 Collinson, In re .. ..68 Colman, Cruwys v... .. 6 i>. Sarell . . . . 270 Colson, In re .. ..170 Conyngham v. Conyngham 17 TABLE OF CASES. PAGE Cook V. Collingridge . , 93 Cooke V. Cholmondely . . 95 V. Crawford . . 84, 230 ti.West .. .. 174 Cooper, In re . . 36, 177 Loveridgei). .. 157 O'Callaghan «. .. 257 Paget) 193 Wiles » 271 Corley, Dudgeon v. . . 271 Corney, Turner «... . . 73 Corrie v. Byrom . . . . 33 Onslow V 220 Corser, Orrett v. . . 24, 79 Cotham w. West .. ..139 Cottam V. Eastern Counties Railway Company 77, 184 Cottee, Knott v. . . 96, 279 Course v. Humphrey . . 272 Courtenay v. Courtenay . . 45 Courtois, In re .. 168,173 Coventry v, Coventry . . 45 Coverley, Arthington, t). .. 185 Covington, Re .. 164,181 Cowel V. Gatcombe .. 73 Cox, Ayles u. . . 55, 65, 269 1). Cox . . 166, 202 Elseyc 264 Crackelt v. Bethune 96, 280 Cradock, Att.-Gen. v. . . 236 t). Piper .. .. 102 Crane, Peat v 121 Crawford, Ex parte .. 174 Cooke V. 84, 230 Crawshay v. Collins . . 122 Cresswell t). Dewell .. 147 Crewe v. Dicken . . • ■ 63 Croft, Darcy c. .. 134,141 Crosland, Sugden v. . . 94 Cross, In re . . . . 255 Crossley v. Derby Gas Co. 100 Croucher, Slim !'. .. •• 157 Cru*ys !>. Colman . . . . 6 Cuddon, White » 191 Camming, Bayly v. . . 20 Cummins «. Bromfield .. 271 Cuthbert, Heard v. . . 269 D. PAGE D'Almaine v. Anderson . . 32 Dagley t). Tolferry . . . . 138 Daniel «. Warren .. ..135 Darbin, Holder ». . . . . 63 Darby, CalFrey » 280 Harbin!) 100 Darcyi). Croft .. 134,141 Darke B. Williamson .. 285 Dartmouth, Howei). 114,122,135 Dashwood, Springett v, , , 100 Davenport's Charity, Re . . 239 Davey v. Durrant . . . . 190 Davies, BenbowB. .. .. 266 Handley B. .. 163 V. Hodgson 147, 148 In re .. 69,268 Davis II. Chanter .. ..58 Ex parte . . . . 32 Meinertzhagen «... 32 Nealeu. .. 109,158 D. Spurling .. ..81 Davy, Denton t). ., .. 101 Dawber, Foster «. .. .. 18 Dawson, Angell t). . . .. 113 In re .. .. 268 De Lambert, Lake ». .. 12 DeThuisey, Pink w. .. 83 De Winton, Pell «. .. 203 Dean, Farmer v. ., . . 209 Dearie D.Hall .. ..157 Debenham, Lane w. 21, 84 Deffell, Pennell v 80 Delmege, Atkins w. .. 210 Dennis, Re ,. .. 262 Denton v. Davy . . . . 101 K.Denton.. .. 186 w. Donner.. 189,217 Derby Gas Co., Crossley v. 100 Devaynes 1). Robinson .. 90, 189, 193 Devey v. Thornton 143, 229, 273, 276 Dew, M'Gachen v. 38, 91 Dewel],Cresswell ». .. 147 Dickson v. Dickson . . 206 Re .. ..268 TABLE OF CASES. PAGE Dill, Weiss 1) 106 Dimes V. Scott .. .. 135 Dix V. Burford . . . . 75 Mansers. .. .. 194' Dobson D. Land .. .. 186 Docker v. Somes . . . . 99 Dodds I?. Hills .. ..22 Doe d. Dupleix ». Roe . . 30 V. Phillips .. ..183 V, Spencer . . . . 195 Dolphin, Eyre t) 227 Donaldson i). Donaldson .. 10 Donner, Denton v. 189,217 Donoughmore, Field ». . . 229 Doran «. Wiltshire .. 206 Douglas V. Archbutt 100, 103 Downes, Gardiner v. 45, 273 «. Grazebrooke 189,211 Doyle B.Blake .. 18,88,142 Drake «. Whitmore .. 193 Draper, In re . . . . 44 Drayson v. Pooock . . 62 Dresser, Smith v. .. .. 264 Drohan v. Drohan . . . . 186 Drosier !). Brereton .. 132 Drummond v. Tracy . . 12 Dudgeon D. Corley .. 271 Dudley, Att.-Gen. v. 275, 281 Dukeof Leeds D.Amherst.. 79 Dunbar «. Tredennick .. 214 Duncan, Taylor's Trusts, lure 242 Dunn V. Dunn . . . . 286 Dunster, In re .. .. 170 Durrant, Davey i>. . . .. 190 E. East Lancashire Railway Company .. .. 219 Eaton V. Smith . . . . 20 . V. Watts . . . . 6 Eaves v. Hickson ..73, 145, 282 Edenborough v. Canterbury 270 Edgecumbe v. Carpenter . . 284 Edmonds M. Peake.. .. 77 Edwards 1). Jones .. .• 9 Eglinton, Bulkley v. Eidsforth v. Armstead Eland v. Baker Elibank, Murray d. Ellcock V. Mapp Elliott V, Merryman Ellis, Inre .. Ellison V. Ellison Goodson V. In re 17; 18 PAGE .. 33 .. 204 .. 83 .. 143 108, 109 .. 205 .. 52 ..9,10 199,228, 229, 276 .. 59 , 19, 211 .. 264 33,59 .. 115 .. 136 153,210,212 84, 121 147,184 .. 192 .. 15 .. 117 .. 262 .. 167 .. 227 .. 132 Elph, Stacey « Elsey ». Cox Emmett v. Clarke . Empson, Hughes v. Ennis, Arnold v. . Errington, Randall v. Essex, Cadogani). Evans t). Bicknell V. Jackson V. John Powell V. Re .. Everett, In re Eyre ». Dolphin V. M'Dowell F. Fagg, Inre.. .. 33,181 Fair, Acheson v. .. .. 226 Fairlie, Freeman v. 100, 101 Falkiner, Nicholson v. . . 271 Falkneri). Equitable Society 190 Fardell, Baud v 137 Farmer v. Dean . . . . 209 Mills t> 233 Farquhar, M'Queen «. .. 194 Fearnhead, Knatchbull v... 89 Fearns v. Young . . 106, 270 Fell V. Lutridge . . . . 280 Fellows V. Mitchell Re.. 61,269 Fenwick v. Greenwell Fernie «. Maguire . . 118,119 Ferraby v. Hobson . . . . 256 Field V. Donoughmore , . 229 TABLE OF CASES, XXXI PAGE Field, In re 180 Filer, Weston v. Finch, Thompson v. Finlay v. Howard . . Finney, Re . . «• Firrain v. Pulham .. Fisher, Langley v. • # Fitzgerald v. Fitzgerald 56 25, 73, 79, 88, 110 40 Hickson ti. Fitzgibbon v. Scanlan Flanagan v. Nolan. Fletcher v. Green . Reg. V. • V.Walker.. Flitcroft, In re Flood, Lefroy v. Flowers, Newsome Floyer, Att.-Gen. i, . Bostock II. . Foligno, In re Fooks, Strange v. . Pride v, • Foord V. Baker Forbes v. Forbes . V. Peacock, V. Ross Fordi;. Ryan Forshaw v. Higginson Forster v. Hale Fosbrook v. Balguy Foster v. Dawber . Fowler, Pechel v. . Fox V. Fox . . V. Mackreth 24 279 157 118, 135, 279 266 226 281 127, 148 342 80 55 Foxall, Jones v. Fozard, In re Francis v. Francis Franklin, Re Fraser, Lovat k. Freeman v. Fairlie French v. French Frowd, Moore v. Fry V. Fry . . Hamilton v. 157 30 78 164 152 74 256 10 204 121 119,206 45, 272 5 93 18 189 6 93, 209, 212, 217,282 .. 96 .. 174 .. 285 ., 48 .. 284 100, 101 .. 11 104,270 186,191 ,, 272 PAGE Fry, WilkinSD 189 Fryer, In re ..85,103,200 Fulton V. Gilmour . . . , 154 Lowry ». .. .. 17 Gaffee, In re .. .. 177 Gape, Story D. .. 38,59,112 Gardiner v. Downes 45, 273 Garmstone !». Gaunt .. 224 Garrett ». Noble .. ..191 Garth c. Cotton ., ..IBS Garthwaite, Grantley v. . . 224 Garty, In re . . . . 60 Gascoigne, Langford v. 73, 147 Gatcombe, Cowel v. , , 73 Gaunt, Garmstone v. , . 224 B.Taylor .. ..271 Gibbings, Marshall v. . . 144 Gibson, Hunter v. .. . , 61 Gillan, Phene i) 286 Giraud, Re,. .. 14,269 Girdlestone, Watts «. ., 133 Glanville, Taylor v. 228, 280 Glasse, Buckeridge v. . , 148 Glegg, Att.-Gen. v. . . 82 Godfrey, In re , , . . 167 Lord!) 135 Godson, Vincent ti. .. 15 Going, Bennett v 276 Gomley v. Wood . . . . 266 Goodev. West ., ,,170 Goodson jj. Ellison 199,228, 229, 276 Goodwin D. Gosnell .. 109 Gordon v. Trail . . . , 285 Gosnell, Goodwin !). .. 109 Gough, Shine f 183 Gould, Att.-Gen. v. ., 246 Bailey !>. .. ,,115 Governors, &c.i>. Sutton ,. 258 Graham v. Graham . . 37 Grainger, Att.-Gen. u. ., 282 Grant B. Grant .. 5,10,234 Heighington v, . , 279 Wynch )!. .. ■• 16 TABLE OF CASES. PAGE Grantly v. Garthwaite . . 224 Graves ». Graves . . . . 6 Gray v. Gray . . . . 84 D. Haig .. ..79 Grayburn t). Clarkson .. 115 Grazebrook, Downes D. 189,211 Green, Ex parte . . . . 139 Fletcher v. . . 127, 148 In re .. .,263 V. Marsden . . 7 Greenhouse, Ex parte . . 272 Ludlow «. .. 236 Greenwell, Brett v. . . 144 Fenwick v. . . 38 Greenwood v. Wakeford 45, 46, 272 Gregory v. Gregory 212, 282 Gresham, Wiles »... 121, 186 Griffin, Ex parte . . . . 78 t). Griffin .. ..226 Groom, Wilks v. . . 49, 51 Grove v. Price .. .-115 Guedella, Mendes v. 78, 88 Guy, Stiles ». .. 15,88,115 Gyles V. Gyles . . . . 92 H. Hadland, Re . . . . 180 Hadley, v. Hadley . . . . 33 In re .. ..60 Haig, Gray « 79 Haldenby B. Spoflforth .. 193 Hale, Foster v. .. ., 5 Hales, Hethersell v. , . 286 Hall, Att.-Gen. v 255 Dearie v 157 In re 110 ~. V. Laver . . . . 285 ^ V. May . . 23, 231 V. Noyes .. .. 213 Ham, In re 179 Hamilton, Att.-Gen. 0. .. 194 K. Fry . . . . 272 D.Hamilton ., 149 Hammersley, In re .. 180 Hanbury v. Kirkland 73, 74, 86 PAGE Hancox v. Spittle . . . . 56 Handlay «. Davies.. .. 163 Hannah v. Hodgson . . 278 Hannyngton, Wilcocks v. 10 Hansford, Re .. ..170 Harbin 0. Darby .. ..100 Harford, Worrall i>. .. 264 Harper ». Hayes .. ..189 Harris, Ball w 193 V. Harris . .25, 118, 224 In re .. .. 172 Harrison, In re . . . . 60 «. Thexton .. 118 Hart, Rocke v. . . 96, 280 Hartnall, Re . . . . 52 Hartwell, Agabeg o. . . 269 Hassall.Reg. i; 342 Hassard, Barton v... . . 93 Havelock, In re .. .. 71 Hawkins c. Kemp . . . . 84 Haworth, Holgate v. . . 280 Hayes, Harper w. .. .. 189 Hays, Ex parte .. ..139 Haywood, Hide v 280 Hazard v. Lane . . . . 267 Headington, In re . . . . 274 Heape, Sabin v. .. . . 204 Heard v. Cuthbert . . . . 269 Heathcote v. Hulme 96, 99 Heighington v. Grant Henning, Whittle v. Hertford (Marquis of), Hethersell v. Hales Hewitt, Re.. Hickson, Eaves v. . . V. Fitzgerald Hide V. Haywood . . Higginson, Forshaw v. Hill V. Boyle V. Teenery Hilliard, Ex parte . . Hillraan, Lewis v, . . 1). Westwood HiHs, Dodds v. Hine, Prince d. . . Hipwell, Ward v. . . Re 279 144 113 .. 286 .. 68 145, 282 .. 266 .. 280 45, 272, 273 137 141 96 175 32 22 139 245, 254 TABLE OF CASES. XXXUl Hiscox, Willis v. Hobday v. Peters Hobson V. Bell Ferraby v. . . Hockley ti. Bantock Hodges, In re Morris v. . . Hodgson, Davies v. ■ — Hannah v. V. Hodgson ■■ In re Hodson, In re Hogg, Wilkins v. . , Holder v, Darbin , , Holford V. Phipps . . Holgate !J. Haworth Holland, Clack d; 115 PAGE 229,266.276 .. 141 .. 190 .. 256 .. 133 .. 172 .. 224 147, 148 .. 278 .. 157 .. 179 60,172 .. 73 .. 63 .. 266 .. 280 141, 285, 287 104,105 .. 25 Holloway, Marshall v. Holt, Ex parte Hood a.Clapham 92, 1 15, 135, 148 Hooper, Bate v. .. ,, 149 Re 262 Hope V. Liddell . . 23, 286 Hornby, Tarleton v. . . 272 Hoskins, Re . . 58, 61 Hotham, Stephens «. .. 199 Hovenden ». Annesley , . 92 Hovey K. Blafceman .. 88 Howard, In re . . . . 55 Finlay v. ,, ,. 40 V. Rhodes . . . . 272 Howe 0. Dartmouth 114,122,135 Huddlestone v. Whelpdale 224 Hudson t). Hudson., .. 20 Hughes, Ex parte . . 213, 215 D. Empson.. .. 115 u.Key .. ..271 Re 64 Voylei). .. ..10 Hulkes V. Barrow . . . . 222 Hulme Heathcote v. . . 96, 99 ». Hulme . . . . 31 Humberston, Wynne D. .. 184 Hume, Whicker D... .. 242 Humphrey, Course v. . . 275 Humphreys, Re . . 58, 60 PAGE Hunt, Thorndike v, . . 22 Hunter u. Gibson .. .. 61 Marsh » 133 Huskisson v. Bridge • • 6 Hutchinson, In re .. .. 176 Hutton, Att-Gen. 1/. .. 247 Ilminster School, Re . . 243 Ingram, In re .. ..180 Inskip, Braybrooke, v. 22, 23 Ireland, Mortimer v. . . 230 J. Evans v. . . Russell V: White V. . . Jackson, James, Ex parte Jenkins, Richardson v. V, Robertson Jenkyrts, M'Fadden i'. Jenner, Pratt v. Jervoise, In re Jevon V. Bush John, Evans a. Johnson, Blogg v. Kellaway v. V. Kennett Montgomery 1). Swire . . t). Telford Johnston, In re . • V. Lloyd . . V. Newton Johnstone ». Baber Jones V. Badley V, Foxall V. Higgins V. Jones V. Lewis 78, 131 V. Lock Macnamara v, New V. .. 192 •• 235 .. 279 215, 286 .. 16 .. 16 5 .. 145 .. 167 .. 186 .. 15 .. 285 .. 90 .. 204 V. .. 19 .. 29 .. 267 .. 95 .. 118 .. 76 95, 190 :. 235 .. 96 .. 148 .. 224 , 227, 280 .. 10 .. 106 .. 106 TABLE OF CASES. PAGE Jones w. Noyes .. 108 V. Powles .. 22 Re .. .. 179 Joseph, In re .. 167 Joy V. Campbell .. 87 K. Kaye, In re . . .. 12 Keech v. Sandford 93 224, 227 Keighley, Malin v... .. 6 Kekewich v. Manning 10, 234 V. Marker .. 83 Kell, Att.-Gen. v. . . .. 246 Kellaway v, Johnson 90, 147 Kelly, Purcell v. . . .. 212 Kemp V. Burn 279, 281 Kennett, Johnson v. .. 204 Keon u. Magawley . . .. 206 Kernan, Molony v. .. 210 Kerr, Att.-Gen. v. . ■ .. 246 Kettlewell, Meek v. .. 9 Key, Hughes v. .. 271 Kibble, Willis v. . . .. 103 Kilbee v. Sneyd . . 73,81 Kincaid, In re .. 144 King V. Mullins .. 154 V. King .. 278 Small 1). .. 107 Kingdon, Lyse v. . . .. 228 Kinnersley, Marriott v .. 140 Kirkland, Hanbury v. 73, 74, 86 Kirkman v. Booth . . .. 101 Kirton, Wren v. .. 78, 79, 80 KnatchbuU «. Fearnhe ad . . 89 Knight, In re 142 , 164, 274 V. Knight . . .. 6 Knott, 1). Cottee . . 96, 279 Perry v. .. 90 Lacey, Ex parte .. .. 210 Sowarsby v, . . . . 206 Lake K. De Lambert .. 12 PAGE Lamprell, Trutch t). 73,75 Lancashire v. Lancashire . . 82 Land, Dobson ti. .. ..186 Lander J). Weston . . .• 118 Lane c. Debenhara. . 21,84 Hazard v 267 In re 181 Langford «. Gascoigne 73,147 Langley w. Fisher .. .. 157 Langston, Wetherell v. . . 20 Laver, Halli) 285 Lawrence v. Bowie • • 280 Whichcotet). .. 213 Lawson, Nightingale v. . . 224 Le Hunt v. Webster . . 35 Leake, In re .. ..180 Lee y. Brown .. .. 138 V. Young . . . ■ 83 Leedham ». Chawmer . . 286 Leeds Banking Company (Matthewman) .. ..148 (Duke of) V. Amherst 79 Lefroy v. Flood . . . . 6 Legg V. Mackrell . . . . 45 Leigh V. Barry . . . . 75 In re 173 Leslie v. Baillie . . . . 145 Lester D. Lester .. .. 132 Lett, Stahlschmidt v. . . 285 Levett, Inre .. 167,173 Lewis V. Hillman . . 174, 175 Jones w. ..78,131,280 V. Lewis . . . . 285 Lichfield, Att.-Gen. w. .. 12 Liddell, Hope v. . . 23, 286 Life Association of Scotland V. Siddall 23 Lincoln v. Windsor . . 102 V. Wright . . 75, 89 Lister t). Lister .. ..215 Tiddi) 186 Little, Payne v 270 Lloyd «). Banks .. .. 157 Lock, Jones v. . . ..10 V. Lock . . , . 222 V. Lomas . . . . 204 Lockhart v. Reilly . . 15, 131 TABLE OF CASES. PAGE Lomas, Locki). ., .. 204 Lonsdale v. Beckett . . 33 Lord J). Godfrey .. .. 135 LufFi). .. .. 217 Lorenz, In re .. .. 262 Lovat V. Fraser . . . . 284: Loveridge zJ. Cooper .. 157 Lowater, Robinson v. . . 204! Lowe u. Carter •• ..155 Lo wry i>. Fulton .. .. 17 Ludlow, Corporation of, v. Greenhouse . . . . 236 Lufft). Lord .. .. 217 Lunham u. Blundell .. 78 Lutridge, Fell v 280 Lyon ti. Baker .. .. 102 Lyse ti. Kingdon . . . . 228 M. M 'Bean, Collier B 21 M 'Cook, Re .. ..14 M'Culloch, Barrack K. .. 11 M'Donald v. Walker . . 230 M'Donnell ». White .. 213 M'Dowell, Eyrei) 132 M'Fadden «. Jenkyns .. 5 M'Gachen ». Dew . . 38,91 M'Key, Ex parte.. .. 139 M'Leod V. Annesley 128, 130 M 'Queen 1). Farquhar .. 194 Mackenzie, York Buildings Company «. .. ..214 Mackrell, Legg v. .. .. 45 Mackreth, Fox i; . . 93, 207, 282 Macnamara ». Carey 38,112, 116, 132, 140, 275 V. Jones ,279 106 273 83 172 206 Maguire, Fernieo. .. 118, 119 Malbon, Wells b. 145, 179, 274 Malin ji. Keighley.. .. 6 Wilkinson «... . . 81 Mallins, Re .. ..199 Maddeson, Packwood v, Maddison ti. Andrew Magawley, In re . . Keen v. Manchester (Bishop of), Att.-Gen. » 244 &c. Railway Company, In re . . .. 219 Manning, In re .. 51, 58, 60 Kekewich v. 10, 234 Mara!) 148 Manser i;.Dix .. ..194 Mansfield, Att.-Gen. v. . . 264 Manson v. Baillie .. 17, 102 Mapp, Elcocki;. .. 108, 109 Mara I). Manning .. ..148 Marchant, Att.-Gen. II. .. 255 Marker, Kekewich v. . . 83 Market Bosworth School, Att.-Gen. « 249 Marlborough, Shaftesbury v. 223, 224 ■Marner, In re . . 180, 274 Marriott u, Kinnersley .. 140 Marsden, Green v. . . Marsh V. Hunter .. Marshall, Blue v. . . V. Gibbings V, Holloway ■ V. Sladden 104, Marshfield, Talbot v. Marura, Mulhallen i;. Mason v. Morley . . Masselin, In re Massey v. Banner . . Masters, Rashley i;. Mathison v. Clark . . Matthewman's case Matthews v. Bagsbaw w. Brise . . In re — ■ — Powell V. Maude, Scales v. . . Maunsell, Browne v. May, Hall v. V. Selby Maynard, In re Meek v. Kettlewell Meinertzhagen v. Davis Mendes v. Guedella Merriman, Re 7 133 186 144 105 .. 272 .. 278 .. 226 .. 79 .. 172 .. 78 .. 276 .. 101 .. 148 .. 101 .. 78 .. 60 .. 49 9, 10 .. 91 23, 231 .. 90 .. 53 9 .. 32 78, 88 .. 144 TABLE OF CASES. PAGE Merryman, Elliott v. . . 205 Mesnard v. Welford . . 36 Meux u. Bell . . . . 184 Meymott, Noble t). .. 281 Micklethwait, Birks v. . . 270 Middleton v. Reay . . . . 84 Midland Railway Company ». Oswin 219 Miller ». Priddon . . Milles V. Milles Millett, Blewetti). .. Milligan v. Mitchell Mills V. Banks V. Farmer Milsington v. Mulgrave Mitchell V. Cobb, . . ■ Fellows V. . . -, Milligan v. Mockett, Re Moggeridge v. Thackwell .. 33 .. 224 .. 227 .. 246 .. 193 .. 233 .. 222 163, 275 .. 86 .. 246 263 233 Mohun V. Mohun Molony i'. Kernan . . Montford v. Cadogan Montgomery, Ball v. ■ V. Johnson Moore v. Frowd Moravian Society, Re Morgan v. Stephens Morison v. Morison . . Morley v. Morley . . Mason v. . . Mornington v. Wellesley In re . . Morris tj. Hodges Morse v. Royal Mortimer v. Ireland ■ V. Watts Mortimore v. Mortimore Mortlock V, Buller, . Mouls, Shepherd v. Mousley v. Carr . . 1 Moyle V, Moyle Muggeridge, Re . . Mulgrave, Milsington v. Mulhallen v. Marum Mulholland v. Belfast Mullins, King v. . . 266, 283 .. 210 .. 223 .. 276 .. 19 104, 270 .. 36 .. 110 285, 286 .. 78 79 286 57 224 216 230 83 118 189 133 275 76 262 222 226 191 154 211 PAGE Mundel, In re .. ..50 Munroe Att.-Gen. v. . . 248 Munton, Bradley v. . . 269 Murdoch, Att.-Gen. ti. .. 248 Murphy*. O'Shea .. 215 Paterson v. . . 5 Murray, AylifiF w 103 V. Elibank . . . . 143 t'. Mayor of Berwick 98 a. Pinkett .. 141,286, 287 Mussenden, In re . . . . 165 N, Naylor u. Arnitt .. .. 186 Neale !). Davis .. 109,158 Shaw » 286 Neave v. Amery . . . . 183 Nesbitt V. Tredennick . . 227 New ». Jones .. .. 106 Newman v. Warner . . 63 Newsome v. Flowers .. 157, 248 Newton, Johnston ti. . . 76 Orr» 117 Nicholson J). Falkiner .. 271 Nightingale v. Lawson . . 224 Nixon, Williams v. . . 74, 77 Noble, Garrett J) 191 V. Meymott . . . . 281 Vaughton v. . . . . 94 Noel, Ord !). . . . . 189 Nolan, Flanagan v. . . 281 Norcliffe, Winchelsea I). .. 138 Norcott, Byrne v 279 Norway J). Norway .. 19,266 Norwich, Att.-Gen. D. .. 264 Noyes, Hall » 213 Nugee, Sands v. . . . . 32 O. O'Brien, Roche «. .. .. 211 O'Callaghan 1). Cooper .. 275 O'Ferrall u. O'Ferrall .. 222 TABLE OF CASES. PAGE PAGE Onslow «. Wallis . . 108 Perry «. Shipway.. 81 249 253 220 Peters, Hobday v. , , 141 t'. L/Orrie • • Ord V. Noel . . ' . 189 Pett, Robinson v. . . . . 100 O' Reilly v. Alderson 37 Peyton, In re 52 Orraerod, In re 69 Phene v. Gillan . . 286 Orr V. Newton 117 Phillips, Doe v. .. 183 Orrett v. Corser . . 24, 79 ■ — V. Phillips .. 116 Oswin, Midland Company i . 219 Phipps, Holford v... 266 Overton v. Bannister 138 Pickering v. Pickering Piety V. Stace •• 135 96 P. Pink V. De Thuisey 83 Pinkett, Murray v. . . liV, 286, Packwood v. Maddison 273 287 Paddon v. Richardson.. 11 6, 120 Piper, Cradock ». . . 102 Page V. Adam 204. Playters v. Abbott . . 224 V. Cooper . . 1S3 Plyer, In re ,. 49 Palairet u. Carew . . 35 , 266 Pocock, Drayson v. , , 62 Palmer, Carter v. .. 210 — • v. Reddington 96, 120, 6 57 270 228 281 276 Parby, In re Poole V. Pass Parker, Stanes 1). .. 104 Pooley V. Quilter . , 95 211 Parkinson, Ames ». .. 118, 133 Porter, In re 58, 59 Parry, Wilkinson v. 22 Powell u. Evans , , 117 Pass, Poole v. . . 228 , 276 V. Matthews . . . , 49 Passingham v. Sherborn . . 210 Williams v. . . , , 99 Paterson y. Paterson .. 55,65 Powles, Jones v. . . . . 22 S Powys V. Blagrave 185 Pattinson, In re . . 69 Pratt K. Jenner . . 145 Pawlett, Ex parte .. 128 Prendergast v. Prendergast 83, Payne v. Collier . . 120 269 V. Little 270 Prescott, In re , , 61 Peacock, Forbes v. 204 Price, Grove u. , , 115 Peake, Edmonds v. 77 Priddon, Miller w. , . , , 33 Peafce v. Pearce . . 28 Pride v. Fooks 74, 279 Pearson, Att.-Gen. V. 39 Priestman v, Tindall .. 272 Peart, Re 180 Primrose, Re 269 Peat V. Crane 121 Prince v. Hine 139 Peatfield v. Benn . . 273 Pugh, Beddoes v. . . 109, 158 Pechel V. Fowler . . 189 Pulham, Firmin v. . . 279 Peel, Cockburn «... 126 Pulvertoft V. Pulvertoft 11 Pell«. De Winton.. 203 Purcell V. Kelly . , 212 Pemberton v. M'Gill 147 Pye, Ex parte , , 9 Penfold V. Boucher 266 Pennell v. Deffell . . 80 Q. Penny v. Avison . . 98 Perkins, Biscoe «... 188 Quayle, Cocker v. . . 147 Perry v. Knott 90 Quilter, Pooley v. . . 95 211 TABLE OF CASES. R. Raby V. Ridehalgh Raikes v. Raikes . . Randall, In re V, Errington Raphael v. Boehm Rashley v. Masters Read, Baker v. Reade, Roe v. V. Sparkes . . Reay, Middleton i'. Reddington, Pocock v. PAGE 91, 127 .. 38 .. 52 .. 153 210, 212 96, 99 .. 276 .. 212 .. 183 .. 271 .. 84 96, 120, 270, 281 ..342 ..342 Reg. V. Fletcher V. Hassall Rehden v. Wesley . . . . 74 Reid V. Reid . . . . 33 Reilly, Lockharti). .. 15,131 Remnant )). Hood .. .. 271 Renton, Clayton v, . . 8 Rhodes, Howard t). .. 372 Richard, In re . . . . 61 Richardson u. Jenkins .. 16 Paddon v. 116, 120 V. Richardson 234 Ridehalgh, Raby v. '91, 127, 148 Rigby, Champion v, Rigg, Wadham v, . . Rittson V. Stordy . . Roberts v. Ball V. Tunstall Robertson v. Armstrong Jenkins v. Robinson, Cochrane v. — Devaynes v. 212, 282 ,. Ill .. 108 .. 275 .. 212 .. 74 .. 16 .. 221 90, 189, 193 .. 204 .. 100 .. 99, J). Lowater V. Pett . . V. Robinson 117, 122, 131, 133 ..36 ..211 Rochester, Att.-Gen. v. • ■ 246 Rocke D.Hart .. 96,280 Roe, Collard v 66 Doe d. Dupleix v. .. 30 Roche, In re V. O'Brien PAGE Roe V. Reade . . ..183 Rogers, Albermarle v. . • 185 Rolfe, Chester u; .. ..138 Romayne, In re .. •• 210 Ross, Forbes v, . . . . 121 In re .. .. 180 Rossiter v. Trafalgar Co. . . 190 Routh D. Howell .. ..78 Rowland, Clegg t'. . . . . 156 Rowley D. Adams .. 51,220 V. Unwin . . . • 147 Rowton, Stones ». .. 34 Royal, Morse i). .. 211,216 Russell, In re .. .. 53 J/. Jackson.. .. 235 Ryan, Ford 11. .. 119,206 Rye, In re .. .. .. 172 S. Sabin «. Heape .. .. 204 Sadd, In re .. .. 264 Sale, Westhead v 67 Saltmarsh v. Barrett 100, 145 Salway v. Salway . . . . 80 Sanderson v. Walker 279, 283 Sandford, Keech v. 93, 224 Sands v. Nugee . . . . 32 Sandys, Warburton v. . . 21 Sarell, Colman v 270 Savage, Ardill v. .. , . 45 Boursetjj 22 Brown u. . . . . 157 Saxon Assur. Co., Re . . 152 Scales V. Maude . . 9,10 Scanlan, Fitzgibbon v. . . 226 Schofield, In re .. ..68 Scott, Dimes v, . . . • 135 !). Surman .. ..24 Scottish A. Society w. Fuller 354 Sebright, Carter v. . . 265 Selby, May v 90 Seton, In re .. .. 52 Sewell, Stickneyw. .. 120, 127 Shaftesbury v. Marlborough 223, 224 M^ebb V. . . 94 TABLE or CASES. PAGE Shakeshaft, Ex parte . . 89 Sharp V. Sharp ., .. 33 Sharpe, In re .. ..164! Shaw «. Borrer .. .. 204 ». Neale .. ..286 ■ Sisson !). ,. ..139 !). Turbett .. ..100 Sheard, Sykes v 83 Shelmerdine, In re . . 58 Shepherd ». Mouls . . 133 Sherborne, Passingham J)... 210 ■ Townley v. 58, 212 Sherwood, Re .. ..103 Shine K.Gough .. ..183 Shipway, Perry v. 81, 249, 253 Shore, Walker ti 191 Siddall, Life Association v. 23 Simeon, Annesley v. . • 184 Simmonds, Palmer v. . . Simpson, In re .. .. 260 Sisson 7j. Shaw .. .. 139 Sladden, Marshall v. . . 272 Slim B. Croucher .. .. 157 Sloane ?). Cadogan . . .. 10 Sloper, In re .. ..61 Small V. King .. ..107 Smedley ». Varley .. 217 Smith V. Bolden .. ..266 D. Cherrill .. .. 11 V. Dresser . . . . 264 Eaton V 20 V. Matthews . . 5 V. Smith . . 49, 70, 221 Wheeler ». .. 234 Smyth, In re . . 54, 62 V. Smyth .. ..64 Sneesby K. Thorne .. 191 Sneyd, Kilbee K. .. 73,81 Somes, Docker v. ,. .. 99 Sowarsby ». Lacey.. .. 206 Sparkes, Reade D. .. .. 271 Spencer, Doe v. .. ..195 Spiller, Re 263 Spirett V. Willows . . 144 Spittle, HancoxD. .. .. 56 Spofforth, Haldenby D. .. 193 Springett II, Dashwood .. 100 PAGE Spurling, Davis v. . . .. 81 St. Cross Hospital, Att.- Gen. «. .. .. 246 St. John's Hospital, Att.- Gen. «. .. .. 257 Stace, Piety v. .. 96 Stacey v. Elph 17, 18, 19, 211 Stafford!). Stafford.. .. 149 Stahlschmidtr. Lett .. 285 Stamford (Mayor of) , Att.- Gen. V. . . . • .. 282 Stanes v. Parker .. Stannard, Angier v. Stephens v. Hotham Morgan v. Stewart, Bowles v. Re.. .. 104 143, 228, 229, 276 .. 199 .. 110 Stickney v. Sewell Stiles V. Guy Stock, Ex parte Stokes, Brice v. Stone V. Theed Stones V. Rowton Stordy, Rittson v. Story V. Gape .. Strange v. Fooks . . Strathmore, Bowes v. Stretton v. Ashmall Strong V. Strong Stroughill V. Anstey Stuart V, Stuart Stubbs V. S argon . . Sturgis V Champneys Sugden v. Crosland Surman, Scott v. .. Sutton, Governors, &c, Swan, In re . . Swire, Johnson v. Swirles, Brewer v. .. Sykes V. Sheard Wrigley, v. . . Symonds, Walker v. Taaffe, In re .. 219 120,127 15, 88, 115 .. 171 85, 86,147 .. 224 .. 34 .. 108 38,89,112 .. 152 186 130 90 205 128 7 143 94 24 258 127, 144, 161,274 29 147 83 204 1,151 180 xl TABLE OF CASES. Tabrum, Taylor ti. Tait V. Lathbury . . Talbot V. Marshfield Tarleton v. Hornby Tate V. Williamson Taunton, Adams ». Taylor, Gaunt v. . . i;. Glanville V. Tabrum . . Tebbs V. Carpenter , Walgrave v. Teenery, Hill v. Telford, Johnson v. Tempest, In re Thackwell, Moggeridge Theed, Stone v. Thexton, Harrison v. Thirtle v. Vaughan Thomas v. Walker Thompson v. Finch 2 Thorndike v. Hunt Thome, Sneesby v. Thornton, Devey u. 113 Re Thorpe v. Thorpe , , Tickell, Townson v. Tidd V. Lister Tillstone, In re Tindall, Priestman v. Titley v. Wolstenholme Todd V. Wilson . . Tolferry, Dagley v. Toone, Watson v, , . Townend v, Townend Townley v. Bond . . ■ V. Sherborne Townsend, Travers v. Townson v. Tickell Tracy, Drummond v. Trafford v. Boehra . . Trail, Gordon v. Travers v. Townsend Trecothick, Coles v. Tredennick, Dunbar v. PAGE 1 192 281 , , 191 278 , , 272 216,217 1 . , 20 ,. 271 228 281 192 281 117 279 235 , , 141 267 41,42 i V. . 233 ,. 224 ., 118 , . 24 , , 70 5,73 ,79, 88 110 . . 22 191 229,273, 1 276 57, 79 1 170 174 18 186 ,, 172 272 . , 232 ., 104 , , 138 214 98, 118 223 85, 212 .. 281 18 12 122 , , 185 281 216211, 1 216 •■ 214 PAGE Tredennick, Nesbitt v. .. 227 Trevelyan v. Charter 212, 216 Trower, In re .. 176 Trutch V. Lamprell . . 73,75 Tryon, In re .. 266 Tunstall, In re 33, 59 Roberts v. .. 212 Turbett, Shaw ti. . . .. 100 Turner a. Burkinshaw .. 100 .. 73 Turnlev, In re .. 274 Tyler, In re .. 58 U. Uniacke, Re .. 18 Unwin, Rowley v. .. .. 147 Upfull, In re .. 170 Urch V. Walker . . 15,19 V. Varley, Smedley v. . 217 Vaughan, Thirtle v. . 24 Vaughton v. Noble . 94 Viall, Re .. . 269 Villiers, White I). .. . 198 Vincent v. Godson. . . 15 Viney J). Chaplin .. . 200 Vivian, Att.-Gen. y. . 246 Voyle V. Hughes . . . 10 W. Wade, Beckford K. .. 92 ■ Cole«. 20,62,82,84 Wadham w. Rigg .. ..Ill Wadkin, Barrow w. .. 108 Wakeford, Greenwood v. 45, 272 .. 235 .. 207 .. 80 .. 230 279,283 .. 191 .. 86 Walgrave ti. Tebbs Walker, Campbell v. ■ — Fletcher u. Macdonald v. Sanderson v. V. Shore . . u. Symonds TABLE OF CASES. xli Walker, Thomas v. Urch V. v. Wetherell V. "Woodward PAGE . 70 15,19 . 139 . 96 . 108 138,150,212 . 99 . 21 . 15 Wallis, Onslow v. Walls, Burrows v, Walrond v. Walrond Warburton v, Sandys Ward V. Butler Waring, In re 163, 168, 181 r. Waring.. .. 131 Warner, Newman v. Warren, Daniel v. , , Warter v. Anderson Waters, Chambers v. Watson V. Toone .. Watte, Aspland v. . . Watts, Eaton v. V. Girdlestone In re Mortimer v. Way's Trust Webb V. Shaftesbury . . V. Webb .. •• Webster, Le Hunt v, Wedderburn v. Wedderburn .. 63 .. 135 .. 265 .. 211 .. 214 .. 152 .. 6 .. 133 35, 49, 70 .. 83 .. 10 .. 94 .. 271 .. 35 99, 153 106 32 36 206 286 Weiss V. Dill Welch, In re . . Welford, Mesnard v. . Welland, Balfour v. Wellesley, Mornington v.. Wells V. Malbon . . 145, 179, 274 Wesley, Rehden v. ..74 West, Gotham i» 139 Goodeu 170 Westbrook, Aldridge J). .. 271 Westhead v. Sale . . . . 67 Westley v. Clarke . . . . 86 Weston I). Filer . . . . 56 Lander t). .. .. 118 Westwood, Hillman v. . . 32 Wetherell D. Langston .. 20 Vi^alkerB. .. 139 Whalley, Bleazard ». .. 186 Wheate, Burgess «. Wheeler v. Smith V. 12, 22, 108 .. 234 121, Whelpdale, Huddlestone v. Whichcote v. Lawrence Whicker I). Hume White V. Baugh .. — ■ D. Cuddon . . ■ M'Donnell ». V.Jackson.. V. Villiers . . • • V. White Whittle »). Henning Wiglesworth v, Wiglesworth Wilcocks V. Hannyngton .. Wilding D. Bolder .. Wiles V. Cooper V. Gresham Wilkes, In re Wilkins v. Fry — —;- V. Hogg . . Wilkinson v. Berwick V. Malin V. Parry «.. Wilkinson Wilks V. Groom Willett V. Blanford Williams, In re V. Nixon V. Powell Williamson, Tate v. Darke u. .. Willis 8.Hiscox229, 266, 27 6,280 V. Kibble ., ..103 Willoughby v. Willoughby . 22 Willows, Spirett K. ., 144 Wilson, Att. -Gen. «. .. 272 D.Bennett.. 230,232 Todd V 104 Wiltshire, Doran u. .. 206 138 25 102 144 15 36 232 230 66 PAGE 22 213 242 81 191 21 279 198 224 144 73 10 14 271 186 . 83 . 189 . 73 . 78 . 81 . 22 . 106 49,51 99 161, 173 74,77 99 216,217 285 Winchelsea v. Norcliffe Windsor (Dean of), Att.- Gen. V. ——■ • Lincoln V. Winter, Bagshaw f . Wise V. Wise Withington v. Withington . Wolstenholme, Titley u. .. Wood, Ashton v. • . V. Beetlestone xlii TABLE OF CASES. Wood, Gomley v. •• . . 266 In re .. ..48 Woodburne, In re , . 164, 179, 181,274 Woodward, Walker v. ..96 Woolley, Baynard v. 90, 91, 149, 272 Worrall v. Harford . . 264 Wren v. Kirton 78, 79, 209 Wright 1). Atkins . . . . 6 Bowra u. . . . . 56 V. Chard .. ..148 In re .. 154,161, 167, 176, 286 Lincoln «... 75,89 V. West .. ..181 PAGE Wrigley K. Sykes .. ..204 Wyche, In re . . . . 104 Wylley, In re . . . . 274 Wynch t). Grant .. .. 16 Wynne v. Humberston . . 184 Wyse, In re . . . . 62 Wyville, Att.-Gen.D. .. 272 Y. Yorkw. Brown .. ..266 York Buildings' Company v. Mackenzie .. .. 214 Young, Fearns B. .. 106,270 Lee V 83 ( xliii ) ADDENDA. Page 16, note (/s), refer to — Isaacson v. Harmood, L. E. 3 Ch. App. 225. „ 49, note (s), refer to — Gunson v. Simpson, L. E. 5 Eq. 332. „ 60, — In Musherry t. Skeffington (May, 1868), the House of Lords reversed a decree removing a trustee who was able and wiUiug to remain in the trust. „ 92, refer to— Brittlehanlt, t. Goodwin, L. E. 5 Eq. 545. „ 98 and 107, notes, as to rate of interest in Ireland, refer to — the new Order, see p. 358. „ 115, the word "not,'' at the end of line 9, should be struek out. Grayhvrn v. Glarkson affirmed on appeal, W. N. 1868, p. 132. „ 142, omit — Cressroell v. Den-ell : it rightly appears on p. 147. „ 144, note(/) — the rule established In re Suggitt's trusts, L. E. 3 Ch. App. 215. „ 157, — Lloyd t. Banlts reversed on appeal, W. N. 1868, p. 166, ,, 164, refer to— 1« re WeM, L. E. 2 Eq. 456. ,, 235,— Jones v. Badley reversed on appeal ; but the rule as stated was confirmed, L. E. 3 Ch. App. 362. „ 11%, — Talbot V. Marslifield varied on appeal, by not fixing the trustees with the plaintiff's costs subsequent to the hearing, W. N. 1868, p. 167. THE OFFICE OF TEU8TEB. CHAPTER I. INTKODTJCTORT. — OF THE CREATION AND NATURE OF TRUSTS. — ACCEPTANCE OF TRUST. — DISCLAIMER. — DEVOLUTION OF TRUST. The Law relating to Trustees, like almost all Onginof trusts under other branches of our law possessed of any scientific Roman law. interest, has its origin in the Eoman Law. And, like many of our own most useful laws, it began with an evasion of, or attempt to remedy the defects in, a pre-existing jurisprudence. In order that his son under disability might enjoy the property, which might otherwise pass into other hands, the Eoman testator made it over to a heres-fiduciarius [trustee], who was to be the legal owner, but was to be accountable to the fidei-commissarius [beneficiary or cestuique trust]. This relation was not recognized before many frauds had been committed ; and Augustus at length recognized fidei-commissa [trusts] ; and appointed a ^ INTRODIJCTOKY. prator-commissarius, whose duty it was to enforce the claims of beneficiaries. Definition. A trust, in the modern acceptance of the term, has been defined as " an obligation upon a person arising out of a confidence reposed in him, to apply property faithfully, and according to such confidence" (a). This definition, although more clear and concise than others that have been given, must be narrowed before it becomes applicable to a system of law which does not permit Trusts to be controlled by the ordinary courts of justice. The definition, to be complete, must refer to the remedy open to the person bene- ficially entitled [the beneficiary or cestuique trust'\ against the trustee or person who is at law looked upon as the owner of the trust property. The " obli- gation " imposed on the conscience of a trustee is one which cannot, in this country, be enforced without the aid of a Court of Equity. A trustee may there' fore be described as a person who is under an obli- gation, enforcible in equity, to apply property for the benefit of another. The law relating to the duties and liabilities of trustees is not found on the pages of the statute book, nor has it ever been expounded by the Judges of the Law Courts. It is chiefly to be collected from various decisions of Judges of the Court of Chancery. A trust is, in the language of the old law writers, " the creature of Equity ;" and, although unrecognized by (a) Stair, Instit. Laws of Scotland, B. i, tit. 6. INTEODUCTOET. o the legislature except in a few recent instances, trusts have become the bases of all family arrangements respecting real or personal property throughout the kingdom. There are various modes of classifying trusts, ciassifica- •' ° tion of trusts. They may, as regards their nature, be divided into — A" '" ">«'' (1) Passive Trusts. — As where property is vested in one person simply for the benefit of another. The duties of the trustee may, in this case, be summed up in a sentence. He is bound to convey or make over to the cestuique trust, or otherwise to dispose of the trust property as he may be directed by him. (2) Active Teusts. — "Where property is vested in the trustee for certain specified pur- poses. He is here charged with the performance of such active duties as may be expressed in the instrument creating the trust, or may, according ) to the rules of Equity, be thrown L upon him in consequence of his ac- « ceptance of it. Trusts may, as regards their object, be divided As to their object. mto — (1) Public Teusts. — Created for the benefit of the public, or of some section of the public: here the individuals to be benefited are not specified by the b2 CREATION. donor, and the duration of the trust remains uncontrolled by the law. These are more commonly styled " Charitable Trusts." (2) Private Trusts. — Or those generally created by settlement, will, or other instrument for family purposes. The author of the trust is here supposed to take a personal interest in its objects ; and the duration of such trusts is in general limited by the rules of law, as well as by enactment of the legis- lature ( h). The Eules and Maxims of Equity to be observed by trustees in the performance of their duties as such, will, for the most part, apply to all cases, however the trusteeship arise, and whatever may be its object. parol. Creation of ALTHOUGH it is usual to find the office of trustee created, and its duties pointed out by an instrument, prepared with more or less formality, it must not be —may be by forgotten that a trust may be legally created by word of mouth, nor will the Courts of Equity omit to (S) Trusts are again frequently divided into snch as arise by express declaration, and such as arise by operation or eon^ struction of law. Trusteeship in practice seldom arises without express declaration ; and the rules relating to trusts othermise created do not call for mention in a work professedly dealing with the Office of Trustee, as distinguished from the subject of Trusts. HOW CREATED. O enforce its fulfilment by reason of any informality in its origin. It is, indeed, required by the Statute of |'^'"'^ "'' Frauds (c) that " every trust of lands, tenements, and hereditaments shall be manifested and proved by some writing, signed by the party who is by law entitled to declare such trusts, or by his last will in writing, or else they shall be utterly void and of none effect." This enactment does not require that such trusts should be created by writing, but that they should be evidenced by writing ; and " it must be proved in toto not only that there was a trust, but what it was " [d). This has been held to extend to copyhold property, as well as to chattels real (e). Trusts of all other descriptions of property may still be created hj parol; but "extremely strong evidence, of its terms " wiU be required before the Court will carry out a trust created by oral expression (f). It will be observed that " some writing " only is required by the statute, so that however desirable it may be to evidence a trust by deed, that formality is in no case essential. Trusteeship practically arises in very few in- Trusteeship stances otherwise than under the provisions of an created by deed or will. (c) 29 Car. 2, cap. 3, sec. 7. ((?) Per Lord Alvanley in JForster t. Hale, 3 Ves. 696 : and see Smith v. Matthews, 3 De G. T. & J. 139 ; 9 W. E. Gii. (e) Chattels personal are not within this enactment. M'Fadden v. Jenhjns, 1 Ha, 461; 1 Ph. 157: ffrant v. Grant, 34 Beav. 623. (/) Wood, V.-C, in Paterson v. Murphy, 11 Ha. 88, 91 ; and see cases cited in Drury Rep. t. Napier, 608, et seq. 6 EEQUISITES OP TRUST. agreement, a deed, or a will, so framed as to satisfy at all events the three requirements for the creation of Requisites, every valid trust — viz., suflBcient words to raise it, a definite subject, and a certain or ascertained ob- ject (g'). There is little probability of any of these requisites being overlooked in any document prepared by a legal adviser. With regard to wUls, these instruments being frequently prepared in a hasty and informal manner by the testators themselves, it happens sometimes that one or other of the requisites is found to be omitted in the preparation of the in- strument. , (1) Words occurring in a will which are uncertain as to the obligation intended to be imposed on the trustee, and instead of conveying a clear wish or direction, merely expressing a vague expectation or a wish which the Court cannot give effect to, may fail to create a trust (A). (2) The subject-matter may be so indistinctly pointed out, as that the intended trust may be impos- sible of execution (i). (3) The object of the trust may not be indicated with sufficient clearness. Property devised in this {g) Cruwys t. Colman, 9 Ves. 323 : Wright v. Atkyns, 1 T. & E. 143 : see Palmer v. Simmonds, 2 Brew. 225 : Fooo v. Fox, 27 Beav. 301 : JSusMsson y. Bridge, 4 De G. & Sm. 245 : Story, Eq. Jur. § 964 (2nd ed.). (A) GroA'es v. Graves, 13 Ir. Ch. Rep. 182 : see Lefroy v. Flood, 4 Ir. Ch. Rep. 1 : Eaton v. Watts, 16 L. T. Rep. N. S. 311. (i) Malim v. KeigKley, 2 Ves. 333, 529 : Knight v. Knight, 11 CI. & F. 513. LEADING MAXIMS. manner is held to revert to the donor, and to form part of his undevised estate {k). A prudent trustee will not attempt to act in the administration of the trust while a reasonable doubt remains as to the intentions of the creator of the trust in either of the foregoing particulars. He will of course take adequate legal advice on the subject, as without that he cannot form any correct idea as to the proper interpretation to be given to the technical words made use of by the testator. If the result is still to leave doubt on the subject, a trustee cannot be advised to act without the protection of the Court of Chancery, which will undertake the solution of the difficulty, and in so doing of course afford him com- plete indemnity against all future dangers. This ready interposition in trust affairs arises from court of two fundamental maxims of the Court of Chancery — Iwiii cany trusts into VIZ., " That EVBET trust is to be fulfilled AC- execution. CORDING TO THE INTENTIONS OF ITS CREATOR," and ) " THAT NO TRUST SHALL BE PERMITTED TO FAIL FOE WANT OF A TRUSTEE." It matters not whether the trustee originally nominated refuse to act, or after acting for a time desire to resign his charge into the hands of the Court — in any and every case the Court will assume the execution of the trust ; and although it may discourage groundless applications of the trustee by exercising a discretion as to costs (Z), it (i) Stubis V. Sargon, 3 M. & C. 507: Story, Eq. Jur. § 979 a. (2nd ed.) : Green v. Marsden, 1 Drew. 646. (0 See Chapter X.—" Costs of Trustees." COURT OP CHAUCEKT. will never refuse to carry the trust itself intoi exe- cution (m). It need scarcely be added that in carrying out a trust the Court will adhere to all the principles of law regulating the disposition of property. Real property (for example) cannot be vested in trust for an alien, or for a coi'poration in contravention of the Mortmain Acts. Nor can trusts be made use of for the purpose of evading the rules against perpetuities, or of evading any other rule established in furtherance of the public interests, or based upon what is called " The Policy of the Law." In carrying out a trust a Court of Equity rarely enters into the question of whether it be founded on a valuable consideration or not. The question wiU be, whether the relation of trustee and cestuique trust has been perfectly established ? If the legal ownership of or power over the trust property be clearly existing in one person, and the beneficial interest as clearly vested in another, the Court will enforce the trust, though it be in its origin purely voluntary. If, on the other hand, either of these requisites be wanting, — if the legal transfer be not made, — or the trust be not fully declared— the rela- tionship of trustee and cestuique trust is not then considered as established so as to warrant the Court (m) Jurisdiction over trusts, where the suhjeet matter is under 500Z., is conferred on the County Courts. Stat. 28 & 29 Vict. c. 99, s. 1 : and this enactment applies to constructiye ti-usts, Clayton t. Renton, L. Rep. 4 Eq. 159. VOLUNTARY TEUST. in interfering. The declaration of a trust by the trustee is of course sufficient to prevent the trans- action from being regarded as merely executory, and will be for all purposes a sufficient declaration of trust {n). Where a trust is voluntary, or is created for no valuable consideration, and more particularly when unaccompanied by transfer, or change of possession, of the trust property, it is important for the trustee to be assured that the declaration of trust is complete. A mere agreement made, or intention expressed to create a trust, leaving something to be done to perfect the declaration of trust, will not be enforced (o). In a late case V.-C. Wood refused to enforce a trust because the intention of the parties was unsettled — " In such a case the test is simply this : whether^ there was a clear indication of a definite intention to part with the property in favour of the person named, or whether there remained something to be done by a (n) Exp. Pye, 18 Ves. 149 : Mdmards t. Jones, 1 M. & C. 264 : Meek t. Kettlemell, 1 Ha. 472. Where a sole trustee haying made away with certain trust funds, deposited a policy of insurance among his papers, together with a memorandum declaring that the policy was to he applied for the benefit of the cestmsque trusts; and afterwards the trustee (Sir J. D. Paul) became bankrupt, and the security was claimed by the assignees in bankruptcy ; Wood, V.-C, held that the trust was sufficiently declared by the memorandum, and directed that the policy should be handed over to the new trustees of the settlement. Me BanKheaA, 2 Kay & J. 560. (o) Scales v. MaucLe, 6 D. M. & G. 43 ; 1 Jur. N. S. 1147 : MUson V. Mlison, 6 Ves. 662. b5 lOf VOLTJNTAEY TRUST. subsequent act for the purpose of carrying out that intention" (jo). A trust, although voluntary in its origin, has always been regarded as perfectly created where there has been a legal transfer of the stock, &c. ; but it was doubted whether the Court would enforce a trust of this nature where a bond, or other property not capable of transfer at law, formed the subject of the trust. There is, however, reason to believe that no such distinction will prevail, and the tenor of the later decisions seems to be, that whatever the nature of the property may be, a trust once per- fectly declared will be enforced in equity (§■). An equitable owner of property, the legal estate of which is in a trustee, may undoubtedly assign his interest without consideration (r) ; and such gift will be valid and binding on him, even though no notice of the assignment be given to the trustee («). 27 Eiiz. V. i. A voluntary settlement of land, by way of trust, differs materially from a similar settlement of per- sonal property, inasmuch as it can be defeated, under (p) Fortes y. Forhes, 3 Jur. N. S. 1206 ; 6 W. K. 92. (j') KehemicTh v. Manning, 1 D. M. & G. 187 : Wilcoclis V. Hwimyngton, 5 Ir. Ch. Eep. 45 : Ch-ant v. Grant, 34 BeaT. 623. A dictwm in. Scales v. Maude, 6 D. M. & G. 51, that a declaration of trust in faTOur of a volunteer is inralid, is not re- garded as good law. Jones t. Loch, L. R. 1 Ch. App. 25. The cases are collected in the notes to Ellison v. Ellison, \ Le. Ca. Eq. (»■) Shane v. Cadogam, App. to Vend. & Pnrch. : Voyle v. Hughes, 2 Sm. & G. 18 : Jle Way's Trust, 2 De G. Jo. & S. 365. (i) Donaldson v. Donaldson, 1 Kay, 711. STATS, or ELIZ. ^^ Stat. 27 Eliz. c. 4, by a subsequent conveyance for value to a purchaser. Nor has the person in -whose favour the trust was created any remedy whatever, either against the estate or against the settlor (<). It is immaterial that the purchaser has notice of the voluntary settlement. Voluntary settlements either of real or personal i3 ehz u. 5. estate, unless made " on good consideration and bona fide" are also liable to be impeached by creditors, under stat. 13 Eliz. c. 5 ; but this statute will not affect deeds executed by solvent persons, and can only be taken advantage of by creditors who were such at the time of the execution of the settlement (m). All persons who may become owners of property ah owners may become trustees of that property, either by ope- own"s in ration of law, or by express declaration ; and the trust attaches to the property into whatever hands it may come by legal transfer or devolution. But al- though all persons capable of holding property in their own right are also capable of holding in trust for another, it by no means follows that careful dis- crimination in the choice of trustees is unnecessary. It may be well to consider, first, what classes of Who are ineligible, persons are not eligible for the office of trustee ; and afterwards, what persons ought to be selected. if) Pul'oertoft v. Pulvertoft, 18 Ves. 91, and cases there cited. See an elaborate note on these Acts 3 Davidson's Pr. (2nd ed.) 841. (w) Sarrach y.M'Culloeh, 3 Kay & J. 110: Freneh v. JBVenoh, 6 De Gr. M. & 6. 95, and cases there cited : and see Smith v. Cherrill, L. Eep. 4 Eq. 390. WHO ARE INELIGIBLE The Crown may perhaps be trustee for the subject; but no mode has been discovered of enforcing such a trust (x), and a petition of right (now regulated by Stat. 23 & 24 Vict. c. 34, Sir W. Bovill's Act) is the only course that could be suggested to the cestuique trust. A corporation may administer, and may be compelled to administer a trust (3/) ; but the licence of the Crown is necessary before it can hold real estate. The Bank of England or Ireland, in its character of accountant of the government funds, is not com- pellable to take notice of the trusts affecting any sum of stock. More than four names will not (by the rule of the bank) be placed together on the books of the bank, as holders of government stock ; this number is therefore the maximum number that can act as trustees of stock. When real estate forms the subject of the trust, care must be taken not to appoint an aZtew trustee ; there is no objection, however, to the nomination of an alien friend permanently resident here as a trustee of stock or other personal property. It is on many grounds, which it is unnecessary here to specify, inexpedient to appoint a married woman (z), or a person under age, as a trustee ; nor can the selection of an unmarried woman be recom- mended, as in case of her marrying, the concur- (iB) Bwrgess t. Wlieate, 1 Eden, 203. (y ) Att.- General t. Lichfield, 11 Beav. 130. («) Lalte T. De Lambert, i Ves. 595 : He Kaye, Law Eep. 1 Ch. App. 387 : and see BrwmmonA v. Tracy, 1 Joh. 608 ; 8 W. R. 207. As TRUSTEES. 13 rence of her husband may be required to give effect to certain assurances (a). The inconvenience of cases "where persons under legal incapacity are nominated, is less severely felt now that the Court of Chancery is endowed with an ample jurisdiction as to the substi- tution of new trustees in place of any who may be unfit to perform the duties incident to the office. StiU it is desirable, by nominating proper persons in the first instance, to avoid the expense of an application to the Court under the Trustee Acts. As property held in trust remains unaffected by the Bankrupts bankruptcy, and (it may be presumed) by the msol- vents, vency, of a trustee, there is, of course, no objection on these grounds to the nomination as trustee of any person who may have become bankrupt, or may have been discharged as an insolvent debtor (6). Reason will suggest that in the selection of trustees who should be appointed regard should be had to the onerous and responsible trustees. nature of the office, to the discretion frequently re- quired for its proper discharge, especially to the fact that a trustee ought to turn a deaf ear to all proposals for investing trust funds on those dubious securities which promise a high rate of interest, and, lastly, to (a) Brooh v. JBrooTt, 1 Beav. 531. There is, however, no rule against the appointment of unmarried women as trustees. Be Camphell, 31 Beav. 176. (J) When difficulties have resulted from bad management rather than from unavoidable misfortune, it is not to be supposed that recourse will be had to the individual who has so manifested his unfitness. Still it often happens thatJhe man who can con- duct the affairs of others creditably, mismanages his own. 14 WHO ABE ELIGIBLE. the disinterested eiforts required of a trustee for the fulfilment of his trust. The persons selected should therefore possess qualifications of age, character, and standing in society adequate for these purposes ; and not less than three persons answering to this descrip- tion should, if possible, be obtained. Near relatives, or persons having some pecuniary interest, should be avoided in the selection of trustees, if strangers can be induced to undertake the trust, as the exercise of an unbiassed judgment can rarely be expected from them (c). The Court is unwilling to appoint as trustees per- sons interested ; but as the difficulty of obtaining persons to act as trustees is increasingly great, the Court sometimes finds it necessary to sanction the appointment of trustees of whom it scarcely ap- proves (rf). Acceptance Trustees of settlements, although named as parties of trust deed, to the deed, very frequently omit to execute. One reason why their execution of the deed should always be procured is, that it affords the best evidence that By acting in the trust has been accepted. The acceptance of the the trust. , , i i i n -, i trust may, however, be shown by acts done by the trustee in the discharge of the duties of his office. (c) Eomilly, M.E., refused an application to appoint a near relative, observing that the worst breaches of trust were usually committed by relatives, who found themselves unable to resist the importunities of their cestuisque trust. Wilding v. Bolder, 21 Beav. 222. {d) Re M'CooTi, 2 Ir. Jur. K. S. 74 : Eiep. Glutton, 17 Jur. 988 : Re Giraud, 32 Beav. 385. ACCEPTANCE. 15 Trustees appointed by a will, for example, are con- sidered to have accepted the burden of the trusts on their taking out probate, or otherwise acting as exe- cutors of the will (e) ; trustees under a deed, when they receive or pay in the capacity of trustee moneys receivable or payable by virtue of the deed {f). Trustees who have, without objecting, been ap- pointed as such for a series of years, although they may not have signed the deed or acted in the trust, will be assumed to have accepted the trust ( g). But a trustee who expressly declines to act and has not executed cannot be fixed with the trust, merely because he has retained possession of the deed until some other person could be found to act (h). In one respect the execution or non-execution of Remedy ^ against the deed by the trustee may become of material con- estate of '' "^ ^ ^ trustee, sequence to the cestuique trust. This is in the event of a breach of trust being committed, and loss ac- cruing ; when the question frequently arises — what priority will the demand of the cestuique trust obtain in the administration of the legal assets of the trustee ? The claim in respect of a breach of trust amounts claim founded on per se to a simple contract debt only(j). Where, a breach of (e) Styles v. Guy, 1 Mac. & Gor. 431. (/) Wa/rd V. Bwtler, 2 MoU. 533 : TJrch v. Walher, 3 M. & C. 702. (^) Wise Y. Wise, 2 Jo. & Lat. 403. ( h) Evans t. John, 4 Bear. 35. (i) Lockliart v. Reilly, 1 De G. & J. 464 : Vincent v. Godson, 1 Sm. & Gif . 384. 16 COVENANT BY TRUSTEE. Acceptance of trust will not per se create a spe- cialty debt. however, the trustee has executed any deed con- taining a covenant that the trust property shall he applied in a particular manner, the relation of dehtor and creditor is then established between them under seal, and any demand arising from misappropri- ation or misapplication of the fund will, in accord- ance with the ordinary rules of law, amount to a specialty debt against the estate of the trustee (^). It is not sufficient to establish that a trustee has accepted the trust, by merely executing the trust deed, for he may execute the deed without entering into any legal covenant, and " there is no such thing as an equitable covenant as distinguished from a legal covenant" (Z). Thus where new trustees of a mar- riage settlement executed the deed by which they were appointed, but that deed contained no specific covenant by them for the performance of the trusts of the settlement (although the settled property was assigned to them on precisely the same trusts); and they afterwards committed a breach of trust by in- vesting on bad security, so that a considerable loss was sustained; the Court held that the loss amounted to a simple contract debt only {m). (A) Jenliins v. Hobertson, 1 Eq. Eep. 123 : see Richardson V. Jenkins, 1 Drew. 417. The Court also held in this case that the word " cOTenant " or " agree " is not necessary in a trust deed to constitute a specialty contract ; a " declaration " by the trustee that he would stand possessed on certain triwts, was held to he sufficient. J-A^f-uiuiA^rvx { l{-et^\^irri cCliJcA^ JiXf (?) Adey v. Arnold, 2 D. M. & G. 432— Lord St. Leonards. (to) Wynoh v. Grant, 2 Eq. Kep. 1135 ; 3 Drew. 312. The INTEBPEEENCE IN TRUST. 17 As any kind of interference in the management of interference ■' ° in trust the trust is prima facie evidence of the acceptance of primd/ade its burden by the trustee, the presumption is that a acceptance. person named as trustee interferes in that capacity and in no other. The onus prohandi will lie on him to show that he has done so from some other motive, and an ambiguous line of conduct will be discouraged by the Court (n). A trustee who, by executing the trust deed or Trust ac- •* ° . cepted can- otherwise, has accepted the office, is not at liberty to not be re- nounced. ■ withdraw from it (o). Nothing can absolve him from the performance of its duties except the decree or order of a court of competent jurisdiction, or the unanimous consent of his cestu'isque tmst, who must of course be of full age sui juris, and legally capable of consenting. If the instrument creating the trust contain any proviso authorizing the retirement of one trustee and the substitution of another, a third method is open to him of being released from the trust ( p). A person who is nominated to the office of trustee, Disclaimer but has not accepted the trust, and is desirous of avoiding its troubles and responsibilities, is at liberty to renounce, and this notwithstanding any promise that he may have made, prior to the creation of the lands of a debtor are made liable to Ms simple contract debts by Stat. 3 & 4 Wm. i, c. 104. (n) Stacey v. Mpli, 1 M. & K. 195 : Conyngham v. ConynghoTii, 1 Ves. 522 : Lomry t. Fulton, 9 Sim. 115. (0) Mcmson v. Baillie, 2 Macq. H. L. (Jay,§ti. (^) See Chapters II. & III. " Appointment of New Trus- tees." 18 DISCLAIMEK trust, for its fulfilment (§■). The refusal to accept a trust, or DiscLAiMEE, may be made at any time, but it sbould be made at the earliest opportunity. A person nominated as trustee, but who has never acted, may appear in court and there disclaim the trust without executing any deed(»'). But if a long in- terval has been allowed to elapse, there is danger lest the Court should presume acceptance of the trust' from that circumstance («). A disclaimer should be in writing. No special form of disclaimer is required by law, and a trust of copyhold, chattel, or personal property may be legally disclaimed by word of mouth; with regard to freehold estate, a disclaimer not evi- denced by deed might, perhaps, be held insufficient {£). But whatever be the subject-matter of the trust, "it " is most prudent that a deed of disclaimer should be " executed by a person named trustee, who refuses to " accept the trust, because such deed is clear evidence " of the disclaimer, and admits of no ambiguity (m). It is now believed that a deed of disclaimer, which also purports to be a conveyance of the trust estate, does not necessarily imply any former acceptance of the trust ; still a trustee cannot be advised to execute any instrument in the nature of a conveyance, as the subject is not free from doubt, and there is some (2') Boyle v. Blake, 2 Sch. & L. 239, per Lord EedesdaJe. (r) Foster t. Damier, 1 Dr. & Sm. 172; 8 W. R. 6*6. («) Re JJniaoke, IJo. & L. 1 : Wise v. Wise, 2 Jo. & L. 412. (t) Tonnson v. Tiokell, 3 B. & A. 31. See 2 Moll. 253. (m) Per Sir J. Leach, M.R., in Stacey y. Mph, 1 M. & K. 199. SHOULD BE BY DEED. 19 danger lest such a deed, unless worded -with extreme caution, might have the effect of fixing the trustee with, instead of relieving him from, the trust {v). The form hest adapted for the purpose is that of ^°™ "/^j^ a deed-poll, recitLug the creation of the trust, and ciaimer. that it has never been accepted by the trustee, and ending with a complete renunciation and disclaimer of the trust property and the trusts (w). After executing a disclaimer, the trustee is in the Effect of . T.1 J? disclaimer. position of a stranger to the trust, and is capable oi acting as solicitor, agent, or otherwise (x), and may become the purchaser of the trust property, as any other indifferent person may {y). The effect of a disclaimer {z) by one trustee is to vest all powers and authorities in the continuing trustees, who may sell or make title to a purchaser (or proceed against him for specific performance) as (») UrcTi V. WalTter, 3 M. & C. 702, and cases there re- ferred to. (to) One of the advantages attending a proper disclaimer is, that a trustee who has never acted, and has executed such a deed, will not be made a party to a suit instituted in respect of the trust property. Where a trustee, for the first time, disclaims Try his answer, and the bill is dismissed against him, his costs mil be allowed only as between party a/nd pa/rty. Norwaiy v. NoTWOAj, 2 M. & K. 278. (») Montgomery v. Johnson, 11 Ir. Eq. Eep. 480. (y) Stacey v. Mph, 1 My. & K. 195. (z) A deed of disclaimer by trustees named as protectors of a settlement under the Fines and Recoveries Act, should be en- rolled in Chancery. 3 & 4 "Wm. 4, c. 74, s. 32. 20 STJRTIVOKSHIP. thougli they alone had been originally nominated to the trust (z). The effect in legal proceedings will be otherwise, as trustees entering into a joint contract at law cannot sever, and proceedings must be taken on a contract by all the parties with whom it is made {a). A form of Deed of Disclaimer suitable for ordinary cases will be found in the Appendix. Trust de- Such trustees as, having been duly appointed, accept volves upon . .... surviving the trust, and the survivors of them, will continue to trustee, with all powers hold the trust estate as joint tenants in law, and in except "bare authorities." general all powers annexed to the trust may be exer- cised by them (6). One class of powers cannot, how- ever, be always exercised by the legal owners of the trust estate. There are powers which are considered as confidences of a strictly personal nature, and for their exercise the concurrence of all the persons originally nominated may be required (c). In the absence of any expression authorizing their exercise by less than the original number, the power will cease to exist when the original number is dimi- nished. With this exception, which does not em- brace ordinary trusts for sale or mortgage, the trust (z) Adams v. Taunton, 5 Mad. 435 : Bayly v. Oamming, 10 Ii-. Eq. Eep. 410. (a) Wetherell v. Langston, 1 Exch. Eep. 634. (J) Hudson T. Hudson, Ca. t. Talb. 129 : Eaton t. Smith, 2 Beav. 236 : see 1 S. & St. 165. (c) Cole V. Wade, 16 Ves. 44 : Byam v. Byam, 19 Beav. 58 ; 1 Sug. Bow. 150, 7tli ed. ; Brassey t. Chalmers, 16 Beav. 231. LEGAL INTEEEST OF TEUSTEE. 21 estate, with all its incidents, will, on the death of a trustee, devolve upon the survivors {d) ; and ulti- mately (unless a new appointment be made) upon the legal representatives of the last survivor, according to the nature and quality of the trust estate. As to the extent of the legal interest taken by the Legal inte- rest taken by trustee, the following are the chief rules which have the trustee, prevailed. (1) Wherever a trust is created, a legal estate sufficient for the execution of the trust shall, if possible, be implied. (2) The legal estate limited to the trustee shall not be carried farther than the com- plete execution of the trust necessarily requires (e). The Wills Act{f) declares (as to all real estate ex- cept a presentation to a Church), that where real estate is devised to a trustee, such devise shall be taken to pass the fee simple or other whole interest in the estate unless a definite term of years or an estate of freehold shall be given expressly or by implication. Also (by the next section), where real estate is de- vised to a trustee without express limitation of the estate to be taken by him, and the beneficial interest shall not be given to any person for life, or, if so (^d) Wariurton v. Sandys, 14 Sim. 622 : Lane t. Dehenham, 11 Ha. 188. (e) Lewin on Trusts, Sth ed. 176 ; Tudor, Le. Ca. Conv. 2nd ed. 292, 299, and cases there cited. It would appear from a late case in the Chancery Appeal Court that where the court is of opinion that an estate is Tested in trustees, yet if an opposite view has been long acted on, a title from the trustees will not be forced on a purchaser. Collier v. M'Bean, L. E. 1 Ch. Ap. 81. (/) 1 Vict. u. 26, ss. 30, 31 : see 2 Jarm. on Wills, 263. 22 DEVOLUTION. On convey- ance of trust estate, the trust will attach, in all cases except one. Eifect of de- vise by trustee. given, the trust continues after the life, the devise shall be taken to vest in the trustee the fee simple or other whole interest, and not an estate determinable when the purposes of the trusts shall be satisfied. The legal estate of trust property is not now liable to forfeiture or escheat (ff). The trust estate and the office of trustee may, under some circumstances, be separated. A trustee who, having accepted the trust, conveys away the trust estate, divests himself of the latter, though not of the former (A). The trust would stiU attach to the estate, into whatever hands it might pass, with one very important exception. An innocent purchaser, for valuable consideration, and without notice of the trust, taking a conveyance of the legal estate from the trustee, will hold it, both at law and in equity, against all the world (i). The trust estate may not only be conveyed by a sole trustee during his lifetime, but may be devised (g) 13 & 14 Vict. cap. 60, ss. 14, 46. (A) WiVtinson v. Parry, 4 Kuss. 272 : Brayirooke t. Insldp, 8 Ves. 417. (i) Millard's Case, 2 Free. 43 : Burgess v. Wlieate, 1 Eden, 195 : Willon-ghby v. WUloughhj, 1 T. R. 771 : Jones t. Pomles, 3 My. & K. 581 : ThomdiTte T. Himt, 3 De G. & J. 663 : BoddiS r. Hills, 2 Hem. & Mill. 424. The notice may be either actual or constructive. Bourset v. Savage, L. E. 2 Eq. 134. And the principles of the general law of notice, as affecting purchasers, apply to this case. A lis pendens, regis- tered in a suit affecting the trust estate, although it does not per se constitute notice, will render a purchaser bound by any decree made in the suit. BETISE BY TRUSTEE. 23 by his will. The devisee will take subject to aU the rights of the cestuique trust, in the same way as though a voluntary conveyance had been executed to him during the testator's lifetime. Notwithstanding some uncertainty formerly existing on the point, it was by Lord Eldon finally settled that a general Effect of a . .,, «. general devise devise of all a testator s estates will sumce to pass of trustee's 1 . IIP estates. estates held in trust, unless it can be collected from expressions in the will, or purposes or objects of the testator, that he did not mean them to pass (Jt). Any expressions manifesting an intention of excluding trust estates from the devise, and of confining it to the beneficial interest — as, for instance, a devise charged with payment of debts — will prevent this operation of the general words used. Where a tes- tator devised "all his real estates, whatsoever and wheresoever," but charged with a legacy, it was held that the charge indicated an intention of not including trust estates, and that trust estates did not pass under the devise (I). In another case, a clause of accruer among the devisees, in respect of the shares of such as should die under twenty-one, was (Ji) BraylroTie v. InsUp, 8 Ves. 417; Jarm. Wills, 2nd ed. 593. (J,) Hope T. lAddell, 21 Bear. 183 : Life Association of Scotland v. Siddall, 3 D. F. & J. 58. The decisions on the subject of the aiility of a devisee of trust estates to exercise powers originally confided to his testator, render that question one of extreme difficulty. The following cases may be referred to as containing the latest expositions of the law on this point j In re Bwtt, 1 Drew. 319 : Sail v. May, 3 Kay & J. 585. 24 BANKRUPTCY. held to manifest an intention of the testator that the beneficial interest alone should pass (m). And a similar intention was held to be manifested where the devise was to a class, the individuals of which were not ascertained (n). ^^"'"■"P'^y Trust property of all descriptions will remain un- affected by the bankruptcy of the trustee, " for nothing vests in the assignees, even at law, but such real and personal estate of the bankrupt in which he had the equitable as well as legal interest, and which is to be applied to the payment of the bankrupt's debts (o)." By parity of reasoning, it would seem that the insol- vency of the trustee does not affect his legal owner- ship of the trust property. In the event of the bankruptcy of a trustee, the Court is enabled (by stat. 12 & 13 Vict. c. 106, s. 130), on the petition of any person immediately interested, to order the assignees and other persons to convey, assign, or transfer the trust property to such person or persons as the Court may appoint, upon the former trusts. The bankruptcy of a trustee does not absolve him from his duty as such. If the trust estate be creditor of his private estate, he must prove the demand, or take care that some other person makes proof of it ; and if he neglect this, he will remain liable for the loss, notwithstanding his certificate (p). If proof be (m) Thirtle t. Vaughan, 24 L. T. Eep. 5— V.-C. "Wood. («,) Re Mnney's Estate, 3 GifE. 465. ((») Scott T. Hurman, Willes, 402, per Lord C. J. WiUes. (^) Orrett v. Corser, 21 Beav. 52— M. E. BANKEUPTCT. properly made, the demand of the trust against the private estate of a bankrupt or insolvent wiU be duly barred by a certificate or discharge in due course of law(g'). The bankruptcy of a trustee will very probably lead to his being removed from the trust, if the matter comes before the Court ; although it would be too much to say that the Court always regards a bankrupt who has obtained his certificate as " unfit " to be a trustee (»•). 9 (2) Exp. Holt, 1 Deac. 248 : Thompson t. Mnoh, 22 Beav, 316 : on appeal, 8 D. M. & G. 560. (r) Be Bridgman, 1 Dr. & Sm. 164 ; 8 W. E. 598 : see Harris v. Harris, 9 W. R. 444. 25 ( 26 ) CHAPTEE II. OF THE APPOINTMENT OF NEW TRUSTEES UNDER A POWER. powerof The facilities afForded under the Trustee Acts, and appointing ' new trustees, more recently the provisions of Lord Cranworth's Act (23 & 24 Vict. c. 145), are such as to render the insertion in a will or settlement of a power for the appointment of new trustees, a less important pre- caution than formerly. It is still, however, usual to find such a power in instruments containing trusts Form of. likely to be of long duration. This clause usually provides that in case the trustees, or any of them, or any future trustee, shall happen to die, reside abroad, or be desirous of being discharged from, or decline, or become incapable, or unfit to act in the trust, that then, and whenever the same shall happen, it shall be lawful for the cestuique trust [or the tenant for life, or the surviving or continuing trustee, as the case may be], by deed [or writing], to nomi- nate and substitute some person to be trustee in the place of the trustee so dying, &c. It is then declared that the trust estate shall be vested in the new trus- tees for the same uses, and on the same trusts as before ; and, finally, that every new trustee shall be POWER. 27 competent in all respects, to act as though he had been originally appointed to the trust. This power may be framed in such a manner, and words of the '- ^ ' power must may vest the power of new appointment in such be followed, persons, as the author of the trust may think fit. Whatever its provisions may be, they must be rigidly adhered to in the appointment of new trustees under it, as any irregularity may be productive of serious consequences in after years (a). It will be borne in mind that two distinct objects Legaitransfer to be made have to be attained on every substitution of a trustee *» ™^ •' trustee. under a power. The new trustee is to be duly ap- pointed in conformity with the terms of the power, and the trust estate, or property, is to be duly vested in him. It is of importance to the outgoing trustee, as well Ketmng trustee must as to his successor, that the appointment should be see that his successor is duly made, and the transfer duly effected. The d«iyap- •' '' pointed. transfer alone wOl not protect the retiring trustee from the consequences of a breach i of trust, should such be committed by a successor who is not formally appointed. In a recent case, a retiring trustee, in the expectation that another person would be duly appointed to the trust, executed a transfer of the trust fund to him, and a breach of trust occurring, with the knowledge of the latter, the former was held (a) The general principles of the law afflecting powbes will apply to all powers of appointing new trustees. As to the mode of executing the deed of new appointment, &c., it is sufficient to refer to the Treatise on Powers by Lord St. Leonards. c2 28 NEW TRUSTEES. liable, notwithstanding his supposed retirement. He had, indeed, retired from the management of the trust, but not from its liabilities (6). Discretionary New trustees appointed under a power are, in lH)WGrS " general, considered to be endowed with all the powers and authorities of their predecessors. The question of how far purely discretionary powers are exercisable by them, is one of considerable difficulty, and can be answered only by reference to the actual words made use of in the instrument creating the trust. If the words, either plainly or by inference, confine their exercise to the trustees originally named, or imply a confidence in the personal qualifications of those per- sons, the powers cannot be transmitted. In every case the intentions of the testator or settlor, as mani- fested by his expressions, will be looked at. Appointment Lord Crauworth's Act (23 & 24 Vict. c. 145), of new 1 n •!• T trustees. greatly lacilitates the appomtment oi new trustees, m ^ranwor s ^^jjergus cases. Section 27 provides, with regard only to trusts created after August, 1860, that when- ever any trustee, either original or substituted, and whether appointed by the Court of Chancery or otherwise, shall die, or desire to be discharged, or refuse or become incapable to act, it shall be lawful for the person nominated for that purpose by the instrument creating the trust, or if there be no such (5) Pearce v. Pearce, M. E. 22 Beav. 248 ; 2 Jur. N. S. 843. It was held in this case that the proposed trustee was also liable as trustee de son tm't in respect of such trust moneys as came into his hands. LORD CEANWOKTH S ACT. -^^ person or he be unable or unwilling to act, then for the surviving or continuing trustees or trustee for the time being, or the acting executor or administrator of the last surviving and continuing trustee, or for the last retiring trustee, by writing to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying or being dis- charged. And on every such new appointment the trust property shall be, with all convenient speed, assigned and transferred so as to become legally vested in such new trustee. Every new trustee so appointed, and also every new trustee appointed by the Court of Chancery, either before or after the passing of this Act, shall have the same powers and authorities and discretions, and shall in all respects act as though he had been originally appointed to the trust. Section 28 provides that such power of appointing new trustees may be exercised in cases where a trustee nominated in a will has died in the testator's life- time. After the appointment of new trustees, the old trustees are accountable not to them, but to the cestuis- que trust. Nor is an assignee of the old accountable to the new trustees (c). A direction, usually inserted in charity trust deeds. Direction to 1 /¥> 1 • T appoint new to the effect that new trustees shall be appointed trustees, when old when the survivors are reduced to a certain specified ones reduced to a speci- fied number. (c) Johnson v. Swire, 3 Giff. 194; 7 Jur. N. S. 670. POWER OP number, does not prevent vacancies from being filled up before the trustees are reduced to that number (d). This direction, according to the fair construction of the words, would seem to imply that the new ap- pointment must be made by not less than the mini- mum number specified. Still it does not appear that a new appointment, made by a still further reduced number, or even by the survivor of them, is in- valid (e). It would seem that, in construing these powers, the court, as far as possible, upholds the new appointment ; and a remarkable instance of this oc- curred in a case, where the settlement containing a power of new appointment by the cestuique trust, with the consent of the surviving trustees or trustee, a new appointment was made by the former alone, after the death of both trustees. The appointment was held to be a valid one (y). Another instance of this disposition to support the validity of an appoint- ment, is found in a case ( g), in which two trustees were appointed by a settlement containing a power enabling the tenant for life, together with the surviv- ing or continuing or acting trustee for the time being, to nominate a new trustee, and directing that the trust estate should thereupon be vested in the newly- appointed trustee, jointly with the surviving or con- tinuing trustee. One of the original trustees having (d) Doe d. Dupleix r. Roe, 1 Anst. 86, per Eyre, C. B. (e) Att.-Qen. v. Floyer, 2 Vem. 748 : Same v. Litclifield, 5 Ves. 831. (/ ) Morris v. Preston, 7 Ves. 547. (g) In re Roolie, 2 Dr. & W. 287 ; 1 Con. & Laws. 306. APPOINTMENT. 31 (lied, and the other having become bankrupt, it was urged that there was no surviving or acting trustee, and that the power was, therefore, incapable of being exercised. Lord St. Leonards, however, remarked, "That happened in many cases without the power being affected. The construction is not so strait-laced as that." It would seem from these decisions, that where a person whose consent is required to a new appointment of trustees is not in being, or does not fill the character in which the consent is directed to be obtained from him, the appointment may be valid without such consent ; but it is not to be concluded that the consent, if not impossible to be obtained, can, in any case, be safely dispensed with. The question how far the appointmisnt of more or how far ... , "Ti 1 more than of fewer trustees than the origmal number will be the original number can supported, is not capable of an easy answer. It may se appointed. perhaps be broadly stated, that unless there be some expression in the power showing that an increase or diminution in the number was contemplated, the same number ought to be continued. It is certain that the Court will not approve of trust property which was originally vested in two trustees, being placed within the power of a single trustee {h) ; and, generally speaking, it may also be assumed that one vacancy cannot with propriety be supplied by more than one new trustee. In the following cases bearing on this (A) Hulme v. Hulme, 2 My. & K. 682 : " The Court never commits a trust to tie care of a single trustee," Ld. Romilly, M. K., 35 Beav. 19. NUMBER OP point the earlier decisions are referred to and com- mented upon. The validity of an appointment oifour trustees in the place of three original trustees who were all dead, came in question before Knight Bruce, V. C. («'). The settlement authorized the appoint- ment " from time to time as often as there should be occasion, of any other person or persons to be a trus- tee or trustees in the place of the trustee or trustees so dying,'' &c. And the Court, after reviewing the cases of D'Almaine v. Anderson (J), and Sands v. Nugee (h), in both of which, under a power contain- ing different words, the appointment of an increased number of trustees had been sanctioned, held that the power had not been properly exercised. An instance of a power so worded as to admit of the appointment of three new trustees in the place of two original trustees, occurs in the case of Meinertzhagen v. Davis (I). That decision was followed in the case of Hillman v. Westwood {ni), where the facts were as follows : — A testator appointed three persons trustees of his will, with power for the surviving or continuing trustee, his executors, administrators, or assigns, with the consent of testator's wife, to appoint one or more person or persons to be a trustee or trustees in the room, &c., and thereupon the trust estates to be vested (i) Exp. Davis, 2 Y. & C. C. C. 468 : see In re Welch, 3 M. & C. 293. (J) Lewin on Trusts, 5 ed. 468. (A) 8 Simon, 130, SliadweU, V. C. (0 1 Coll. 335. (to) 3 Eq. E. 142. NE"W TRUSTEES. 33 in such trustee or trustees solely, or jointly with the continuing trustee or trustees. Testator's wife, who was one of the trustees, died, as did also another of the trustees. On a special case, Wood, V. C, held that the last surviving trustee was authorized to appoint two new trustees to act with him, without specifying in whose place they were appointed (n). It seems to be competent for a trustee, to whom is Eight of re- ^ tinng trustee given the power of appointing; new trustees, to retire *» appoint o r jTi o ' successor. from the trust, and at the same time to appoi^it a suc- cessor (o). In a late case the survivor of four trustees, being desirous of quitting the trust, was held to be authorized in appointing four new trustees under the words of the power (p). Counsel who impugned this Difference T 1 1 /. n • 7 between appomtment, relied upon the two following autho- " mrmmng or rities on the subject of the right of retiring trustees wireUnng trustee. to appoint successors. The first — Sharp v. Sharp {q), (») Other cases on the appointment of a number of trustees differing from the original number are : —Miller v. Priddon, 1 D. M. & G. 335 : In re Fagg's Trust, 19 L. J. (Ch.) 175 : Lonsdale v. BecTtett, i De G. & S. 73 : BuVieley v. Eglinton, 1 Jur. N. S. 994:: Emmett v. Clarhe, 3 Giff. 32: Carrie v. Byrom, Lewin on Trusts, 5 ed. 468 : Se Tunstall, 4 D. & Sm. 421 : Me Pool Bathurst, 2 Sm. & Giff. 169 : Beid v. E^id, 30 Bear. 388. (o) In a case before the late V. C. Parker, two trustees had been appointed by a will, but only one of them survived the tes- tator, and afterwards this surviving trustee disclaimed the trust ; but by the same deed exercised a power given to him by the will, of appointing new trustees, and the appointment was upheld. Hadley v. Hadley, 5 De G. & S. 67. (,p) Camoys v. Best, 19 Beav. 414. (j) 2 B. & Aid. 405. c5 34 CONSTRUCTION was the case of two trustees who were unwilling to act, and who conveyed to two other persons in sup- posed execution of a power enabling "the survivors or survivor of the trustees so acting in the trust, or the executors, &c., of the last surviving trustee, by any writing, &c., to nominate a new trustee." The Court of King's Bench, however, decided that a "surviving trustee" means a "trustee continuing to act," as distinguished from one who declines to act, or wishes to withdraw. Romilly, M. E., in like manner, held that a power conferred upon " surviving or con- tinuing trustees or trustee" could not be exercised by trustees who were retiring. In this case his lord- ship said: — "There is no question but that these powers ought to be construed strictly, but strictly only in the sense that the donee can only do that which the power enables him to do, but in every other sense the power should be construed liberally, and according to the intention of the donor It is to be observed that in all these cases there is a tendency to indulge in speculations of intention and in nice distinctions, when in fact the difficulty arises simply from the manner in which conveyancers fill up a common form, where such speculations and distinc- tions never entered into the mind of the settlor. I feel great dislike to such speculations, but they cannot be altogether avoided. I am of opinion that this must be treated as an ordinary clause, in which the continuing trustee is to appoint a new trustee in the place of one retiring " (r). (r) Stones V. Romton, 17 Beav. 308; 1 Eq. K. 427. OP POWER. 35 Generally speaking, any departure fi-om the terms ■^'''"'fj^^™' of the trust should be avoided ; and the new trustees succeMors in ' the office to should be strictly appointed in the places of their pre- ^ attended decessors, without any attempt to vary the number. Where a trustee has the power of appointing a co- trustee he should be careful to appoint such a person as the Court of Chancery would approve of — not a foreigner, or a person out of the kingdom, or a person in straitened circumstances, or open to any other ob- jection. A trustee who is quitting the trust should be equally careful in exercising such a power, as though he were continuing in the trust; and he should resist any attempt to supply his place by a trustee who will be likely to commit or connive at a breach of trust. A trustee who after declining to commit a breach of trust, offers to resign in favour of another who may be more pliable, does that which may in- volve him in trouble at a future time (s). A power generally authorizes a new appointment Wboisin- ,..,,„ capable of in the event of a trustee becoming " incapable of acting, or ■^ •' unfit to act. acting" or "-unfit to act" in the trust. There is a wide distinction between these conditions of disquali- fication, which may be illustrated by the case of a trustee who has become bankrupt. He is not conse- quently " incapable " of performing any duty annexed to the trust (t), and may appoint a successor under a power authorizing such appointment; but a bankrupt (s) PalaAret v. Carem, 32 Beav. 567 : and see Le Hunt v. Webster, 8 W. R. 431 ; [reversed on appeal, 9 W.E. 918.] (f) In re Watts, 9 Ha. 106. 36 DISQUALIFICATIONS. Bankinptcy. trustee has been held by Lord St. Leonards to be " unfit " within the meaning of the power (u). By analogy it may be presumed that a trustee discharged as an insolvent is " unfit," and may be superseded. Absence. Absence from the country is not prima facie a cir- cumstance rendering a trustee "incapable" of acting (a;); but the case would be regarded otherwise were a trus- tee to settle permanently in a distant place. Thus, where a trustee settled in New York, it was held that he was "incapable" of discharging the duties incident to a trust of leasehold premises in Middlesex {y). But where the trust deed declared that any person should cease to be a trustee on his " departing the United Kingdom from whatever cause or under whatever cir- cumstances," the Court held that the temporary ab- sence of a trustee was not within the prohibition (z). Trustee Although a trustee in ffoinsr to settle abroad does not going abroad ° o o should retire, thereby ccase to fill that oiflce, yet he does that which entitles the cestuique trust to require that the office shall be filled by another person. A trustee who from either of the foregoing causes, or from any other suf- (») In re Hoolie, 2 Dr. & W. 387. There is, liowever, no absolute rule that a bankrupt is " unfit " to be a trustee— the nature of the bankruptcy will be considered. Re Bridg-rrum, 1 Dr. & Sm. 164. (a;) Withington t. Withington, 16 Sim. 104. iy) Mesnard r. Welford, 1 Sm. & Giff. 426. Unsoundness of mind of course renders a trustee "incapable of acting" and the Court will appoint a new one in his place. In re Cooper, 25 Law J. Ch. 685. («) Re Moravian Society, 26 Beav. 101. NEW APPOINTMENT. 37 ficient cause, becomes incapable of fulfilling the duties of his trust, should lose no time in exercising the power of appointing a successor, if he be invested with that power ; but in so doing he should consult his cestuique ^'^'^^^^ trust as to the nomination of a suitable person in his t>e informed ^ of change. place, and even if the appointment be made without consulting the cestuique trust, the retiring trustee is bound to give him immediate notice of the change (a). While a suit is pending for administration of, or Appointment ^ ^ pendente lite. otherwise in relation to the trust estate, the usual and proper course is to apply to the Court by petition for a new appointment of trustees. It does not follow that an appointment made vsdthout the sanction of the Court, by a person on whom the power was originally con- ferred would be necessarily invalid (6). Nevertheless, ^ivSea*'^ an individual accepting the office under such circum- stances wiU run a great risk of sustaining inconvenience and loss, for not only will the onus lie on him of proving to the Court that the appointment has been regularly and properly made, but he will have to bear the costs of so doing, as weU as of any extra costs that may be occasioned by his appointment (c). No person therefore should consent to become a trustee of any property, while it forms the subject matter of a suit in the Court of Chancery, unless appointed by the Court, or under its express sanction. (o) O'Reilly v. Alderson, 8 Hare, 101. (J) Graham v. Graham, 16 Beav. 551. (c) Attorney- General v. Claek, 1 Beav. 467. 38 NEW APPOINTMENT. Expenses. The expense of a new appointment of trustees may properly be charged on the corpus or capital of the fund, inasmuch as it is for the common benefit of all persons interested (d), but if unsuitable persons are appointed by a tenant for hfe of the fund, under a power of appointment, and it becomes necessary to remove them, the Court will charge the expense so incurred on the tenant for life's interest (e). Duty of , A trustee when newly appointed is not bound to newly-ap- pointed scrutinize the former history of the trust, and the acts trustee. of his predecessors ; but he is bound to see that the property is duly assigned to or vested in himself; and that all requirements of the law for keeping it secure are complied with(/'). Where the property consists, for example, of Government stock, he must ascertain that it is properly transferred into his name, and he may be fixed with liability for any loss incurred through neg- lect of such transfer being effected. He is as effectually bound by a recital in the trust deed that the transfer has been made, as he would be by the transfer itself {g). (d) Carter v. Sebright, 26 Beav. 376. (e) Rallies v. Rallies, 32 Bear. 403. (/) Macnamaray . Carey, 1 Ir. L. R. Eq. 23. 0?) Story V. Gape, 2 Jur. N. S. 706: M'Gachen v. Bern, 15 Beav. 8i: and see Fenmicli v. Greenmell, 10 Beay. 418: Gore V. Bowser, 3 Sm. & Giff. 6; Clialgneau v. Bryen, 8 Ir. Ch. Rep. 251. It may be presumed that the stock intended to be transfeired to the tnistees in Story v. Gape, actually existed, as no doubt was suggested on this point. The hardship would be very great were a trustee bound by a recital, to replace stock which never was in the possession of the settlors. RESUMPTION OF TRUST. 39 G-enerally speaking, whatever be the acts of a trustee, Trustee re- ■' '■ ^' _ ' mains such or however unfit he may prove for the fulfihnent of his "lUi re- •^ ^ gularly re- duties, he continues to hold his office until regularly moved, superseded. It may be presumed, therefore, that if no step be taken to supply the place of a trustee who has settled abroad or otherwise become disqualified, it is open to him at any time to resume the management of the trust (h). (h) Attorney-General v. Pearson, 3 Mer. 412. ( 40 ) CHAPTER III. Inherent jurisdiction as to change of trustees. OF CHANGE OF TRUSTEES BY THE COURT OP CHANCERY THE TRUSTEE ACTS. The original jurisdiction of the Court of Chancery in all matters arising out of trusts, has enabled that Court at all times to interfere in the removal and change of trustees, without regard to the existence of any power of new appointment. This jurisdiction has been always exercised with readiness when the circum- stances of the trust made interposition desirable — as in case of a charitable trust, which from its very nature requires the oversight and control of a Court of Equity (a). With regard to trusts of a private nature, the Court has xmiformly discouraged suits to effect that which could as well be effected by the parties (b). But where, from the instrument creating the trust containing no provision for keeping the trust filled, or from any special circumstances, this object could not readily be attained, it has always been the practice of the Court to grant the required relief, on bill filed by the cestuique trust, or by the retiring trustee, or by both. (a) Attorney- General v. Clack, \ Beav. 470. (Jb) Mnlay v. Howard, 2 Dr. & War. 490. CHANGE OF TRUSTEES. 41 The following rules and principles of the Court in ap- Mes ome pointing new trustees were laid down byL. J. Turner, i'°™J™f_"'^ in a recent case (c) :—" First, the Court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected from it. I think this rule may be safely laid down, because if the author of the trust has in terms declared that a particular person, or a person filling a particular character, should not be a trustee of the instriunent, there cannot, as I apprehend, be the least doubt that the Court would not appoint to the office a person whose appointment was so prohibited, and I do not think that upon a question of this description any distinction can be drawn between expressed declarations and demonstrated intention. The analogy of the course which the Court pursues in the appointment of guardians affisrds, I think, some sup- port to this rule. The Court in those cases attends to the wishes of the parents, however informally they may be expressed." "Another rule is this — that the Court will not appoint second rule, a person to be trustee with a view to the interest of some of the persons interested under the trust, in op- position either to the wishes of the testator or to the interests of others of the cestuisque trust. I think so, for this reason, that it is of the essence of the duty of every trustee to hold an even hand between the parties (c) In re Tempest, L. Eep. 1 Ch. App. 485; 12 Jur. N. S. 539. 42 CHANGE OP TRUSTEES interested under the trust. Every trustee is in duty bound to look to the interests of all, and not of any particular member or class of members of his cestuisque trust." Third rule. "A third rule is, that the Court in appointing a trustee will have regard to the question w^hether his appointment will promote or impede the execution of the trust, for the very purpose of the appointment is, that the trust may be better carried into execution (rf)." According to the practice of the Court, if no person be proposed as trustee, there wiU be a reference to chambers to approve of a proper person. However if all the parties are competent, and consent to the ap- pointment of a particular person, the Court would at once act upon the consent without any reference being required. A conveyance (to be executed by all proper parties) is then directed to the new trustee; Costs oj suit, and in general the costs of suit are ordered to be paid out of the corpus of the trust estate. This mode of proceeding involving a conveyance of the trust estate was in general use until the passing of 1 Wm. IV. cap. 60 (Sir E. Sugden's Act), which em- Modem pro- cedure by petition. {d) In re Tempest, L. Eep. 1 Ch. App. 485. It farther appears from this case that the fact of the contintdng trustee refusing to act with the proposed new trustee would not he suffi- cient to induce the Court to refrain from appointing him. Also that where the question of appointing a new trustee has been brought before the Court of Appeal for rehearing, the Court, in considering the fitness of the new trustee, is not precluded from regarding efidence of occurrences subsequent to the original hearing. BY THE COURT. 43 bodying some minor enactments on the subject, gave enlarged jurisdiction to the Court. A more summary method of substituting trustees of some descriptions of property was provided by this Act. In progress of time, however, it was found that trust funds invested in shares transferable by deed (a species of property almost unknown a quarter of a century since) were not withiu the Act, and further legislation was therefore required. Under that Act, moreover, the Court pos- sessed no power to make an order vesting property in the newly-appointed trustees, but the useless formality of a conveyance was required, by some person who, without possessing any legal or equitable interest, was specially " appointed to convey." This Act further limited the powers of the Court to certain specified cases, and did not provide for numerous contingencies that must continually arise to require the interposition of the Court with regard to the appointment and re- moval of trustees. "The Tbustee Acts," 1850 and 1852, were intro- TheTmstee duced to supply the deficiencies in, and extend the and 1862. reUef afforded by the Act of Wm. IV. the more useftd provisions of which are now re-enacted. These Acts, 13 & 14 Vict. c. 60, and 15 & 16 Vict. c. 55, are in- corporated and form together one Act (e). They were not intended to afibrd facilities for trying disputed (c) 15 & 16 Vict. i;. 55, s. 12. It will be convenient through- out this chapter to designate the Trustee Act, 1850, and the Trustee Act Extension, 1852, as the fiest and second Acts respectively. CHANGE OF TRUSTEES questions of title (/). ProceediDgs are now taken under them in almost all cases where the interposition of the Court of Chancery is required for the suhstitn- tion of trustees, and the transfer of trust property. It is therefore to he supposed that appointments of new trustees will seldom in future be made by the Court, otherwise than under these Acts. A suit continues to be the only mode of redress open to a trustee seeking to be discharged from the trust, the " Trustee Acts " not applying to this case. When a suit is already pending, the retiring trustee, by pe- tition or on motion, applies to be discharged, and on showing that he is in no way accountable to the trust, his application will in general be granted. In dis- charging a trustee, the Court will, however, act on its established principles, and where infants or other legally-incapacitated persons are interested, wUl take care not to prejudice their rights. Where no suit is pending, the retiring trustee must proceed by bDl, and the costs of the suit will depend on the nature of the reasons which induced the trustee to apply for his dis- charge. "It is quite settled that a trustee cannot, from mere caprice, retire from the perfoirmance of his trust without paying the costs occasioned by that act ; it is also quite clear that any circimistances arising in the administration of the trust, which have altered the nature of his duties, justify him in leaving it, and en- title him to receive his costs ; but I think that to justify (/) In re Draper, 9 W. R. 805. BY THE COURT. him in that course, the circumstances must be such as arise out of the administration of the trust, and not those relating to himself individually" (Romilly, M. R. in Forshaw v. Higginson) (g). A trustee who can show sufficient grounds for his application to be dis- charged will not be required to find a person willing to take his place ; but if a trustee, from mere caprice, desire to be discharged, the Court will be unwilling to release him unless a suitable substitute be pro- vided (A). " If a trustee finds the trust estate involved in intricate and complicated questions, which were not, and could not have been in contemplation at the time when the trust was undertaken, he has, in consequence of that change of circumstances, a right to come to the Court to be relieved" (Lord Langdale in Greenwood v. Wakeford) (J). In the ordinary case, the costs of the retiring trustee will be paid out of the estate generally, but if the " intricate and complicated questions" have arisen from the Une of conduct of any one of the ces- tuisque trust in particular, the costs wiU be charged on his interest exclusively (k). A trustee cannot be required to divest himself of the Deeds by trust estate piece by piece by a series of deeds, but trustee. may claim to transfer the entire by one deed ; and in (j) 20 Beay. 485. (7t) Courtenay \. CouHenay, 3 Jo. & Lat. 533 ; see Gar- diner T. Downes, 22 Beav. 397; 2 Jur. N. S. 847 : Ardill v. Savage, 1 Ir. Eq. Eep. 79. ^ (i) 1 Beav. 581. See also Zegg v. Machrell, 1 Giff. 165; 2 De G. & J. 551. (Al Cmwntry t. Coventry, 1 Keen, 758. 45 TEUSTEE ACTS. executing sucli deed he may, under ordinary circum- stances, refuse to convey by any other words or descrip- tion than that by which the conveyance was made to himself {I). There is ground for supposing that where the trust devolves upon a person who has never undertaken to fulfil it, as for instance, upon the personal representa- tive of the original trustee, he will be more Ukely to succeed in charging the trust estates with his costs, than would the original trustee (ni). This distinction, adverted to by Lord Langdale (in Greenwood v. Waheford), would seem to foUow from the consideration, that where an obligation has not been voluntarily entered into, a wish to be reUeved from its burden cannot be thought capricious or un- reasonable ; and no method, exists of obtaining such relief without the aid of the Court of Chancery. When the trust has been accepted by the original trustee in his Ufetime, it is not competent for his heir at law, or personal representative, after his death, by disclaimer or otherwise, to evade the estate which in due course of law devolves upon him. The Trustee Acts, 1850 and 1852. Trustee Acts. These Acts confer upon the Com-t of Chancery a (V) Goodson v. Ellison, 3 Euss. 594: see Smith v. Snow, Mad. 10. (m) 1 Beav. 582; i Beav. 212. See Chapter X. TRUSTEE ACTS. 47 power of very great importance — the power of trans- ferring property by the order of the Court, without any conveyance or assignment whatever. The juris- diction under these Acts may be technically described as being in rem as well as in personam. It may be remarked that being remedial Acts, they Eemediai Acts. will be construed liberally, although they will not be held to extend to any descriptions of property except those mentioned by them. Three classes of property are within their scope. (l)Land: defined bv the interpretation clause [13 Property ^ ' ./I L within the & 14 Vict. c. 60, s. 2] to mean manors, Trustee Acts, messuages, tenements, and hereditaments, corporeal and incorporeal, of every te- nure or desci'iption, whatever may be the estate or interest therein. (2) Stock : defined to mean any fund, annuity, or security transferable in books kept by any company or society, established or to be estabhshed, or transferable by deed alone, or by deed accompanied by other formalities, and any share or interest therein (n). (3) Chose in action: not defined by the Act, but signifying a right or cause of action ; anything recoverable by process of law, as a debt or judgment. Where a trustee has been found a lunatic, or is of Lunatic Trustees. (») Shares in ships are included, 18 & 19 Vict. c. 91, s. 10 ; also shares in joint-stock companies, 5 Dr. & Sm. 278. 48 TKDSTEB ACT. iinsouiid mind, i. e., incapable, from infirmity of mind, to manage his own affairs (o), tlie Lord Chancellor is enabled by ss. 3, 4, and 5, by order to vest any lands, or to release lands from any contingent right, or to vest the right to transfer stock, or receive the divi- dends, &c., or to sue for and recover any chose in action. In the case of land, the oi'der is to have the same effect as if a conveyance or assignment had beefl duly executed. The Lord Chancellor reiused under . this section to make the order where the trustee had no interest capable of " conveyance or assignment," but merely a power of sale (p). By section 10 of th^ Trustee Extension Act, it is provided that the powers . conferred by these sections may be exercised by the iniant L- C. sitting in his jurisdiction in lunacy (g). Byj ™' ''^' section 7, the Court of Chancery is enabled to convey the legal estate of lands vested in any infant trustee ; and by section 3 of the second Act, a similar power is conferred upon the Court of transferring stock stand- ing in the name of an iofant trustee. By section 8, the Court is enabled wholly to release any contingent rights of infant trustees (r). (fl) See Interpretation Clause. The act will be found in the Appendix. (^) Re M-anMin, 3 Eq. E. 719. The husband of a female trustee has been held to be a trustee within the act. He Wood, 7 Jur. N. S. 323; see Re Bradsliaw, 2 D. M. & G. 900. {q) The Lords Justices of Appeal in England have similar jurisdiction given to them by the Act constituting their Court. The other Equity Judges have no jurisdiction in lunacy. (?•) An order made pursuant to section 7, or section 8, of the TRUSTEE ACT. 49 Sections 9 and 10 provide, that where any sole Trustee out ■^ "^ ofthejurts- trustee of land, or any person who is trustee jointly diction. with another, shall be out of the jurisdiction, or can- not be found, the Court may exercise a like power of vesting the land by order (without any conveyance) as the Court may direct (s). It is provided by sections 11 and 12, that the Court contiugent ■^ •' rights. may deal in like manner with the contingent rights of trustees who cannot be found, or may be out of the jurisdiction — whether such contingent rights are solely possessed, or jointly with other persons ; and by sec- tion 13, the case is provided for where it is uncertain survivor un- 1 • 1 /» 1 certain. which of two or more trustees was the survivor. With regard to cases where it is uncertain as to the uncertainty / _ TniT^*° tnigtee trustee last known to have been possessed, &c., whether being alive. act will have the same effect as though the infant had attained twenty-one years of age, and had then duly executed a deed conveying or disposing of the property. A vesting order under section 7, as to the estate of an infant tenant in tail in re- mainder, with consent of the tenant for life, will operate to bar the entail and remainders over. Powell v. Matthews, 1 Jur. N. S. 973. (s) This section underwent discussion in the cases of RecxC^ -T^ TFatts, 9 Hare, 106, and ^e i'Zyer, 15 Jur. 766. In both cases J ^ 2_ a trustee was out of the jurisdiction, and there was one or more continuing trustees. The V.-C. was unwilling to make the vesting order, but there is now no doubt that the order will be made in such cases under this section and section 34. See Smith V. Smith, 3 Eq. K. 127 ; Re Marquis of Bute, 1 John. 15. An heir on whom the trust estate devolves through the disclaimer of the trustees is a trustee within section 9 of the Trustee Act. Wilks v. Gfroom, 6 De G. M. & G. 205. ' U. c^ D 50 TKDSTEE ACT. he be living or dead, the like power of vesting the trust estate by order is given by section 14 (t). Trustee Section 15 provides for the case of a trustee dying dying with- ^ •' ° out iieir, intestate vjrithout an heir, or of it being unknovp^n vrho is his heir or devisee. This section does not apply to leaseholds for terms of years ; but they may be vested under section 34 (u). iTiibom The Coui't is empowered by section 1 6 wholly to trustee, r J j release the contingent right of an unborn trustee or trustees. Vesting order Sections 17 and 18 of the first Act are repealed by may be made on refusal or the second Act : and in lieu thereof it is provided (by neglect to r \ j convey. section 2) that the Court may make an order vesting the trust estate, as may be directed, on the refusal or neglect of a trustee to convey or assign, or to release a contingent right, after demand duly made (as therein directed) by a person entitled to require such convey- ance or assignment, or by his authorized agent (x). (t) This contingency was provided for by the former Trustee Act, 1 Wm. i, c. 60. The Court may, however, do under the present Acts, by a vesting order, all that was before accom- plished through the interposition of " a person to convey." (m) Me Mundel, 6 Jur. N. S. 880. (x) The repealed sections (17 and 18) required the tender of a deed to a refusing trustee for execution, before the Court would make the vesting order. The substituted clause merely requires the refusal or neglect of the trustee for twenty-eight days after demand, to justify the Court in making such order, wliich, when made, is to have the " same effect as if the trustee had duly executed a conveyance or assignment." It was found that under the original sections no mode could be devised of TRUSTEE ACT. 51 Section 20 provides, that in every case where tlie Tiie court may appoint Lord Chancellor or the Court of Chancery is under the a person to convey. Act empowered to make an order having the effect of a conveyance or assignment, or releasing contingent rights, the Court, &c., may, if it be deemed more con- venient, appoint a person to convey, assign, or re- lease. This section allows an option of proceeding in the manner formerly in use (under the old Trustee Act), and it seems that an impression at first gained ground, that where parties were of ability to convey, the Court would direct a conveyance, instead of making a vesting order. It is, however, now settled, that unless special circumstances render the other course desirable, a vesting order will be made in all cases (y). Sections 22, 23, and 24 afford similar relief in the Keiiet where trustees of following cases : — Where ioint or sole trustees of any stock, &c. ° . cannot be stock or chose in action are out of the jurisdiction, or 'o»i"i> *"=■ cannot be found, or where there is imcertainty as to such trustee being alive, or where a sole trustee or one of several trustees of any stock or chose in action neglects or refuses to transfer such stock, or to receive the dividends or income for twenty-eight days, after a request in writing by the person absolutely entitled thereto. The case of an infant trustee of stock being held to infant trustee of stock. compelling the transfer- of the legal estate in copyhold lands. Headlam, T. Acts, 84. Rowley v. Adams, 14 Bear. 130. (y) Re Manning, Kay, App. 28 ; 2 Eq. Eep. 221. See WiUs V. Groom, 6 De G. M. & G. 205. d2 S2 TRUSTEE ACT. be unaffected by this Act, a clause was inserted in the second Act, providing that an order might be made, vesting the right to transfer such stock, or to receive the dividends, &c., vv^here the stock is standing in the name of the infant solely, or otherwise (z). " Sole trus- It has been supposed that the term " sole trustee" tee " defined. (occurring in section 22) has a wider signification given to it by the interpretation clause than its mean- ing imports. The strict and literal construction of that term was, however, upheld in a recent case, when the Vice-ChanceUor remarked : " The term sole trustee, in the Act, has a clear and definite meaning ; it means a person originally a sole trustee, or one who has become a sole trustee by surviving" (a). Order can be Where an application was made to the Court, under made only , ,.,i t j • t ■ (or dividends the 23rd section, by a person entitled to receive oivi- dends of stock, the petitioner was declared entitled to receive such dividends only as had accrued prior to the date of the " request in writing ;" and the Court held that it had no power to make an order as to divi- dends subsequently accruing (6). («) The right to receive future as well as past dividends may be* vested, 6 W. E. 453 ; and more recently an order was made by the Court of Appeal, vesting the right to receive both ac- crued and futm'e dividends in three out of four trustees, the fourth being abroad. In re Peyton, 2 De G. & J. 290 : See Jn re Seton, Tripp's Forms, 227. As to the meaning of the words " absolutely entitled" in section 23, see In re Mlis, 24 Beav. 426. (a) In re Randall, 1 Drew. 401. (J) Re Sartnall, 5 De G. & S. 111. TRUSTEE ACT. 00 An important addition to these sections is made by order may be ■*■ *^ made witlioul the Second Act (s. 4) by which it is provided that request in ^ ' "^ *■ writing. when any person shall neglect or refuse to transfer any stock, or receive the dividends, &c. or sue for, &c. any chose in action for twenty-eight days next after an order of the Court of Chancery for that purpose shall have been served upon him, the vesting order may be made as above. The request in writing is no longer, therefore, a condition precedent to the action of the Court. The 24th section underwent discussion in a case Who is "ab- solutely where a surviving, but superseded, trustee of stock entitled." neglected to make a transfer to two newly-appointed trustees, after request in writing had been duly pre- ferred. The Court held that the new trustees were "absolutely entitled" to receive the stock within the meaning of the Act, and made an order accordingly. In such a case the petition may be presented by the parties beneficially interested in the stock, although the right to legal possession of the stock rests in the trustees (c). The Court is next empowered to make a vesting stock stand- ing in name order where stock shall be standing in the sole name »' deceased ° person. of a deceased person, whose personal representative shall be out of the jurisdiction, or cannot be found, (c) Re Russell's Trusts, 1 Sim. N. S. 404 : and Re Baxter's Trvsts, 2 Sm. & G. App. 5. The Court will not order the transfer of stock to persons appointed trustees under a power without some evidence as to their fitness for the ofBce. Re Maynard, 16 Jur. 1084. o4 TRUSTEE ACT. or shall neglect or refuse to transfer, &e. after request duly made ; and the remedy is further extended by section 5 of the second Act, under which the Court may make the vesting order after neglect as therein mentioned, without any request in writing. Effect of The eiFect of a vesting order is declared by the vesting order ^ "^ of stock. ngxt section (26>, by which the Bank of England is directed to recognize the title of any person in whose favour such order shall have been made, and the Bank is prohibited from acting on the requisition of any person in whose place any appointment authorized by the Act shall have been made. This clause extends to all other Companies and Associations ; but stringent as it appears, it does not seem to have accomplished its object ; and the Bank of England refusing to allow the transfer of stock by a person whose title to it was derived solely from a vesting order under this Act (rf), a more stringent clause was introduced into the second Act (s. 6), and a complete indemnity is now fiimished by the order of the Court to the Bank and to all other Companies, Associations, and persons, for any act done pursuant to such an order ; nor is any inquiry necessary as to the propriety of such order, or the jurisdiction of either the L. C. (sitting in Lunacy), or the Court of Chancery, to make such order (s. 7). Chose in The effect of a vesting order as to choses in action is declared by section 26. Copyholds or ^g to copyhold or customani lands, it is provided customary ^ ^ *y > l lands. ((?) Re Smyth, 15 Jur. 644. TRtrSTEE ACT. 55 (by s. 28), that when the vesting order shall be made by the Court with the consent of the lord of the manor, the lands shall then, without any surrender or admittance, vest accordingly (e) ; and that where any person is (under s. 20) appointed to convey, such conveyance shall have the same effect, and the lord of the manor shall, subject to the customs of the manor, and to the usual payments, be equally bound to make admittance, &c. as if the persons in whose place an appointment shall have been made had done all acts, and executed all instruments necessary to complete the assurance. Where a trustee has been duly admitted as a copy- Consent of •' ^•' lord of holder, the consent of the lord of the manor should be manor neces- sary. obtained before applying for a vesting order imder this Act. If this cannot be obtained, a person wiU be appointed under section 20, to convey. The consent of the lord has been dispensed with under special circumstances, where the origjnal trustees have never accepted the trusts, and the legal estate has not de- scended {f). By section 29 it is provided that after decree made Heir, &c. of "^ ^ lands de- by a Court of Equity for sale of lands for payment '^^'^^ '" ''* (e) The appearance of the lord of the manor on the hearing is not reqiiired under this section ; a verified certificate of his consent is held to be sufiicient. Ayles v. Com, 17 Beav. 584. As to the practice of vesting copyholds by order, see Paterson V. Paterson, 35 Beav. 506; L. E. 2 Eq. 31 ; 2 Seton on Decrees, 3 ed. 799. (/) Re Howard, 3 Eq. R. 846; Be FUtcroft, 1 Jur. W. S. 418. 56 TRUSTEE ACT. sola to be of the debts {g) of a deceased person, every person trustee. taking such lands as heir or devisee, shall be deemed a trustee of such lands within the meaning of the Act. Section 30 enables the Courts of Equity to declare what parties to certain classes of suits concerning lands, are trustees of such lands within the meaning of the Act ; and thereupon the Court may make such order as to the estates of persons interested, or who may become interested, whether born or unborn, as the Court is by former sections enabled to make in relation to actual trustees, in being or otherwise. The powers conferred by these sections (29 and 30) are much enlarged by section 1 of the Second Act, which declares that after decree or order for sale of any lands for any purpose whatever, all persons enti- tled to, or interested in the lands, who are bound by the decree, &c. shall be deemed to be trustees within the meaning of the Act, and in every such case the Court may make an order vesting the property in a purchaser, or otherwise as the Court may direct (h). Whore de- In a casc where a decree had been made in a suit execution of for specific performance, directing the defendant (a (^) A sale for payment of costs is not within this section, Weston V. Filer, 5 De G. & Sm. 608; but the second act has removed the difficulty. Sanoox v. Spittle, 3 Sm. & Gif . 478. (A) There is ground for concluding that under this Act the ancient rights of infants may be entirely extinguished. Tor, in a partition suit the Court has declared the infant a trustee, without reserving to him the old privilege of a day to show cause. Bomra v. Wright, 15 Jur. 981; 4 De G. & S. 265. 57 TRUSTEE ACT. peer) to execute a deed to secure a rentcharge, various orders had been made by the Court to this effect, but they were disregarded. A petition was then presented by the plaintiff under these Acts, praying the appoint- ment of a proper person to execute the deed in Ueu of the defendant, and the evidence clearly showed the defendant's refusal to execute the deed ; it does not appear from the report of the case, but it may pro- bably be assiuned that a refusal for twenty-eight days after request was established. Under these circum- stances the order was made by the Lords Justices as prayed (i). Section 31 enables the Court to make declarations court may give direc- and to give directions concerning the manner in which *'°°s- the right to any stock or chose in action vested under the Act shall be exercised ; and declares that the per- sons in whom such rights are vested shaU be com- pellable to obey such directions and declarations by the same process as that by which other orders under the Act are enforced. It has been decided that the Court cannot, under this section, order a fund to be paid into Court (A) ; but it can direct trustees to lodge the fund in Court under the Trustee Eelief Act (Z). The sections which we have considered form in themselves a code of law applicable to cases where a transfer is required of trust property from a trustee, or (i) In re Mornington, 1 Eq. R. 369; 4 De G. M. & G. 537. (*) Re Parly, 29 L. T. 72. (0 In re Thornton, 9 W. K. 475. d5 58 TRUSTEE ACT. General power of appointing new trustees. a person in the position of trustee, to his cestuisque trust, or such other persons as the Court may appoint ; and due provision is made, it is believed, for every case where, from legal disability, absence, or any other cause, such transfer shall be found impracticable with- out the aid of the Court. Sections 32 to 37 inclusive, form a separate divi- sion of the Act, which should be carefully distin- guished from the oth^ portions of it. These sections refer to the appointment of new trustees, and the vesting of the trust property in them. Whenever it shall be expedient (jw) to appoint a new trustee or new trustees, and it shall be found inexpe- dient, difficult, or impracticable so to do without the aid of the Court, the Court is empowered to make an order appointing a new trustee or trustees, either in substitution for or in addition to any existing trustees (m) It is considered expedient to appoint a trnstee of full age in the place of an infant. Re Porter's Trust, 2 Jur. N. S. 349; see Re Shelmerdine, 33 L. J. Ch. 474. Under section 32 the Court has made an order appointing new trustees where the persons having power to appoint them were resident in India. Re Humphreys, 1 Jur. N. S. 921. It seems that the Court will interpose more readily than was at first anticipated, and will not minutely investigate the reasons which lead parties to seek its intervention. The meaning of the word " expedient " in the 32nd section, was considered in Davis v. Clumter, 6 W. E. 416. Vesting orders are now made where there is no incapacity on the part of the persons possessed of the legal estate to convey. Re Manning, Kay, Append. 28. The title of the persons bene- ficially interested may be shown by affidavit, without strict evi- dence. Re Soskins, 4 De G. & J. 436. TRUSTEE ACT, or trustee ; and whether there be any existing trustee or not at the time of making such order («). This is, perhaps, the most important and compre- hensive section in the Act ; and while conferring ample and beneficial powers, it imposes upon the Court the necessity of great caution, lest new appointments of trustees be made for objects at variance with the inten- tions of testators and settlors. Several cases that have been decided upon this section show that the Court of Chancery, notwithstanding the wide discretion given, will adhere to its usual maxims in the exercise of this power. As to the number of trustees which the Court will appoint, see Chapter II. ante. It may be briefly stated that the Com-t will not, under any circum- stances, appoint a single trustee, where the creator of the trust nominated more than one ; but in other respects the Court may vary the number (o). The Court will not willingly appoint a near relative a trustee, much less one of the cestuisque trust — that is, if any other suitable trustee can be procured ; nor will the Court appoint an alien, or a person out of the jurisdiction (jo), (re) The last sentence is added by section 9 of the Second Act, to remove a doubt that seems to have been entertained as to whether the Court could act where no trustee was in being. [Parker, V.-C, however, considered the point clear, and ap- pointed two new trustees in the place of two who had disclaimed. In re Tyler, 5 De G. & S. 56.] (o) Me Ellison, 2 Jur. N. S. 62; Re Porter, 2 Jur. N. S. 349; BirohY. Cropper, 2 De G. & Sm. 255; Re Twnstall, 4 De G. & Sm. 421; EmmeU v. aarke, 9 W. E. 515. (y) Lewin on Trusts, 6 ed. 769, n. 60 TRUSTEE ACT. Court will It will further be observed that the Court will not not interfere unnecessa- ac< where its interference is unnecessary. Where there is a power of appointing new trustees, and some person who is able to exercise that power, special cir- cumstances of difficulty, &c., must be shown before the Court will do for the parties what they can legally do for themselves (q). d-Ci. LtyuJt, -^g^iii where there is a duly appointed trustee, act- ing and willing to act as such, he will not be removed without some good reason. The words of Sir G. Turner, V.-C, in refusing an appHcation, were — "This statute was not intended to give the Court jurisdiction to remove a trustee where he states that he is desirous of continuing in the trust. The Act empowers the Court,, whenever it is expedient, to appoint new trus- tees ;■ but that provision is, I think, confined to the ap- pointment, and does not extend to the discharge of a trustee who is willing to remain " (r). (§') Wiere one of the trustees of a settlement, containing a power of new appointment, became incapable of acting through unsoundness of mind, the Court made the order. In re Davis, 3 Mac. & G. 278. And in cases where necessary parties have been living in distant parts of the globe, orders have been made under this section ; see Se Humphrey's JEstate, 1 Jm'. N. S. 921; Se Harrison's Trust, 22 L. J. N. S. Ch. 69. The Court will not enter into the question of the validity of a settlement on an application under this section, but vfill simply appoint a trustee to protect whatever rights exist under the settlement. Me Mat- thems, 26 Beav. 463. (»•) lie Hodson, 9 Hare, 118 ; see also Re Slancliard, 7 Jur. N. S. 505; Re Hadley, 5 De G. & S. 67; Re Qarty, 3 N. E. 636 : but the Court vrill make a vesting order in a case where there are persons in being who might convey. Re Man- ning, Kay, App. 28. TKUSTEE ACT. 61 Another principle, on which the Court will act in ^"^^1"°^ ^g exercising this power, is — That all parties really in- g^*^"" ^^ terested must be before the Court {s). Thus, where the persons, beneficially interested in six-sevenths of a fund, appUed for the appointment of a new trustee, the Vice-Chancellor declined to accede to the applica- tion in the absence of the party entitled to the remain- ing one-seventh, no grounds having been alleged for the omission to serve him (<)i In another case, the application being for the appointment of new trustees in the place of two who were desirous of retiring, the M. R. required both the old trustees, and ah. the ces- tuisque trust to appear, and directed the petition to stand over for that purpose (m). Where it can be shown that the service of some of trnicss ser- the persons mterested is impracticable (as from their ticawe; being out of the jurisdiction), the Coiu-t may make the order without reference to them (x). Nor is it neces- — orthein- terest very sary to bring before the Court persons who are re- remote. motely interested, when those more immediately in- terested in the same fund are made petitioners, or are served with notice of the application. Thus, where the interest in a trust fund was made the subject of various settlements, and it was sought to appoint new trustees of the original deed, service on the several (s) Re Felloms, 2 Jar. N. S. 62; ^e Prescott, 19 L. T. 371. The beneficial title may be shown by affidavit. Me Hoshms, 4 De G. & J. 436. (t) Re Richard's Trust, 5 De G. & S. 636. (u) Re super, 18 Beav. 596. (as) Sviwter v. 6-iison, 16 Sim. 159. 62 TRUSTEE ACT. New trustees to have the same rights, &c, as if appointed in a suit. Propriety of inserting powers for appointing new trustees. cestuisque trust, their husbands, and their respective trustees, was considered sufficient, and the presence of grandchildren of the original settlor was dispensed with {y). Section 33 provides that the new trustees to be appointed under the Act shall have all the same rights and powers as if they had been appointed by decree in a suit duly instituted {z). It follows from this that trustees, so appointed, sustain that character, in all respects, as though they had been originally named in the creation of the trust ; and while taking upon them- selves the liabilities and duties incident to the trust, they also become endowed with aU its rights and pri- vileges (a). The only powers which do not become (i/) In re Smyth, 2 De G. & S. 781 ; and see Re Wyse, 5 De G. & S. 415. (z) Mr. Headlam is of opinion that, in consequence of the satisfactory working of these clauses, it would, in ordinary cases, be prudent to omit from trust deeds the usual power of appointing new trustees. " In the absence of any power in the deed or will, there is no doubt that, when occasion requires, the Court will appoint new trustees, and, under the subsequent clauses, vest the property in the new trustees when appointed. The expense of such a mode of appointment will be considerably less than the expense of a deed appointing new trustees under a power, together with the costs of the necessary conveyances for conveying such property to new trustees without the aid of the Court." (Headl. T. Acts, 3 Edit. 64.) Lord St. Leonards, however, considers that it^s not the proper province of Courts of Equity to act where the parties can themselves do so, and considers that the usual powers ought still to be inserted. (R. P. Stat. 407, n.) These clauses can hardly now be considered necessary. See page 28, ante. (a) Coley.Wade,lQYesAi:; SraysonY.Pocock,iS]m.2SS. TRUSTEE ACT. 63 exercisable by trustees substituted by the Court, either under its general jurisdiction or under the Trustee Acts, are such powers as indicate a personal confi- dence reposed in the trustee ; powers of this descrip- tion canmot be exercised by any but the original trustee, unless the terms of the instrument creating the trust admit of their exercise by those upon whom the trust may subsequently devolve (6). The question whether the class of powers denominated discre- can new trustees ex- tionary powers may be exercised by a trustee, ap- erase discre- pointed by decree or order of the Court of Chancery, powers ? was much debated before the recent Act. For ex- ample, where the trustees appointed by a marriage settlement were enabled, by the terms of it, to execute a power of sale : the settlement contained no power of appointment of new trustees, and new trustees having been appointed by the Court, it was held that they could not execute the power (c). On the other hand, where the instrument creating the trust enabled the trustees or trustee for the time being, at their discre- tion, to make payments for the benefit of one or more children, it was held that trustees appointed by the Court might execute such discretionary powers (d). (V) Cole V. Wade, 16 Ves. 47; Creme v. Bielten, 4 Ves. 97. (c) Newman v. Warner, 20 L. J. 654; 1 Sim. N. S. 457. {d) Hartley y. Bartley, 3 Drew. 384. In appointing new trustees, the Court of Chancery will not delegate to them the power of appointing successors. Solder v. Barhin, 11 Beav. 594 — oTerruling former decisions. This point is not now of much importance, as the Trustee Act affords summary relief in all cases of vacant trusts. 64 TRUSTEE ACT. Power to vest lands, stock or chose in action. Liability of old trustees. It seems, however, to be now clear that the Court is inclined to hold that all new trustees appointed by it may exercise such powers as are fairly incident to the office (e). Few questions of this kind can hereafter arise, as it is provided by Lord Cranworth's Act (f), that every trustee appointed by the Court, whether before or after the passing of the Act, shall have the same powers, authorities and discretions, and may in all respects act as if originally nominated a trustee by the instrument creating the trust. The Court is enabled, upon appointing any new trustee or new trustees, either by the same or a subse- quent order (^), to direct that the trust estate shall vest in such new trustee or new trustees (s. 34). It is now settled that under this section, where new trustees of a settlement are appointed by the Court, the settled estate may be vested in them, jointly with a continu- ing trustee, although doubts were at one time enter- tained as to whether this case was within the sec- tion (A). Section 35 confers a like power of vesting the right to caU for a transfer of stock, or the right to recover any chose in action. Section 36 declares that the liabihty of former or continuing trustees is to remain unaffected by any new appointment imder this Act. (e) Byam y. Byam, 19 Bear. 66. (/) 23 & 24 Vict. c. H5, a. 27. (g) The trustees may be appointed iirst in a suit, and after- wards the vesting order may be made. Me Suglies, 2 Hem. & M. €95. (A) Smyth v. Smyth, 3 Drew. 72 ; 3 Eq. E. 127. TEUSTEB ACT. 65 The application to the Court, under the foregoing who may sections, may be made by any person beneficially in- terested in the trust property, whether under disability or not, or by any person duly appointed as trustee of such property (s. 37). The meaning of the words "beneficially interested," in this section, was consi- dered in a recent case (i), where copyhold property had been sold in lots after the admission of the infant heir of a deceased copyholder had been duly made. Under these circumstances, it was held that the appli- cation for a vesting order was properly made by a purchaser who had lodged his purchase-money in court. It was further ordered that the costs of the order should be borne by the vendors, and should be paid out of the purchase-money of the particular lot, and not out of the general fund. The power of going before the Master with a state- sects, ss, 39. ment of facts, in the first instance (k), was an impor- f„™°t°4 tant relaxation of equity practice when the Act passed. ^^ ^^davit. It is now immaterial, as no new business is sent before the masters, and applications are made before a judge at chambers, under the existing procedure. After the master's certificate was obtained, application might be made to the Court (on motion) for the order {l). But since the abolition of the master's offices, the simpler alternative procedure (under ss. 40 and 41) has (i) Ayles v. Cox, 17 Bear. 584. See Paterson v. Paterson, 35 BeaT. 506. (Ji) Section 38. This section and section 39 are now practi- cally obsolete. (I) Section 39. 66 TRUSTEE ACT. Order may be made in suit. Orders con- clusive evi- dence of statements. Charity trusts. been adopted. According to the existing practice, a petition may, in the first instance, be presented to the Court, supported by affidavit of the facts (ra) ; and on the hearing of such motion or petition, the Court may direct such inquiries as it may think fit, or may direct such motion or petition to stand over for further evi- dence, or in order that notice may be served upon any person or persons, as the Court may direct (o). The Court may dismiss any such motion or petition, with or without costs {p), and whenever in a cause or matter pending in Chancery, the facts necessary for an order under this Act shall appear sufficiently proved, the Court may, either at the hearing of the case, or of any petition or motion therein, make an order under this Act {q). Orders made under this Act, founded on certain statements, are to be conclusive evidence of the matter so alleged ; without prejudice to the power of the Court to direct a reconveyance or reassignment, and to direct payment of costs, where the order shall have been improperly obtained (r). There is nothing in the former part of the Act to exclude charity trusts from its operation ; since, how- (») Section 40. (o) Section 41. (p) Section 42. (j) Section 44. (r) Section 43. An order may be made in a suit without petition. Wood v. Beetlestone, 1 Kay & J. 213; Collard v. Roe, 4 Jnr. N. S. 431 ; 4 De G. & J. 525; and see 9 W. R. 428, 860. TRUSTEE ACT. 67 ever, a special clause (s) relates exclusively to this class of trusts, it may be assumed that, by whatever means ne-w trustees of charities are appointed, this section will be extensively made use of, for vesting in them the charity estate. It is by section 46 enacted that no lands, or other no escheat o( *' trust pro- property, held upon trust, shall escheat, or be for- P^rty. feited, by reason of the attainder or conviction of the trustee ; but this is not to prevent the escheat or for- feiture of property so far as relates to any beneficial interest therein of the trustee (s. 47). The Court is enabled, in any suit, to make a decree in the absence of any person who is a mere trustee, and not otherwise interested, on proof that he cannot be found, but no beneficial interest is to be affected by a decree so made (t). The Lord Chancellor may postpone making any commission order on a petition concerning a person of imsound or suit may be directed. mmd, until the result of a commission de lunatico m- quirendo shall be known ; and in any petition under this Act the order may be postponed until the right of the petitioner shall have been declared in a suit duly instituted for that purpose (u). These sections provide Summary procedure for cases in which the summary mode of proceeding, not suited for all cases. introduced by the previous sections, may seem inap- plicable, and the Court frequently refuses to act («) Section 45. As to the appointment of trustees of charities, see Chapter VIII. (t) Section 49. See W'esthead v. Sale, 6 W. K. 52. (M) Sections 52, S3. 68 TRUSTEE ACT, without a more solemn and complete investigation of doubtful cases. Thus, where an application was made to appoint a trustee in the place of a person alleged to be incurably unsound in mind, although it was proved that he had no personal interest, Lord Cranworth, C, reflised the application, on the ground that the interests of the lunatic could not be sufficiently protected on an ex parte application, and the petitioner was directed to proceed by bill or claim in the usual manner (x). ''"?'''il"°° The concluding sections define the jurisdiction of under the ^ •* Trustee Acts, ^j^g Court : the powers given by the Act are to extend to aU property within Her Majesty's dominions, except Scotland (y). Accordingly, where the trustees of certain estates in Canada were dead, and the heir at law of the survivor of them was out of the juris- diction, the Court made an order vesting the legal estate in the lands in the party beneficially entitled (2;). And in another case the Court made an order vesting lands in Ireland (a). It is enacted by sections 55 — 57, that the powers and authorities given to the Court of Chancery, and to the Lord Chancellor (in lunacy), may be exercised by the Court of Chancery, and the Lord Chancellor of Ireland respectively, with regard to aU property in Ireland. A ti-ustee having been ap- pointed in the place of a lunatic trustee, an order was {so) Be Collinson, 3 De G. M. & G. 409; 21 L. T. Rep. 81; and see JBs Bwt, 9 Ha. 289. (^) Sections 54, 56. («) Re SchofieU, 24 L. T. Kep. 322. (a) Be Bemitt, 6 "W. E. 637. TRUSTEE ACT. 6J made by the L. C. (in lunacy) vesting the estate, but excepting such parts as were in Ireland, as it was held that the vesting order, in such a case, should be made by the Court in Ireland (b). The Trustee Act Extension (c) was introduced for The Trustee the purpose of supplying some deficiencies in and en- tension. larging some of the powers of the First Act. As the two are incorporated, and are to be read as one Act, it has been thought advisable to notice several of the clauses in connexion with those actions of the First Act to which they relate. The Extension Act contains, in addition, a clause enabling the Court to appoint new trustees in the place of persons convicted of felony, and by order to vest the trust estate in such new trustees (d). The Lord Chan- cellor is empowered to make orders of this description in his jurisdiction of lunacy (e), and finally, convey- ances, &c., having been to some extent superseded by vesting orders under the Act, it is enacted for the pro- tection of the revenue, that every order having the eiFect of a conveyance or assignment of lands, or a transfer of stock transferable only by deed, shall be (V) In re Davies, 3 Mac. & G. 278. (c) 15 & 16 Vict. c. 55 — in the former part of this chapter referred to as the " Second Act." ((Z) Section 8. (e) Section 10. As to the jurisdiction of the Lords Justices, see He Pattinson, 21 L. J. Ch. N. S. 280; and 15 & 16 Vict, c. 87, o. 16. No such power is given to a provincial Court of Chancery. Me Ormerod, 7 "W. E. 71. 70 TKUSTEE ACT. chargeable with stamp duty, and stamped accordr ingly (/)■ Where circumstances render it desirable to take ad- vantage of the important powers conferred on the Com't by the Trustee Acts, the following points should be carefully attended to : — Application (1) Applications to the Court should be made as its directed by directed by the Act. Where the facts of the case are tlie Act. in a small compass, and no difficulty appears, it will be sufficient to apply on motion. Where the fact? are numerous, and the case complicated, a petition should be presented. If a bill be filed for the appointment of new trustees, where a petition would have sufficed, the plaintiff will have to bear the costs (^). On the same principle, the costs of a motion only were allowed to confirm a certificate obtained under section 38 (A). Groundea on , (2) Care should be taken to proceed under the the proper , /^ i a t j i ?■ y section. section oj the Act applicable to the circumstances oj the case. Great inconvenience has arisen from appli- cations under wrong sections. In one instance the Court refused under the 10th section to vest the trust estate in a new trustee, together with a continuing trustee ; applications for such an order have since been made under section 34, with success (i). (/) Section 13. {g) Tliomas v. Walker, 18 Beav. 521. (h) 19 L. T. Eep. 9. (i) In re Watts, 9 Ha. 106; Smith v. Smith, 3 Eq. E. 127; 3 Drew. 72. See Morgan's Chancery Orders, passim. An COUNTY COURTS. 71 Courts. Some years after the passing of these Acts, jurisdic- jurisdiction tion in equity was conferred on the County Courts, county 28 & 29 Vict. c. 99 enacts (s. 1, par. 5), that in all proceedings under the Trustee Acts or any of them, in which the trust estate or fund to which the proceed- ing relates does not exceed in amount or value the sum of £500, the County Court shall have all the power and authority of the Court of Chancery. It will he seen hereafter (Chap. VI.) that the County Courts have also had jurisdiction under the Trustee Eehef Acts conferred upon them. order should by its date appear to have been made subsequently to the production of the necessary evidence. Me Saveloch's Trust, 11 Jur. N. S. 906. The registrars in Chancery will not pass any order made under the Trustee Act, 1850, or the Trustee Extension Act, or the Transfer of Land Act, 25 & 26 Vict. c. 53 (under which Act vesting orders of registered land may also be made), which shall have the effect of a conveyance or assignment of lands or a transfer of stock, until the same be duly stamped as required by law. The officers of stamps will at any time stamp an order after it is written, and before it is passed by the registrar. (Beg. Office, Dee. 19, 1862. The practice is the same in Ireland. ) The Landed Estates Court in Ireland has all the powers of the Court of Chancery as to removing trustees, making vesting orders, &c., 21 & 22 Vict. c. 72, s. 66. ( 72 ) CHAPTEE IV. Duties of the oflace must be jointly performed. Fallacy of " acting trustee." Conse- quences of delegation. OF THE INCIDENTS AND LIABILITIES OF THE OFFICE OF TRUSTEE. One of the main points of difference between the office of executor and that of trustee is, that while the former can legally do many acts affecting the estate, without the concurrence of his co-executors, the trustee has no such power, but must, in conjimction with his co-trustees, fulfil the duties of the office. It frequently happens that one of several trustees acquires a more minute knowledge of the circumstances of the trust, takes a greater interest in it, and is by his co-trustees, as well as by the cestuique trust, looked upon as the " acting trustee." This is especially likely to happen where one of the trustees is a man of legal education, or of known aptitude for business. Perhaps there is no more dangerous fallacy than that involved in the com- mon expression " the acting trustee." All trustees WHO HATE accepted THE TRUST ARE CONSIDERi^p AS " ACTING TRUSTEES," and they have no right to dele- gate their duties to any one of their number. The evasion of duty, however well-meaning in itself, consti- tutes a breach of trust, which has in many instances been severely visited on the non-acting trustees. DELEGATION. Many instances might be cited of tlie application of this rule. It is sufficient to mention a case where two trustees, appointed by a settlement containing the usual power for varying securities, joined in a power of attorney under which stock was sold out, and the produce placed to the account of one of them : This act was held by the Lords Justices to be a breach of trust ; and the trustee who admittedly received no part of the fund was ordered to bring the whole amount into court (a). " Trustees who take on themselves the management of property for the benefit of others have no right to shift their duty on other persons ; and if they do so they remain subject to responsibiUty towards their cestuisque trust for whom they have undertaken the duty" (6). But a trustee is of course justified in delegating any duty in conformity with an express direction or permission given by the terms of the trust (c). It is usual to find in trust deeds an indemnity clause. Effect of i demnity or proviso that no trustee shall be answerable for the clause. acts, receipts, or defaults of his co-trustee. This in- (fl.) Wiglesteorth v. Wiglesmorih, 16 Beav. 269. See also Langford v. Gascoyne, 11 Ves. 333; Sooth y. Booth, 1 Beav. 125; Clottgh V. JSond, 3 My. & C. 490; Jlanbrn-y v. KirUand, 3 Sim. 265 ; Tndch v. Lamprell, 20 Beav. 116; Thompson v. Mnoh, 22 Beav. 316; Cornel v. Oatcombe, 27 Beav. 568; Eai:es V. Sickson, 30 Beav. 136. (V) Lord Langdale in Turner v. Carney, 5 Beav. 517. (c) Kiltee v. Sneyd, 2 Moll. 199; Wilkins v. Hogg, 3 Gife. 116. V. E 73 INDEMNITY CLAUSE. demnity clause cannot, however, be relied on as afford- ing any protection to the trustee against the conse- quences of a breach of trust ; nor will a Court of Equity, in dealing with a breach of trust, regard the presence or absence of such a clause (d). Although the presence or absence of this clause is really an immaterial circumstance, it is provided by Lord St. Leonards' Act (e) that every instrument creating a trust shall be deemed to contain a clause (similar to the usual trnstees' indemnity clause), ren- dering a trustee liable only for such money and other property as shall come into his hands, notwithstanding his having signed any receipt for the sake of con- foiTnity ; and rendering one trustee accountable for his own acts only, and not for the acts of another trustee or of any banker, &c. with whom trust moneys may be deposited, nor for any other loss unless incurred through his wilful default. The protection afforded by an indemnity clause to executors is very slight, as the setting apart of a sum to meet a particular legacy or bequest constitutes them trustees of that fund, and as such, subject to all the rules affecting trusteeship. In a late case, executors having assented to a specific bequest, were held to be (_d) Williams V. Nixon, 2 Beav. 472; Haniury v. KirMand, 3 Sim. 265; Pridey.Fooks, 2 Beav. 430; Brvrniridgey.Brum- ridge, 27 Beav. .5; Behden t. Wesley, 29 Beav. 213. (e) 22 & 23 Vict. e. 35, s. 31. The receipt of trust money by a person authorized by the trustees to receive it as agent, binds the trustees, and discharges the person making the payment from liability. RoTiertson v. Armstrong, 28 Beav. 123. INDEMNITY CLAUSE. 75 trustees as completely as though the fund had been duly assigned to them on express trusts ; and one of them having allowed his co-trustee to receive the money, claimed the benefit of an indemnity clause in the vsrill, which provided that no hability should be incurred by reason of the acts, &c. of a co-executor ; — this was overruled, and he was declared liable for where there has been no the breach of trust (f). Where the act of one trustee breach of ^^ J trust, trustee does not amount to a breach of trust, his co-trustees ^™i,"|"^j will not be visited with the consequences of it, even ^"^^^ ™'y- though there be no indemnity clause in the instrument creating the trust {g'). As one trustee is not (except under very special Trust moneys should stand circumstances) justified in allowing his co-trustee to to joint account, retain the trust fund in his hands, or even to receive payment of the proceeds of a sale of trust property (A), and as a sum of money cannot possibly be in the pos- session of two or more persons at the same time, it follows that the only course that can be adopted with- out risk, is the payment of such trust funds as cannot be either invested, or applied for the purposes of the trust, into a bank to the joint account of the trustees. It will appear hereafter (i) that a trustee is not, with- out some special reason, allowed to retain moneys in his hands uninvested, and where a trustee is not jus- (/) Dix V. Bwrford, 19 Bear. 409. (^) Leigh v. Barry, 3 Atk. 584. (A) Lincoln y. Wright, 4 Bear. 427; Trwtch v. Lamprell, 20 Bear. 116. (i) Page 95. E 2 CUSTODY OF FUNDS. tified in doing so, it follows that lie is equally in default in committing the trust fund into the hands of a banker. Circumstanoes, however, will sometimes render it ne- cessary that a sum be kept available for current ex- penses, or for contingent payments, and it is then alone that trustees wiU be justified in making use of the convenience afforded by a bank, nor will they, in such cases, be held liable for any loss that may accrue by the failure of the bank. Two cases may serve to show how far special circumstances will exonerate the executor or trustee in case of loss by such failure. In Moyle V. Moyle (k) moneys had been left for some years in a banker's hands, and loss arising therefrom, Lord Lyndhm-st, C, considered that the fact of there being contingent payments to meet (urged as an excuse by the trustee) constituted the greater reason for making the fund productive by investment, and held that a breach of trust had been incurred. In Johnston V. Newton (l), funds deposited with a banker had been lost by his failure, some weeks before the expiration of the twelve months allowed by law to an executor for distribution of the fund : Wood, V.-C, held that, under these circumstances, the executor was not ac- coimtable for the loss, and significantly remarked that " it was difficult enough to induce persons to act [as trustees], but if the law were to be as contended for by the plaintiff, it would be quite impossible to induce any one to accept so onerous an office." (S) 2 RussoU & M. 710, reversing the decision of the M. K. (Z) 11 Ha. 160; 1 Eq. Eep. 512. DIVIDENDS, ETC. ' ' Althousli one of several trustees cannot, with a due £*f *"ff regard to tlie security of his colleagues, be allowed to Jj^naTof"«l receive funds arising from the sale of trust property or other principal funds, it would seem to be allowable for rents, dividends, or other annual proceeds arising from the trust property to pass through the hands of one, without involving the others in liability in the event of loss (m). Again, in charitable trusts, the act of the majority will be deemed sufficient, and the minority will not be held liable. These are exceptional cases in which obvious convenience and necessity are held to warrant a deviation from the general rule (w). The result of the modern cases on this subject may perhaps be expressed as follows : — Wherever a pru- dent and cautious man would, in the ordinary course of business, leave money for a temporary purpose in the hands of another person, it wiU, under similar circum- stances, be allowable for a trustee to commit trust moneys to the charge of a banker, or agent, or to his co-trustee in the character of agent, and he will not be accountable for any loss that may ensue. The de- how far gree of caution that would be exercised by a prudent jusu^I^^^ man with regard to his own affairs is expected of a trustee in dealing with the affairs of his cestuique (m) Williams v. Nixon, 2 Beav. 472. One trustee may be employed by his colleagues to hold the deeds and receive the rents. Cottam v. E. C. Railway Company, 1 Job. & Hem. 243. ('») " Necessity, which includes the regular course of busi- ness, will exonerate," per Lord Cottenham, L. C, in Clougli v. Bond, 3 M. & C. 497, et vide Edmonds v. Feahe, 7 Beav. 239. CUSTODY OF trust (o). On this principle a trustee may, for a tem- 'porary purpose, lay out the funds in Exchequer Bills, or having funds to transmit to a distance, he mil be justified in doing so through the medium of a bank of established reputation, or in taking the bills of persons in good credit, made payable at the place where the money is to be forwarded, and he will not be held accountable for any loss that may foUow (p). StiU less will he be chargeable with loss occasioned by a rob- bery, against which no amount of foresight could have guarded {q). But if the money ought to have been withdrawn, and placed in some secure investment, the trustee will be liable (?•). The trustee must be careM as to the solicitor or agent whom he employs in relation to trust property ; for if there be a fraudulent misap- propriation he may have to make good the loss («). When it becomes necessary to lodge trust money in bank, the trustee should be careful to lodge to the separate credit of the trust (t) ; for trust money should, under all circumstances, be ear-marked, so as (o) Jones T. Lewis, 2 Ves. 241 ; Hsop. Belchier, Amb. 219 ; Massey v. Banner, 1 Ja. & W. 241. {p) Exp.SelcMer; Iiout7i\.Son)eU,SVes.5Gi; Matthews V. Brise, 6 Bear. 239. (iw '° <=^- tenants for hfe of the fund (m). In a late case, the plaintiff, who had received interest at the rate of 5 per cent, on an investment which she knew to be an im- proper one, and represented to the Court as being so, was ordered to refimd the excess of interest received by her in former years beyond 4 per cent. (n). For the purpose of avoiding a multiplicity of suits, trustees have in some instances been allowed, by means of an inquiry in the suit instituted against them for breach of trust, to recover against the life interest of some of (J) Browne v. Mavnsell, 1 Ir. Jur. N. S. 197. (m) M'OachenT. Dem, 15 Bear. 84; Baynardiy. Woolley, 20 Beav. 583 ; Bate t. Hooper, 5 De G. M. & G. 338 ; Baby V. Bideltalgh, 7 De G. M. & G. 108; 3 Eq. E. 901. In the last case the tenants for life had not approved of the particular investment which constituted the breach of trust. It clearly- appeared, however, that the investment on improper securities was owing to their solicitations. (n) Baynard v. Woolley, 20 Bear. 583. 92 LIMITATION or SUITS. their cestuisque trust, sums of money that have been overpaid (o). The consequences of acquiescence in a breach of trust by the cestuique trust will be consi- dered hereafter (p). In express The possession of a trustee is, as between him and trusts, lapse ^ of time no lijs cestuique trust, considered the possession of the latter, and consequently it cannot be adverse within the meaning of the Statute of Limitations. Where the trust is subsisting, and not determined by a final settlement of accounts or otherwise, no lapse of time can deprive the cestuique trust of his equitable remedy against the trustee. The Statute of Limitations, 3 & 4 Wm. IV. c. 27 (sec. 25), provides that time shall not run in the case of an express trust, unless there be a conveyance to a purchaser for valuable consideration, when it rims from the time of such conveyance. Li trusts arising from construction or operation of law the Courts of Equity, as far as possible, adopt the rules applicable to legal remedies. Although not within the letter of the Statutes of Limitations, equitable remedies are con- sidered to be within their spirit and meaning {q). Honorary ThE OFFICE OF TKXJSTEE IS AN HONOEAEY OFFICE : nature of the (o) Sood T. Clapham, 19 Beav. 90. (^) See next Chapter. {q ) Per Lord Eedesdale in Hovenden v. Annesley, 2 Scho. & L. 633 ; yi&e Beckford V. Wade, 17 Ves. 97; Cholmondely v. Clinton, 2 Ja. & W. 139. In the case of an express trust, where the person in possession of the trust estate is bound to pay off charges on the estate with interest, the remedy as between trustee and cestuique trust is unaffected by the Statutes of Limitation. Gyles v. Ch/les, Dru. Kep. t. Napier, 259, and cases there cited. office. HONORARY OFFICE. 93 No rule of equity is better established or more strictly adhered to, than that which prevents a trustee from deriving any profit from the trust. This rule is based upon a principle of natural justice : — " That no person The principle CHARGED VS^ITH THE PERFORMANCE OF A DUTY SHALL PLACE HIMSELF IN SUCH A POSITION AS THAT HIS INTERESTS AVILL CONFLICT WITH THAT DUTY (r). It is on this principle that a trustee for sale cannot himself become the purchaser of the trust estate ; — that a trustee of a leasehold property obtaining a renewal of the lease will be deemed to have obtained it for the benefit of his cestuique trust; — and that a trustee buying in for less than the nominal amount, any demand to which the trust estate is liable, will not be allowed to retain the benefit of it («). In all these cases the trustee is necessarily so circumstanced that he has peculiar means of acquiring knowledge, and opportunities of acting, all capable of being turned to profitable account ; and in order that this knowledge, and these opportunities, may be used for the advantage No profit (r) Per Lord Cranworth, in Broughton v. Brnughton, 5 D. M. & G. 160. (s) Fox V. Machreth, 2 Cox, 320; Keech v. Sandford, Ca. Ch. 61; 1 Le. Ca. Eq. 32, 105; Foslrool v. Balgwy, 1 Myl. & K. 226 ; Barton v. Hassard, 3 Dr. & W. 461 ; " One of the most firmly-established rales is, that persons dealing as trustees and executors must put their own interest entirely out of the question, and this is so difficult to do in a transaction in which they are dealing with themselves, that the Court will not inquire whether it has been done or not, but at once says that the trans- action cannot stand." Per Lord Eldon, in Cooli y. Collmgridge, Jac. 621. HONOKARY NATURE of the cestuique trust, the law prohibits him from de- riving from^them any personal advantage. A trustee is not allowed to profit directly or indirectly by the trust. Where a retiring trustee received a sum of money from his successor in consideration of his re- tirement, this sum was decreed to belong to the trust fund (s). If a person requested to act as trustee is not prepared to give his services gratuitously, he should decline the office at once. There is, however, nothing objectionable in his stipulating for a fixed per- centage on rents and other moneys to pass through his hands ; and this, if expressly authorized by the instru- ment creating the trust, may be charged. It would be better in case of trusts of house property, for example, where much trouble is occasioned, if some such allow- ance were always provided. No right or privilege incidental to the trust estate, if it possess any pecu- niary value, is allowed to be enjoyed by the trustee, — it must be made productive for the benefit of those whose interests the trustee is bound on aU. occasions to prefer to his own. Lord Eldon directed that a right of sporting over the trust estate, if it possessed any pecuniary value, should be let — the trustee might appoint a gamekeeper for the preservation of the game, if necessary, but not for the purpose of his own pleasure (t). And in a much later case, where an advowson had been bequeathed on trusts (s) Sugden v. Crosland, 3 Sm. & G. 192; and see Vaughton, V. jVoJZe, 30 Beav. 34, 39. (t) Weii V. Shafteslury, 7 Ves. 480. OF THi: OFFICE. 95 for sale, and it then fell vacant, the right of nomination was held to belong, not to the trustee, but to the persons beneficially interested (u). It follows, from the honorary nature of the ofiice, that a trustee (or any person occupying a fiduciary position — as a soUcitor or assignee), if he purchase up at an undervalue a debt or obligation affecting the pro- perty, wiU not be allowed the benefit of his bargain (v) — unless the cestuisque trust deliberately refuse to avail themselves of it (x). On the principle above stated, it is not allowable for interest will be charged a trustee (or an executor, for in these particulars both <" money retained, offices are governed by the same general rules), to retain in his hands money which ought to be invested in Government securities, or otherwise applied for the benefit of the cestuisque trust. Where the trustee is not directed by the instrument creating the trust to apply sums of money in his hands in any particular way, he is bound, nevertheless, to secure to his cestuisque trust that annual return for their money which is af- forded by the Government 3 per cent. Consols (y). A trustee retaining moneys in his hands unnecessarily, is nateotin- , . , . terest in the liable to be charged with interest at a rate varyme discretion of •' ° the Court. according to the circumstances of the case. In the or- dinary case of a trustee not directed to apply funds in (m) Johnstone v. Baher, G De G. M. & G. 439 ; see Coohe v. Cholmondely , 3 Drew. 1. («) Pooley T. Quilter, i Drew. 184 ; 3 De G. & J. 827 ; In re Johnston, 7 Ir. Jur. N. S. 36. (») JBarmell v. Harwell, 34 Beav. 371. (^) See next Chapter. INTEREST CHARGED Money lodged to credit of trustee. any specific mode of investment, and omitting to make them productive, the Court usually requires interest at the rate of 4 per cent. («). Greater severity has been exercised in several cases where the retention has been in express violation of the trust, and the trustee has been guilty of more than mere negligence ; in such cases the rate of interest charged has usually been 5 per cent. (a). In extreme cases, where grossly improper conduct has been established against the trustee, as, for instance, in making a profit out of the trust funds, in the face of an express trust to accumulate and invest, 5 per cent., with annual or half-yearly rests in the account (or compound interest), has been decreed (6). A trustee is considered to employ trust moneys for his own purposes if he lodge them to his credit at his banker's ; and more especially if he be a trader, on the ground that an aug- mented balance will in some degree assist in maintain- ing his credit, and an indirect benefit be thus obtained by this use of the trust funds (c). (z) Tebis v. Carpenter, 1 Mad. 290; Roclie v. Harte, 11 Ves. 60 ; Mousley v. Carr, 4 Beav. 49. {a) Piety v. Stace, i Ves. 620; Pocock y. Reddington,5 Ves. 794 ; Craehett v. Bethune, 1 Jac. & W. 586 ; Seathoote v. Hulme, ib. 222 ; Jones v. Foxall, 15 Beav. 392 ; Enott r. Cottee, 16 Beav. 77. (J) Raphael v. Boelim, 11 Ves. 92; 13 Ves. 407, 590; Walker v. Woodward, 1 Russ. 107. In the latter case consider- able profits were admitted to have been made, and the investiga- tion of them being waived on account of the difSculty of making it. Lord GifEord directed five per cent, interest to be charged, with aimual rests in the account. (c) Ex parte Hilliard, 1 Ves. jun. 89 ; RocTte v. Harte, 11 Ves. 60. RATE OF INTEREST. 97 The rules laid down as to the rate of interest with Ti>e mie as to interest, which a trustee is to be charged under given circum- stances, have long been arbitrary, and not altogether reconcilable. They were reviewed by Lord Cran- worth, C, in the case of the Attorney- General v. Alford (d) : his Lordship, in his judgment, asked — "What is the principle by which, in the case of executors and trustees having money in their hands which they ought to invest and do not invest, the Court is regulated in dealing with them in respect of interest, whether in charging them with interest at 4 or 5 per cent., or with compound interest at 5 per cent., or, under some circumstances, in making them liable for the amount of consols which would have been forth- coming if they had invested the fund properly ? " His Lordship, after reviewing the cases, said — "What the Court ought to do, I think, is to charge him only with the interest which he has received, or which it is justly entitled to say he ought to have received, or which it is so fairly to be presumed that he did receive, that he is estopped from saying that he did not receive it." Accordingly the defendant in this case, having re- tained trust funds in his hands for some years imin- vested, and it not appearing that he had made any profit by so doing, was charged with simple interest at 4 per cent. The result of the cases appears to be, that a trustee {d) 4 D. M. & G. 843 ; varying decree of Stuart, V.-C. 2 Sm. 6 G. 488 ; see also the very recent case of Blogg v. Johnson, L. B. 2 Ch. App. 225. tr. F KATE OF INTEEEST. trust entitled to profit made by use of trust fund. Money used in trade. will usually be charged with interest at 4 per cent, upon uninvested balances, except in the following cases, where the higher rate will be charged : — Where he might have received more ; where he actually has received more ; and where he must be presumed to have received more. And in case of a breach of trust or gross misconduct, the old rule that 5 per cent, will be charged must be regarded as stUl in force (e). If trust funds are so employed as to yield a higher rate of interest, the trustee wiU, of course, be Hable to account to his cestuique trust for the whole. Whefe funds have been made use of by the trustee, in a trade or speculation of his own, the usual course has been to charge him with interest at 5 per cent., that being considered the usual rate of interest reserved on money used in commercial loans. AH the former decisions bearing upon this point were considered by Lord Brougham, C, in a case where a testator directed that, in case his business were carried on, the profits of it were to be added to the rest of his property, and con- sidered as part thereof. The trustees carried on the business, but when called on to account for the profits, refused to do so, and it was contended on their behalf that they were liable only to payment of the principal, vrith interest at 5 per cent. His Lordship, however, held that they were liable to accoimt for the profits ac- (e) Fenny v. Avison, 3 Jur. N. S. 62 ; Mayor of Berwick v. Mwray, 7 De G. M. & G. 519 ; Townend v. Townend, 1 Giff. 212. The accustomed rate-of interest in Ireland is one per cent higher than in England. INQUIRY INTO PROFITS. i) tually made ; and in his judgment remarked upon the " clumsy and arbitrary method of allowing rests — in other words, compound interest — without the least re- gard to the profits actually realized,'^ and expressed disapproval of the decision in Raphael v. Boehm {/), " where compound interest was given, with a view to the culpability of the trustee's conduct, and not upon any estimate of the profits he had made by it"(g). It Either profit ,,.,,, -, -, . T ^^ interest IS now established, that under these circumstances the maybe claimed. cestuique trust may elect to 'have the accounts taken for the entire period, and will be entitled to the profits made upon the trust fund ; or, at his option, may claim interest at 5 per cent. (A). Profit does not often arise Difficulty oi from capital alone without regard to the skill and profits, exertions of the merchant ; and it has been decided that these circumstances will be taken into considera- tion, as well as the amount of capital employed (i). The difficulties in the way of ascertaining and appor- tioning the profits arising from money employed in trade are such as to render it prudent in ordinary cases for the cestuique trust to prefer a fixed rate of interest to an inquiry into the profits (A). (/) 11 Ves. 92 (Lord Eldon). (g) Docher v. Somes, 2 My. & K. 655 ; see Hohinson v. HoHnson, 1 D. M. & G. 257, per Lord Cranworth, L. J. (A) Heathcote v. JSulme, 1 Jac. & W. 122; Docker t. Somes, supra ; see Williams v. Powell, 15 Bear. 461; Wal- rond T. Walrond, 29 Beav. 586. (i) Willett V. BVmford, 1 Hare, 253. (A) Wedderlurn v. Wedderiurn, i My. & C. 41 ; Crosley t. f2 HONORARY NATURE On the principle above stated, it was very long since established that a trustee is entitled to no com- pensation for his trouble and loss of time (I). Nor is he allowed to charge for services rendered by him, professionally, in relation to the affairs of the trust. Thus, a trustee who is a solicitor is not permitted to charge more than costs out of pocket, for business done in connection with the trust (m). But if a trustee, being a soUcitor, makes an express stipu- lation before accepting the trust for the usual pro- fessional fees he will be entitled to them (n) ; he will, however, be limited to charges for strictly legal busi- ness (o). On the same principle a trustee, or any person in the position of a trustee, being an auctioneer, will be disallowed his commission and other charges Derby Gas Company, 3 My. & C. 428. Other cases as to charging interest under special circumstances, are SaltTnarsh t. Barrett, 31 Beav. 349 ; Sham t. Turiett, 14 Ir. Ch. Rep. 476. A trustee is bound to give information, and to produce his ac- counts to the eestuique trust, at reasonable intervals, Freeman T. Fairlie, 3 Mer. 43 ; Springett v. Dashwood, 2 Giff. 521, and cases there cited. Where the accounts between a principal and agent veere long and complicated, and no fraud could be charged against the latter, the Court in a recent case declined to charge him with interest on the balances in his hands, Turner v. Bnr- Unshari}, L. R. 2 Ch. Ap. 488. (?) ^oJmsora V. Pert, 8 P. "W. 249 ; Wms. Exors. 5edit. 1678; 2 Le. Ca. Eq. 182. (m.) Srougliton v. Sroughton, 5 D. M. & G. 161. (») Soitglas V. Arohbutt, 2 De G. & J. 148. (o) Harbin v. Darby, 28 Beav. 325. OP THE OFFICE. 101 (not being actual disbursements) for services rendered on the occasion of a sale of the trust estate (p). The exceptions to the rule above considered are Exception to the rule very few. Trustees managing estates m the West above stated Indies are allowed a commission on the amount of rents, &c. received by them, so long as thej are ac- tually present and employed in the management (q). Executors appointed in the East Indies are also allowed a commission of 5 per cent, on moneys passing through their hands. These allowances are made on the ground that the difficulty of obtaining efficient services at so great a distance, renders inapplicable the rule which, in this country, requires a trust to be fulfilled gra- tuitously. An executor who intends to avail himself of this right must, however, renounce any legacy that may have been given him by the will, as he will not be allowed to accept compensation provided by the tes- tator, in addition to that allowed by law (r). To the rule, depriving a trustee who acts as soli- costs of ITT solicitor- citor of all costs beyond actual disbursements, an ex- trustees. ception has been made in the case of one of several trustees, who acts as solicitor in defending himself and his co-trustees, in a suit instituted against (^) Kirkman v. Booth, 11 Bear. 273 ; Mathison v. Clark, 3 Drew. 3. {q) See 5 Ves. 834 ; 9 Ves. 254, et seq^. ; 2 Mer. 68 ; Den- ton v. Davy, 1 Moore, P. C. 15, 32. (r) Clietliam v. Lord Audley, 4 "Ves. 72 ; ' Freeman v. FaArlie, 3 Mer. 24. See Mattluws v. BagsTiam, 14 Beav. 123. SOLICITOR — TRUSTEES. them («). " If a solicitor, being a trustee, be brought in and made a party to a suit, owing to his comiexion with the trust, and the costs of the suit are not in- creased by any conduct of his own, there does not appear to be any reason why he should not be allowed his costs" {t). It is, however, clear that no profes- sional charges, except those incurred in defending a suit, will be allowed to a solicitor who is trustee : and this was so stated iu a later case (m), where the costs of a sohcitor, being one of two trustees, incurred in the administration out of court of a trust estate, were dis- allowed by the V.-C. and afterwards (on appeal) by the Lord Chancellor ; from whose judgment it may be concluded that the Court is not disposed to extend the exception in favour of solicitor-trustees {x). (s) Cradocli v. Piper, 1 Mac. & Gor. 664 ; 1 Hall & T. 617. {t) Sir G. Turner in Lincoln v. Windsor, 9 Hare, 158. (m) Broughton-v. Bron^Mon, 5 D. M. & G. 161; 1 Jur. K S. 966. (») The decision in Cradooh v. Piper is scarcely to be relied on. In a suit for administration, it appeared (on taxation) that one of the trustees was a solicitor, and that his defence had been conducted by his partner, and the Taxing Master allowed hiru only costs out of pocket. This ruling was affirmed by Sir J. Parker, V.-C, who said — " If ordinary costs were allowed in any case where a solicitor acts in a suit for himself alone, or what is the same in effect, acts for himself alone by his partner, it would be to destroy the rule altogether." — Lyon v. Boiler, 5 De G. & S. '622; and see Manson v. Baillie, 2 Macq. H. L. Ca. 80. A solicitor in partnership with a solicitor-trustee, although not allowed to charge for time and trouble on behalf of the firm, may however make the usual charges, if by special agreement the proceeds are to be carried to his own credit and not to that of HONORARY OFFICE. 103 If the deed or will creating the trust, in distinct compensa- , tion may be terms, authorize an allowance to the trustee for his authorized by deed creating care" and trouble, either by way of commission on the trust. moneys administered by him, or by a fixed annual stipend or otherwise, he may of course avail himself of the proviso (y). Where the trust is likely to in- volve much loss of time, a trustee should stipulate for a proper allowance before accepting it ; for after Or stipulated acceptance of it, any bargain with the cestuique trust acceptance of will be looked upon as suspicious, and although not necessarily invalid, the circumstances attending it will be severely scrutinized. " The Court looks upon trusts as honorary, and a burden upon the honour and conscience of the person entrusted, and not undertaken upon mercenary views ; and there is strong reason, too, against allowing anything beyond the terms of the trust, because it gives an undue advantage to a trustee to distress a cestuique trust; and therefore this Court has always held a strict hand over trustees in this particular" (z). A solicitor undertaking the office of a Agreement by solicitor- the paiinership ; Clach v. Carlon, 7 Jur. N. S. 441. "Where one of three trustees, being a solicitor, received trust money, and neglected to apply it properly, the Court .refused to regard him as the agent of his co-trustees, and held that they, having joined in the receipt merely for the sake of conformity, were not accountable for the loss. In re Fryer, 3 Kay & J. 317. ( y) Willis V. KiVble, 1 Beav. 559 ; Re Sherwood,, 3 Beav. 341 ; Bairibrigge v. Blair, 8 Beav. 597 ; Bouglas v. Archiutt, 2 De G. & J. 148. (z) Per Lord Hardwicke, in Ayliffe v. Murray, 2 Atk. 58 ; and see Barrett v. Hartley, L. E. 2 Eq. 789. SPECIAL AGREEMENTS trustee should make a special agreement for payment of his full prof essional charges incidental to the exe- cution of the trust : and it will be a proper precaution to have the eestuique frwsi informed of his strict rights under the rule of equity above referred to, by a sepa- rate professional adviser (a). Lord Langdale, M. R., refused to order taxation of a bill of costs paid to a trustee who had, before accepting the trust, signified his intention of charging full costs as between soUcitor and client, and had taken a retainer so framed as to provide for those costs ; and his Lordship laid great stress on the fact that the eestuique trust had been from the first aware of the rule of the Court, and had been informed of it by another legal adviser (6). The rule above considered has seldom been relaxed by the Court of Chancery, and then under very pecu- liar- circumstances. The principal instance is that afforded by Marshall v. Holloway, in which case Lord Eldon not only approved of an allowance to a trustee for his trouble, &c. for the future, but went so far as to direct an allowance for his past services. The circumstances were very special, and it was ad- («) To entitle the solicitor-trustee to sucli costs, there must be, in addition to a specific contract with the client, proof that the client is fully cognizant of his legal rights independently of the contract, and also cognizant of the effect of the contract upon such legal rights. Per Lord CJotteuham in Moore v. Prowd, 3 My. & C. 49. (J>) In re Wyche, 11 Bear. 209 ; see Stane$ y. Parlier, 9 Beav. 385 ; Todd t. Wilson, ib. 486. FOR REMUNERATION. 10 mitted on all hands that the trustee in question was the only person properly qualified for the ofiSce (c). In general it is requisite for a trustee who finds him- self called upon to fulfil duties of a laborious nature, without any provision having been made for compen- sating him for his loss of time, &c. to apply to the Court for relief before accepting the trust. After the burden of the trust has been accepted by him, he is not entitled to come to the Court, however arduous his duties may be : for he then has brought himself within the operation of the general rule, that a trustee {i. e. one who has accepted the obligation of the trust) is not entitled to compensation for personal trouble and loss of time (d). A trustee will, however, be reimbursed all charges ah reason- and expenses properly incurred in the execution of and ex- T 1 . ..,,,, penses will the trust ; and where circumstances require it, he will be auowea. not be prevented from employing the services of other (c) The decree was to the following effect : — It being alleged Decree, that the aid of the trustee was indispensable, from his knoM'- ledge of the testator's affairs, and he refusing to act longer in the trusts without recompense, it was referred to the Master to settle a reasonable allowance to be made to the trustee for his time, pains, and trouble in the execution of the trusts for the time past ; and the Master was directed to have regard to the legacy bequeathed to the said trustee. An inquiry was further directed, whether it would be for the benefit of the testator's estate that the trustee should continue to be a trustee under the will, and to receive a compensation for the future employment of his time and trouble. Mwrshall v. Sollomay, 2 Swanst. 432. (d) Broclisojpp T. Barnes, 5 Madd. 90 ; and see Saiiibrigge Y. Blair, 8 Bear. 595. r5 REMUNERATION persons at the expense of the trust fund. Although a solicitor himself, he will be at liberty to charge the trust fund with the cost of employing another solicitor in mat- ters connected with the trust ; and on aU points of difficulty he is justified in obtaining the opinion of counsel (e). In the same way an accountant, agent, or baihff may be employed at a moderate rate of remuneration, to perform, such duties as the trustee cannot reasonably be expected to perform in person (/). By delegating part of his duties under such circumstances, a trustee or executor will not necessarily disentitle himself to any remuneration that may have been provided by the instrument creating the trust. 'Thus, where the trust estate consisted of a large number of houses let to weekly tenants. Sir J. Leach, M.R., allowed the trus- tees to retain a small annuity given them for their ser- vices, as well as to charge the estate with an agent's salary, and remarked that a provident owner might well act in the same way, and that the labour of collecting these rents could not fairly be imposed upon trustees {g). Advances may be made by the trustee where they are manifestly attended with benefit to the trust, as for example, where head rents of house property have to (e) Fearns v. Toung, 10 Ves. 184 ; Macnamwra v. Jones, 2 Dick. 587. This follows fiom the nature of the trust, whether expressed in the instrument or not. Per Lord Bldon in Worrall V. Sarford, 8 Ves. 8. (/) New V. Jones, 9 Jann. Prec. 838 ; Weiss t. Dill, 3 My. & K. 26. (g) Willdnson v. Wilkinson, 2 Sim. & S. 287. TO AGENTS, ETC. 107 be discharged or premiums paid in order to keep up insurances. The trustee may repay himself all such advances out of the funds, or they will be allowed for on a settlement of accounts, with interest at 4 per cent. (A). By section 31 of Lord St. Leonards' Act (22 & 23 Trustees' re- •^ ^ imbursement. Vict. c. 35), every deed or wiU creating a trust shall be deemed to contain a clause authorizing the trustee to reimburse himself, or pay and discharge out of the trust premises, all expenses incurred in or about the execution of the trusts. But this clause cannot be said to enlarge the powers of reimbursement always annexed to the ofl&ce, and is therefore declaratory of the law. A trustee may accidentaUv derive an advantage Accidental from his trust under peculiar circumstances, viz. — want of title ■*■ in any other where, being himself at law owner of the estate, no person. person is existing who can establish a title to the beneficial interest. This question arose in the early case of Burgess v. Wheate (i). In that case lands were vested in A. and his heirs, upon trust, for B. and his heirs, and B. dying without heirs capable of inheriting, the Court held that the beneficial interest could not escheat to the Crown, there being a legal terre-tenant: and consequently the trustee was allowed to remain in possession until a better claimant should (h) Small V. Mng, 5 Bro. P. C. 72 ; "Wms. Exars. 5 edit. 1686. In Ireland 5 per cent. (i) 1 Eden, 177; and see the other cases cited Tudor, Le. Ca. Conv. 2 edit. 686? FAILURE OP THE appear. In such case the trustee ■will retain the estate merely for want of a title in any other person. As he has no positive right, but only a claim to hold in de- fault of any better claimant, a Court of Equity will not aid him in establishing his demand, although, as legal owner, he may doubtless obtain the assistance of a Court of Law (j). The rule governing cases of this description was considered in Rittson v. Stordy (A), where a testator had devised real estate in trust for an alien. The person who would have been entitled in the event of intestacy filed his bill against the trustees of the will and the Attorney-G-eneral (representing the Crown), for a conveyance of the estate to him by the trustees. It was held that the devise in trust failed, and did not enure for the benefit of the Crown (J), and that the trustee could not claim to hold for his own benefit. The Vice-Chancellor said, " The claim of the trustee to hold for his own benefit, by reason of the want of any title in the alien or the Crown, could only prevaU. from want of title in any one to enforce the performance of the trust. If the devise be in favour of the alien, like any other devise of an equitable in- (^') Burgess v. Wheats, 1 Eden, 177 ; vide 6 East, 431 ; 10 B. 85 C. 80 ; 3 Ves. 752. (7i) 3 Sm. & GifE. 230 ; 3 Eq. Kep. 1039 ; see also Oiislom r. Wallis, 1 Mac. & G. 506 ; Sarrom v. WadUn, 24 Beav. 1 ; Jones T. Noyes, 7 W. E. 21. (l) As to the claim of the Crovm to real or personal chattels on the death of cestnique trust without next of kin, see 4 Hagg. 213 ; 14 Sim. 8 ; 3 Ves. 424 ; 3 M7. & K. 492 ; Ellcock v. Mapp, 3 Ho. Lords Ca. 422. BENEFICIAL TITLE. 109 terest whick fails, it results to the person entitled to claim by descent, and on whom, according to law, the descent is cast. It is well settled by various cases, and recently by the decision in the House of Lords, in The rule. Ellcock T. Mapp {ni), that a trustee cannot claim to hold for his own benefit where the instrument which creates his estate expressly says that he is to hold as a trustee merely, if there be any person to whom, by operation of law, the beneficial estate results." A trustee should always, remember that his first and chief duty is to carry out the trust : and he is under no obhgation to look closely into the circumstances of its creation. He may assume that aU things were rightly done up to the time when he became connected with it, and that the trust was validly created (w). Nor is it any part of his duty to scrutinize the title of the trust property ; and if he should have any suspicion that the title is defective, he will not be justified in communicating it to any other person, who might set up a claim hostile to that of the cestuique trust. Trustees, who are soHcitors, are not only answerable special reme to the law as are other trustees, but they are especially soHciSr™ under the control of the court of which they are ofiicers. A solicitor who wilfully advises a breach of trust renders himself liable to be struck off the Roll (o) ; and a (to) 3 Ho. Lords Ca. 492. (w) Beddoes v. Pugh, 26 Beav. 407. The case may be dif- ferent if the trustee receive notice of a claim paramount to the trust. Neale t. Dames, 5 D. M. & G. 258 ; see pp. 156, 158, ^c)#. (o) Qoodmin v. Gosnell, 2 Coll. 457, see 462. CRIMINAL LAW AS TO solicitor -vrho himself commits a breach of trust, is still more liable to this penalty ( p) ; but the misconduct must be glaring before the Court will inflict it, as there is an imwillingness to apply the general jurisdiction of the Court to solicitors in the capacity of trustees {q). Prior to the year 1858 there existed no remedy against a trustee guilty of a fraudulent misappropria- tion of trust funds, except such as a suit in Chancery afforded. Statute 20 & 21 Vict. c. 54 {r), first ren- dered the fraudulent trustee and his heir and repre- sentative amenable to the jurisdiction of a criminal court. The CrimLual Law Consolidation Act, 24 & 25 Vict. c. 96, repealing the last-mentioned act, but re- enacting its provisions, enacts that whosoever being a trustee of any property shall, vrith intent to defraud, convert or appropriate the property of which he is trustee to or for his own use or purposes, or shall with such intent dispose of or destroy such property, he shall be guilty of a misdemeanor, and be liable to be kept in penal servitude for three years, or suffer such other punishment [by penal servitude or imprisonment, with or without hard labour, or by fine, as in sect. 75 of the act], as the court shall award. But no prose- ip) Thompson T. Finch, 25 L. J. Ch. 681 ; In re Chandler, 2 Jnr. N. S. 366 ; In re Sail, 2 Jur. N. S. 633. A solicitor who without being a trustee has assumed to act as one, is accountable on that footing for a breach of trust. Morgan v. Stephens, 9 Jur. N. S. 701. iq) Re Blanehard, 9 W. E. 647 ; 30 L. J. Ch. 616. (r) Repealed, but in substance re-enacted by 24 & 25 Vict. c. 96, ss. 80—86; FRArDtTLENT TETJSTEES. Ill cution under this act is to commence without the sanc- tion of the attorney-general ; nor, where civil pro- ceedings have been taken, without the sanction of tlie Court where the same are pending. No remedy at law or in equity is to be affected, nor is tlae act to preju- dice any agreement entered into or security given by any trustee having for its object the restoration or re- payment of any trust property misappropriated. A trustee is defined by the interpretation clause as a trustee on some express trust created by some deed, wUl or instrument in writing, and also the heir or per- sonal representative of any such trustee. Where a trustee paid a sum of trust money into his bankers, and then drew out nearly the entire, and paid a private debt with a part, the Court sanctioned pro- ceedings against him under this act («). (s) Wadham v. Rigg, 1 Drew. & Sm. 216. C 112 ) CHAPTEE V. Ordinary- duties of trustee of stock. OF THE DUTIES AND LIABILITIES OF TRUSTEES OF PERSONAL PROPERTY. The duties ordinarily imposed upon the trustee of a settlement of stock or other personal property, are of such a nature as easily to be performed : nor does their exercise involve the trustee in the dangers to which the trustee of a will, ignorant of the doctrines of Equity, is peculiarly exposed. Where stock forms the subject-matter of the trust, the first point to be at- tended to is to ascertain that the stock is regularly transferred into the name of the trustee (a). His sub- sequent duties, during the continuance of the trust, unless there be a change of securities, will not ordi- narily be more onerous than the payment of the divi- deiids or annual proceeds to the party entitled to receive them ; and this may, in most cases, be effected by means of a power of attorney to receive dividends. (a) The trustee must not be content with a statement or recital that the stock is transferred, but for his own protection must obtain distinct evidence of the fact ; Story v. Gape, 2 Jur. N". S. 706. As to the duties of a trustee to inquire into and enforce the security of trust property, see the recent and very important case of Macnamara v. Carey, 1 Ir. Kep. Eq. 9. TRUSTS OF STOCK. 113 executed in favour of the person having the life in- terest in the stock, and used by him from time to time as dividends fall due. When the beneficiary or person interested in Go- Distringas on stock in vemment Stock standing in the name of a trustee, is trustee's ° name. apprehensive that a breach of trust is likely to be committed by the latter, his course will be to issue a writ of distringas (b), grounded upon an affidavit. This wiU prevent, in effect, any dealing v^ith the stock until the Court shall have made its order ; for immediately on the trustee taking any step to transfer, the Bank gives notice to the party who served the distringas, who must then at once institute his suit and obtain an injunction (c). Where the settlement contains no power for varying securities, the trustee is bound to retain the fund ex- actly in its original state, and he must resist aU soli- citations of persons interested, having for their object a change into unauthorized securities, which promise a higher rate of interest (rf). The greater difficulties to be contended with by the Duties of trustee of a trustee of a will, arise partly from the various kinds ^lu- (J) This writ is issued under the authority of stat. 5 Vict, c. 5, ss. 4, 5. For the form of affidavit, and the procedure thereon, see XXVII. Consol. Ord. Ch. (c) The nature and effect of the distringas were explained by V.-C. Wigram in Me Marquis of Hertford, 1 Ha. 584. If the " right of survivorship" were by law excluded as between trustees, a far more simple and effectual check upon fraud would exist. {d) Angell y. Dawson, 3 Y. & Coll. 316. DUTT AS TO CALLING IN of property with whicli lie will, in ordinary cases, find himself entrusted ; and partly from the frequent ab- sence of directions as to the time and manner of call- ing in, and inresting the proceeds of the residuary estate on permanent securities. It cannot be too fre- quently impressed on trustees that the absence of ex- press directions on this subject does not invest them with any discretion : so far as the instrument creating the trust is silent, the acts of the trustee must be re- gulated by those strict rules of Equity which are binding upon all trustees alike, regardless of any general terms in the instrument, giving an apparently unlimited discretion as to the management and invest- ment of the fund. The first duties of the trustee of a will are to re- duce into possession all outstanding property, to sell property of a fluctuating or deteriorating kind(rf), to call in debts and other choses in action of the testator, and to convert all personalty not specifically bequeathed into money. These duties must be per- formed with all possible expedition, and a direction in the wiU to " call in with all convenient speed" will add nothing to the obligation imposed by law on every executor and trustee to do so(e). Where legal pro- ceedings are necessary, they must be resorted to, but the trustee who has made every exertion to recover outstanding debts, wiU not be held accountable in the (_d) Cafe V. Bent, 5 Ha. 35, and the other cases cited in notes to Some V. Bartmotith, 2 Le. Ca. Eq. (e) Per Lord Cottenham, Buscton v. Bnvton, 1 Myl. & C. 80. OIITSTANDIN& FUNDS. 113 event of his efforts proving unsuccessftd (/). Money left outstanding on personal security must be called in, notwithstanding that the security has been selected and approved by the testator ; for after his death the Court of Chancery does not admit of the exercise of a similar discretion by his trustee (^). Tn general, the entire personal estate is to be called in, and placed in a state of permanent security, within twelve months from the testator's decease ; and a trustee will, in general, w^ be liable for losses consequent on shares of a fluc- tuating and speculative character not having been sold within the twelve months (A). (/) Where it is the duty of an executor (or trustee) to obtain payment of a sum of money, he is exonerated, though he take no steps at all, provided it appears that if he had done so they would have been, or there is reasonable ground for belieTing they would haye been, inefEectual ; per Sir J. Romilly, M. B., in Clach v. Holland, 19 Bear. 271, 272. The onus will lie on the trustee to show that his efforts would have proved unsuccessful. Stiles v. 6r^iy, 16 Sim. 230. See Alexa/nder v. Alexander, 12 Ir. Ch. Eep. 1. (^) Sailey v. Qould, 4 T. & Coll. 221 ; Cloug% v. Bond, 3 Myl. & C. 490. QC) Sood V. Clapham, 19 Beav. 90 ; SngTies v. Empson, 22 y Beav. 181 ; GrayUirn v. aarkson, 2 W. N. 29. By a settle- MAS^ k ment a sum of money due from A. was vested in A. and B. as '"''^ p- ^■J ' trustees on trust with all convenient speed to get in and invest in consols. For two years and a half B. took no steps to realize, and at the end of that time A. became a bankrupt. It was held that B. was liable to make good the loss ; Grove v. Price, 26 Beav. 103. As to the right of the eestwique trust himseM to take active measures towards getting in choses in action, see CUSTODY OF TRUST FUNDS. The duties and liabilities of trustees of personalty- were discussed in the case of Clough v. Bond{i). Lord Cottenham said : " It wUl be found to be the result of all the best authorities on the subject, that, although a personal representative acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation of the fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it, yet, if that line of duty be not strictly pursued, and any part of the property be invested in the funds, or upon securities not authorized, or be put within the control of persons who ought not to be entrusted with it, and a loss be thereby eventually sustained, such trustee will be liable to make it good, however unex- pected the result, and however free such conduct may have been from any improper motive. Thus, if he omit to sell property when it ought to be sold, and it be afterwards lost without any fault of his, he is liable (K) ; or if he leave money due upon personal Paddon v. Richardson, 7 D. M. & G. 563. A trustee will be liable for the loss occasioned by his not having taken active measures to place the trust property in a state of security, e. g., for omitting to have a settlement of property in Ireland duly registered. Macnaviara v. Carey, 1 Ir. Eep. Eq. 9. (i) 3 Myl. & C. 490, vide 496. Here the liability of an admi- nistratrix came in question ; but the oflSce of trustee in these particulars resembles that of personal representative. (7i) Phillips V. Phillips, Freem. C. C. 11. CALLING IN SECURITIES. 117 security, which, though good at the time, afterwards fails [I). And the case is stronger if he be himself the author of the improper investment, as upon personal seciirity or an unauthorized fund." In the absence of any direction to the contrary, a as to calling in real trustee may safely permit funds to remain invested on securities. good real securities. It is, indeed, his duty to leave them in that state of investment, unless the money be actually required for some purpose connected with the trust, or some other circumstance arise to render the calling in of the fund desirable (m). It is difficult to lay down any rules on a subject as to which the dis- cretion of the trustee must in the main guide him. From the expressions made use of by the Court of Appeal, in the case of Robinson v. Robinson (n), it may, however, be inferred that where the discretion of the trustee is not controlled by the terms of the in- strument creating the trust, he wiU be justified in leav- ing funds outstanding upon such real securities, per- manent in their nature, as may have been approved of by the testator as ehgible modes of investment. But a trustee, before leaving money outstanding on mort- gage, should take some steps to satisfy himself that (Z) Powell V. Evans, 5 Ves. 839 ; Tebis T. Carpenter, 1 Mad. 290. (m) Orr v. Nemton, 2 Cox, 274. (re) 1 D. M. & G. 2i7. In this case Twrnpilte hands were held to be real securities, and such as trustees are justified in not callmg in. Lord St. Leonards thinks that railway debentures are not " real securities," Handy Book, 7th ed. 198. 118 TRUST MONEY LENT the security is primi facie good and sufficient (6) ; and if its sufficiency be questionable, he should lose no time in calling it in, even against the wish of the tenant for Ufa of the fund, and although the invest- ment vras approved of by the creator of the trust (p). Trustees directed to invest " on real security by vray of mortgage of any freehold, copyhold, or leasehold hereditaments " are not justified iu vesting on railway mortgages (§'). Nor will a power to lend on real se- curities justify an investment on the security of a judgment registered against the debtor's lands [r) ; nor on the security of a lease for lives, where a pohcy of assurance will in effect form the chief item in the security {$). A long term of years, at a nominal rent, may perhaps be regarded as substantially, though not technically, equivalent to a fee simple (t). Payment of a A mortgagor should refuse to pay the mortgage mortgage to .pit i i i a trustee. money to a trustee, ii he has reason to know that the latter is about to misapply it (m) ; and in any case of payment he should make the payment to the trustee himself, and not to his agent, or even to his solicitor, (o) Ames T. Parkinson, 7 Bear. 384. (j>) Harrison v. Thexton, i Jur. N. S. 550. (g') Mortimore v. Mortimore, 28 L. J. Ch. 558 ; Harris v. Harris, 9 W. R. iH. (r) JoTinston t. Lloyd, 7 Ir. Eq. Eep. 252. (s) See Lander t. Weston, 3 Drew. 389 ; Fitzgerald v. Fitz- gerald, 6 Ir. Ch. Eep. 145. (t) Townend t. Townend, 1 Giff. 211. («) Fernie v. Mag-uvre, 6 Ir. Eq. Rep. 137. ON MORTGAGE. 119 although holding the deed and the receipt of the trus- tee for the money (x). Where money is to be paid over, a trustee does not incur risk by allowing his co-trustee to receive a pay- ment, but he is bound to leave it there no longer than necessary ; and in such case, the better course is to have the money lodged in a bank to the credit of the trustees jointly (y). By section 23 of Lord St. Leonards' Act (22 & 23 Receipts oi *^ truBtees. Vict. c. 35), it is declared that the bona fide payment to and the receipt of any person to vi^hom any purchase or mortgage money shall be payable upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the appUeation, or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instru- ment creating the trust or security. It is doubtful whether this section applies to trusts created prior to August, 1859 — the passing of the Act. Section 29 of Lord Cranworth's Act (23 & 24 Vict. c. 145) enacts that the receipts in writing of any trustee for any money payable by reason of any trusts or powers shall be good discharges. The operation of (x) Lord St. Leonards' Handy Book, 7th ed. 109, 199. ( y) In several recent cases in Lreland where the power of trustees to give receipts has come under consideration, a distinc- tion has been drawn between monies which are pnre personalty, and monies payable on sales or mortgages ; Ford v. Ryan, i Ir. Ch. Eep. 342 ; Fernie v. MagvAre, 6 Ir. Eq. Eep. 137 : but it seems doubtful whether the distinction is established, see Lewiu on Trusts, 5th ed. 240. 120 trustees' ebceipts this Act is expressly limited to trusts created since 28th August, 1860. As neither of the foregoing enact- ments is retrospective, it -will for many years be neces- sary to inquire into the power of trustees to give valid discharges for purchase money. investmert It has long been settled law (some early decisions on personal ^ \ ./ eecurit7. to the contrary, notwithstanding) that nothing short of an express authority in the deed or will, can justify trustees in lending upon the personal security of one or of any larger number of persons, however unim- peachable their credit (z). General expressions con- ferring upon the trustees an unlimited discretion, as to the mode of investment, will not justify them in so doing. It is equally certain that express words autho- rizing loans on personal security, will not warrant them in lending" to one of their own number (o). A power of making investments on securities not ap- proved of by the Court of Chancery will be strictly construed, and all its terms and conditions must there- fore be followed closely in exercising it ; where (for example) trustees are authorized, on obtaining the consent of particular persons, to invest on personal security, the required consent must be obtained before the investment be made (6). (s) 2 Story Eq. Jur. § 1274 (2nd edit.) Trustees may of course lend on personal security where expressly authorized hy the terms of the trust. Paddon v. Richardson, 7 D. M. & G. 563. (a) Pocock T. Reddington, 5 Ves. 794 ; Stickaey t. Sewell, 1 My. & C. 14. (*) Cooker v. Quayle, I Euss. & M. 535 ; Payne T. Collier, 1 Ves. jnn. ]70 ; Bateman v. Davis, 3 Mad. 98. In the latter PERSONAL SfiCTJBITT. 121 Where trustees are expressly directed to invest on personal securities, or are " required" to invest on the application of specified individuals, all discretion is of course taken away ; and the trustee is bound to act in conformity with the words of the instrument, without regard to other considerations (c). ,In the absence of an express direction it is not Eoieasto ' ^ investment competent for trustees, although empowered to invest in » per cent. "at their discretion,'' to adopt any other, mode than that sanctioned by the Court. The fund long selected by the Court was the 3 per cent, consols ; trustees could always avoid liability by investing in this fund, and for its fluctuations they never were held liable (d). case it was held that a subsequent consent by the wife would not suiBce, where by the terms of the settlement the consent was re- quired ^Hor to the inyestment. In Wiles v. GresAam, 5 D. M. & G. 770, trustees authorized, with the consent of husband and wife, to leave funds outstanding on personal security, and with such consent to call them in, were held not to have committed a breach of trust in leaving a fund, mithout such consent, in the hands of the husband, where it was speedily lost by his bank- ruptcy. And it was held that on that event it became the duty of the trustees to call iu the amount without obtaining any con- sent, and as they had omitted to do so, they were held liable to replace the fund : as to obtaining the wife's consent to a par- ticular investment, see Cliild v. Child, 20 Beav. 50. (c) Forbes v. Moss, 2 Bro. C. C. 430 ; Cadogan v. Essex, 2 Eq. Eep. 551. id) Peat V. Crane, 2 Dick. 499 ; Clough v. Bond, 3 Myl. & C. 496 ; Sate v. Hooper, 5 D. M. & G. 338. " This obligation — not the result of any positive law— 'has been imposed on trustees generally by the Court as a convenient rule, affording security to the cestidqtie trust, and presenting no possible diffi- U. G 122 THE RECENT ACTS AND ORDERS It is not allowable for a trustee to invest in stock or shares of any kind except those authorized by the order of the Court (e), or in the funds of any foreign Government. Any loss consequent upon an unauthorized invest- ment will have to be made good by the trustee, while any profit arising therefrom must be accounted for to the cestuique trust {/). Recent Acts Until lately trustees Were not justified in investing ments. trust money (in the absence of special directions) in any fund but the 3 per cent, consols. But section 32 of Stat. 22 & 23 Vict. c. 35 (Lord St. Leonards' Act), authorizes a trustee, executor, or administrator, unless expressly forbidden so to do, to invest any trust fund on real securities in any part of the United Kingdom, or in Bank Stock or £ast India Stock (g), and the trustee shall not on that account be held liable for a breach of trust, provided that such invest- ment shall in other respects be reasonable and proper (A) . This Act not being retrospective, an Amendment Act culty to the trustee," per Lord Cranworth in RoKnson v. SoMii- son, 1 D. M. & G. 247. (e) Trafford v. JBoehm, 3 Atk. 444 ; Some v. Dartmoutli, 7 Ves. 150. (/) CrarosJiay t. Collins, 15 Ves. 218. {g) The meaning of the word " East India Stock" is defined by Stat. 30 & 31 Vict. c. 132. See page 124, post. (li) See Lord St. Leonards' remarks on this section, page 125, post. The material clauses of both these Acts will be found in the Appendix. AS TO INVESTMENTS. 123 was passed, 23 & 24 Vict. c. 38, rendering by sect. 12 the former Act retrospective ; and by sect. 10 empow- ering the Court of Chancery to issue General Orders from time to time as to investment of cash under its jurisdiction in such funds as the court shall think fit; and all trustees, executors, and administrators having power to invest in government securities, may invest in any of the funds and securities to be named in such General Order. By General Order of the Court of Chancery in General Orders of England, of 1st February, 1861, the following funds comt. and securities are specified ; and application may be made to the Court for conversion of consols into any of them, viz. : — Bank Stock, East India Stock, Ex- chequer Bills, and £2 : 10s. Annuities, Mortgage of Freeholds and Copyholds in England and Wales, also the Consolidated, Reduced, and New Three per Cent. Annuities. The General Order of the Court of Chancery in Ireland under the act, on the 24th May, 1861, differs slightly from the above, as it authorizes the invest- ment only in Bank of Ireland Stock, and on mortgage of freehold and copyhold (i) estates in Ireland. The second clause of both the foregoing General Orders is to the following effect : — Every petition for the conversion of any Government stock into any other of the stocks, funds, or securities above men- (i) Notwithstanding this general order, there are not, as a fact, any copyhold estates in Ireland. The general orders will be found in the Appendix. g2 124 THE RECENT ACTS AND OKDEES East India Stock. tioned, " shall be served upon tlie trustees (if any) of such stock, and upon such other persons as the Court shaU think fit." An Act has just been passed (_/) for the purpose of explaining the meaning of the words " East India Stock" in the above act. It is declared that those words include as well the East India Stock which existed prior to 1859, as East India Stock charged on the revenues of India by Act of Parliament in or after 1859. This Act also (sect. 2), empowers every trustee to invest any trust fund in his possession or under his control in any securities, the interest of which is or shall be guaranteed by Parliament, to the same extent and in the same manner as he may invest trust fund in the securities mentioned in the first Act. Lord St. Leonards thus summed up the law as to the the late Acts, investment of trust funds (A) : — " Now the law stands thus : — By the 32nd section Lord St. Leonards on (^) 30 & 31 Viet. c. 132. This act (wHch wiU be found in the Appendix) was rendered necessary by the continued uncer- tainty as to what East Indian Stocks were authorized. It is entirely in the discretion of the court whether an appli- cation to conTert government funds into any other funds or securities shall be granted ; and it seems that unless there are special reasons for the change of investment, and it appears that the tenants for life will not be benefited at the expense of the remaindermen, the court will be unwilling to sanction the change of investment. See Lewin on Trusts, 6th ed. 254, and cases there cited. The decisions on the meaning of the words " East India Stock" will also be found there ; as all doubt on this point is now removed it is unnecessary to refer to them further. (J) In the " Times," 29th August, 1860. AS TO INVESTMENTS. of the 22nd 85 23rd Vict. c. 35, where a trustee is not, by some instruments creating his trust, expressly for- bidden to invest any trust fund or real securities in any part of the United Kingdom, or in the stock of the Bank of England or Ireland, or in East India Stock, it is lawful for him to invest such trust money in such securities or stock, provided that such invest- ment shall in other respects be reasonable and proper ; and by the 12th section of the 23rd & 24th Vict, c. 38, this clause is made to operate retrospectively. " By the last-mentioned Act the Lord Chancellor is empowered to make such general orders as to the in- vestment of cash under the control of the Court, either in the Three per cent. Consols, or Reduced, or New Bank Annuities, or in such other stocks, funds, or securities as he shall see fit ; and power by the same Act is given to the Lord Chancellor to convert any Three per Cent. Bank Annuities, standing or to stand in the name of the accountant-general of the Court in trust in any cause or matter, into any such other stocks, funds, or securities, upon which, by any such general order as aforesaid, cash under the control of the Court may be invested. The orders for conver- sion, are to be made upon the petition of any of the parties interested. " By the same Act, trustees having power to invest their trust funds upon government securities, or upon parliamentary stocks, funds, or securities, may invest them in any of the stocks, funds, or securities in or 126 THE RECENT ACTS AND ORDERS upon which by such general order cash under the control of the Court may be invested. " The result is, that trustees (including executors and administrators) may, unless forbidden by their trusts, invest the trust fund in real securities in Great Britain or in Bank Stock of England or Ireland, or in East India Stock. The Court itself can invest cash in such stocks, funds, and securities as it shall see fit, and make a general order for the purpose ; and upon the petition of jsarties interested, Three per Cents. may be converted by the Court into such securities as cash may be invested upon under any general order ; and trustees, with the usual powers to invest, may re- sort to the same securities." Change oi in- On the construction of these Acts, it is held that vestment -will . . , ,. not bo made the change of investment is m the discretion of the by the Court merely to Court, and that, in the absence of special circumstances produce a largeriQ- which might make the proposed change beneficial to coase. ° _ _ -^ ° those entitled in remainder, the transfer ought not to be permitted (Z). Also, it seems that whenever the fund having the lower rate of interest does not pro- duce sufficient income to fulfil a primary purpose of the trust, the Court will be disposed to change the investment (m). The mere expectation of an in- creased income to the persons having a life interest is not sufficient to warrant the application to the Court ; (Z) CocUurn v. Peel, 3 D. F. & J. 170. (?») See 2 Daniel Ch. Pr. 1629. AS TO INVESTMENTS. 127 and Bank Stock, although a safe investment, is less eligible, as being more liable to fluctuations, than 3 per cent, stock («). It has frequently been questioned whether, in the May trustees absence of express authority, a trustee would be jus- mortgage? tifie^ in investing on good real security ? The cur- rent of modern authorities was opposed to such an in- vestment ; and Su' Gr. Turner, L. J., characterized this question as " one of difficulty, on which he did not mean to give any conclusive opinion. He did not, however, hold out any encouragement to the notion that trustees, to whom no power for that purpose was given, were justified in so doing" (o). It has been seen that pursuant to the late Acts investments in mortgages are now authorized by order of the Court. Trustees of settlements and wills are now therefore at liberty to invest on good freehold security. It is generally understood that, in so doing, they are not justified in lending to a greater amount than two- thirds of the value of land, or more than one-half of the value of house property or other buildings (p). Trustees authorized to lend on real securities in Act antuoriz- England, Wales, or Great Britain, may, under the ireiana. (w) In re Boyce 's Minors, 1 Ir. Rep. Eq. 47. (o) In Baly v. JRidelialgJi, 3 Eq. Rep. 901 ; 1 Jur. N. S. 473. See Lord St. Leonards' Handy Book, 7th ed. 198. (_p) Sticlmey v. Sewell, 1 My. & C. 9 ; Stretton v. Ashmall, 3 Drew. 9. In the former case it was decided that trustees are not authorized in lending to a co-trustee, eren upon unexcep- tionable security ; and see Fletcher v. Green, 33 Beav. 426. KEAL SECURITIES. statute 4 & 5 Will. IV. cap. 29, lend upon real secu- rities in Ireland {q) ; but if any infant, unborn child, or insane person, be interested, the investment must be made under the direction of the Court of Chancery ; and the consent of every person will be required, vrhose consent is requisite in loans not under the Act ; nor does the Act apply where there is an ex- press restriction against such loans. The last clause has given rise to the practice usual with convey- ancers, of introducing words prohibitory of invest- ments on land in Ireland. The application to the Court (where rendered necessary by the circum- stances of the cestuique trust) may be made either in a cause, or by petition in a summary way (r). By the Land Improvement Act (27 & 28 Vict. c. 114, ss. 60, 61) trustees having a power to lend on real securities are authorized to invest on charges under the Act or mortgages thereof. But this ap- pears not to extend to trusts created before the pass- ing of the Act (29th July, 1864). Lord Cranworth's Act (23 & 24 Vict. c. 145, s. 25) enacts, that trustees having trust money which it is their duty to invest at interest, may at their (j) The term " Real securities in Ireland" is held to include leaseholds for lires renewable in perpetuity, subject to a head rent and to fines on renewal. M'Leod t. Annesley, 16 Beav. 600. (r) Stuart v. Stuart, 3 Bear. 430. See Ex parte Pamlett, 1 Ph. 570. Trustees are now expressly empowered to lend on mortgage in any part of the United Kingdom by stat. 22 & 23 Vict. c. 35, s. 32, and orders thereunder ; see p. 122 — 126, ante. VARYING SECURITIES. 129 discretion invest the same in any parliamentary stocks, or public funds, or government securities; and may also, at their discretion, call in and re- invest the same, and vary any such investments for others of the same nature ; provided that no such original investment (except in Three per Cent. Consols) and no change of investment as afore- said shall be made where the tenant for life is under no disability, without the consent of the tenant for life. The object of this section is to render it unne- cessary hereafter to insert the usual powers for vary- ing securities in deeds and wills ; and it applies only to trusts created subsequently to August, 1860. Where the trust fund is invested on mortgage se- Mortgage by curity, it is the usual practice, in framing the deed, to keep the trust out of sight, in order that the mort- gagor may not, on repayment, be bound to see to the application of the money. A declaration is often found inserted in a mortgage by trustees, to the effect that the advance is made by them on a joint account, and that the receipt of the survivors or survivor of them shall be a sufficient discharge. As to trusts created since August, 1859, the trustees' receipts are rendered effectual by sect. 23 of Lord St. Leonards' Act (22 & 23 Vict. c. 35). Trustees about to lend on mortgage should be cau- shouw be tious to have the sufficiency of the security ascer- inquiry as to tained by the report of duly qualified surveyors. A remarkable instance of the neglect of this precaution g5 EEAL SECURITIES. occurred in a case in the Eolls (s), where a sole trus- tee had been induced to lend upon the security of lands held under lease renewable in perpetuity subject to a rent. The value of the property had been grossly misrepresented, and the trustee does not appear to have made sufficient inquiry as to the real value, or to have had an impartial survey made. The property was afterwards sold for a sum considerably under the amount of the mortgage ; and on a bill filed by the cestuique trust, the trustee was declared liable to make good the loss. It would appear from the same case, that on property of this description (as on house property and ordinary leaseholds) not more than one- half of the estimated value should be advanced (<). An investment of trust money on leaseholds, unless there be an express power to invest on such security, is also a breach of trust. Where the power autho- rizes it, care should be taken, as in case of loans on house property, and on renewable interests, to allow an ample margin for depreciation, &c. More than one-half of the value cannot, in general, be advanced without risk. In one case, trustees having been di- rected to invest on good and approved freehold or leasehold securities, it was found that £2,600 had been lent on mortgage of four freehold messuages, (s) M'Leod T. Annesley, 16 Beav. 600. {fj See Stretton t. Aslimall, 3 Drew. 9. The onus is on trastees lending on unauthorized securities, to show that the value is sufficient. LEASEHOLDS. two of which were unfinished and unoccupied, — the property having been previously valued by a surveyor at the sum of £3,500 and the annual rental estimated at £175. On a sale a considerable sum was lost, and it appeared that the rent received from the property, at the time of the loan, was no more than ;6105 per annum, and that the property was altogether of a speculative character. The trustees were, however, admitted to have acted bond fide, and the Vice-Chan- cellor declined to charge them with the loss, and gave them costs of the suit {i.i). No other reported case exhibits such leniency to- wards trustees; and it is not surprising to find that the decree was reversed on appeal. Unfortunately no report of the appeal can be found. Trustees cannot be advised to lend on second mort- second gage, as the legal estate will not be vested in them, and they will probably be unable to secure possession of the title deeds. A second mortgagee is also liable to be embarrassed by the proceedings of the first mortgagee, in case the latter should institute proceed- ings to foreclose, or should exercise his power of sale {x). An advance on a second mortgage of house pro- perty having been followed by a considerable loss, the trustees endeavoured to shield themselves by a (m) Jones T. Lewis, 3 De G. & S. 471 ; reversed, Chitty Eq. Index, 3,555. {x) Robinson v. Robinson, 16 Jur. 256 ; Waring v. Waring, 3 Ir. Ch. Eep. 337 ; Loolhart v. Reilly, 1 De G. & Jon. 476. mortgage. SECOND MORTGAGE. clause ia the trust deed, declaring that they were not to be liable for iasufficiency or deficiency in value of any securities, except through their wilful default. This clause was held to afford them no protection against the consequences of the breach of trust (y). In England a judgment cannot be regarded as a security for money. In Ireland it sometimes becomes so ; and it is therefore as well to remind the trustee that judgments obtained prior to July, 1850, must be re-registered every five years to preserve their pri- ority as against subsequent mortgagees and purchasers for value. Judgments obtained in Ireland since July, 1850, are not charges on the debtor's lands unless re- gistered by a properly framed affidavit in the office for registering deeds. If the amount be lost through the neglect of the trustee to register or re-register the judgment, he will be held responsible for the loss (z). It is almost superfiuous to say that no trus- tee should ever lend on the security of a judgment, although registered, for it can only attach to what- ever interest the debtor has (a) ; and is for other reasons a security of the most objectionable kind. ( y) Drosier T. Brereton, 15 Beav. 221. It appears from this case that in charging trustees for breaches of trust, it is imma- terial how the trust was created. (i) Lester^. Lester, 6 Ir. Ch. Eep. 513, recognized by the Irish Court of Chancery Appeal in Macnamara t. Carey, 1 Ir. Rep. Eq. 9, a case of great importance as regards the active duties of trustees to secure the trust property. All the cases are there collected. (a) M/re v. M'Donell, 9 H. of L. Ca. 619. MONET UNINVESTED. 133 Where trustees improperly retain in their hands ^°°^l^^^g be invested in the funds. money which they are, by the terms of the trust, re- "* invested quired to invest in the Government funds, the cestui- que trust has the option of charging them with the money so retained, and interest : or with the amount of stock that would have been purchased, had the investment been properly made (6). Where trustees, directed to invest in the Govern- in the funds or on real ment funds, or on real security, have done neither, securities. they have in some instances been held answerable, at the option of the cestuique trust, for the principal money with interest, or for such a sum of 3 per cent, consols as would have arisen from the invest- ment. Under similar circumstances, however. Sir J. Leach declaimed the trustees liable only for the prin- cipal money and interest, observing, that "if real security had been taken, the principal money only would have been forthcoming to the trust, and the want of real security is all that is imputable to the trustees" (c). All uncertainty on this point is now ended by the judgment of the Court of Appeal in Robinson v. Robinson (d). In this case the testator (J) Shepherd v. Mauls, 4 Hare, 304 ; Robinson v. RoUnson, 1 D. M. & G. 247, per Lord Cranworth. (c) SocMey v. Bantoch, 1 Euss. 141 ; Watts v. Girdlestone, 6 BeaT. 188 ; Ames t. Parkinson, 7 Beav. 379 ; Marsh v. Hunter, 6 Mad. 295. This decision was followed by Sir James Wigrain, V.-C, in Shepherd t. Mouls, 4 Hare, 500. 2 Lead. Ca. Eq. 648. {d) 1 D. M. & G. 247. In the judgment of Lord Cranworth, L. J., most of the doctrines now prevailing on the subject of 134 PKESONALTT BEQUEATHED Personal es- tate be- queattiecl in succession. had directed his trustees to invest in parliamentary- stock or funds, or in real securities, and it was held by the Court of Appeal that they were liable only to replace the trust moneys with interest at 4 per cent. Personal estate bequeathed in trust for persons in succession is to be dealt with in such a manner as that it may be fairly and equally enjoyed by all of them, and not so as to give the tenant for life an advantage, to the detriment of those entitled in remainder. It is decided, that " where a temporary or failing fund is limited in successive estates, the first taker is not to have the annual proceeds of the property remaining in specie, but the property is to be converted and capi- talized, so as to allow the first taker the annual in- come arising from such capital and to preserve the corpus to meet the subsequent claims under the set- tlement" (e). Where part of a testator's estate is found to consist of leases for terms of years, long annuities, or any other species of property, terminable and therefore depreciating in its nature, the first point to be ascertained is, whether any intention, ex- press or implied, can be deduced from the wiU that the property shall be enjoyed in specie by the lega- tees. If such inteution cannot be collected from the words of the will, it becomes the duty of the trustee to sell and convert all property of this description. investments by trustees are stated : the case is most important to trustees. (e) Darcy v. Croft, Dmry Kep. t. Napier, 403, 420 ; and see cases there cited. IN SUCCESSIVE ESTATES. 135 and invest the proceeds in some fund approved by the Court, in order that it may be equally enjoyed by those to whom successive estates are given. The rule may be stated thus : — Where personal estate is given in trust for persons in succession, the Court holds that those persons are entitled to enjoy the same thing : and this they cannot do unless property of a perishable nature be converted into other pro- perty of a permanent nature, by means of an invest- ment approved by the Court (/"). A specific bequest will of course amount to an ex- when pro- pression of intention that the property shall not be ^Zm£in converted (g), and a direction that a division ut the property shall be made after the death of the tenant for life, has been considered equivalent to a direction that he is to enjoy it in specie (A). A direction ttat there shall be a sale at a particular time, has in like manner been held to indicate an intention that the property is to remain unaltered until that time (i). Where property the subject-matter of a bequest practice given to persons in succession, is found by the trus- can bene im- tees to be so laid out as to be secure and to produce a version. (/) Some T. Lord Dartmouth, 7 Yes. 137 ; Piohering v. PioUring, 4 My. & C. 389 ; DiTnes v. Scott, i Euss. 200 ; Fitz- gerald T. Fitzgerald, 6 Ir. Cli. Eep. 145. The cases are col- lected in the notes to Howe v. Dartmouth, in 2 Le. Ca. Eq. ( g} Lord, v. Godfrey, 4 Madd. 455 ; 2 Lead. Ca. Eq. ; Sood V. Clapliam, 19 Beav. 90. Qh) Collins T. Collins, 2 My. & K. 703. (i) Daniel v. Warren, 2 T. & C. 290 ; and see 2 Lead. Ca. Eq. 2nd ed. 280. 136 PERSONALTY BEQUEATHED large annual income, but not to be capable of imme- diate conversion without considerable loss to the estate, then the rule is not to sell, but to set a value on the property and to allot to the tenant for life 4 per cent, on such value, and the residue of the income must be invested, and the income of the investment paid to the tenant for life, but the principal secured for the remaindermen {k). The rule in The Eule as to the conversion of personal estate Howe V. , Dartmimih. bequeathed in succession, was considered by the Court of Appeal, in a case where a testator at the time of his death was possessed of a sum of Navy 5 per cent, annuities, a stock which after some changes became at last represented by 3^ per cent. Bank annuities; The testator by his will directed a sale of his resi- duary estate, and an investment of the money arising therefrom in Government or other good security, to be held in trust by S. F., to whom also he gave the first life-interest. She received the dividends during her life, and took no step for the conversion of the Navy 5 per cents. After her death, when the fund had dwindled to 3J per cent, stock, it was sought to make her estate liable for such a sum of consols as would have been purchased with the money arising from a sale of the other securities, had such sale been effected ; and Sir J. Romilly, M. R., on the authority of Howe v. Dartmouth (Z), held that her estate was (J) See Caldecott v. CaUecott, 1 Y. & C. C. C. ; Arnold v. Minis, 2 Ir. Ch. Rep. 601. Q) 7 Ves. 137 ; 2 Lead. Ca. Eq. 225. IN SUCCESSIVE ESTATES. 137 liable accordingly. The judgment was reversed on appeal, and Howe v. Dartmouth was commented upon. Sir G. Turner, L. J., remarked that where there is no trust for investment, the Court expects that executors will invest in consols. When there is Discretion as to invest- a discretion as to investment, and the money is found ment. invested in another manner, it is not a breach of trust to leave it there. " In this case there was no impu- tation of unfairness against the executrix, and she did no more than leave the fund in the state of in- vestment in which she found it" (m). It will be observed that the trustee had here allowed the fund to remain outstanding on Government security, although not upon the particular fund sanctioned by the Court. There is abundant authority for conclud- ing that neither the bona fides of the trustee, nor his adoption of modes of investment approved of by the testator, will secure him against the consequences of a breach of trust, when he leaves the fund out- standing upon neither real nor Government secu- rities (m). The rules laid down for the guidance of trustees. Personal and adverted to in the preceding pages, will apply in trust lor an infant. (ot.) Baud T. Fardell, 7 D. M. & G. 628 ; 25 Law J. (Ch.) 21. («) See pp. 115, 116, ante, and cases there referred to. In a recent case a supposed right of proceeding against a trustee for breach of trust was assigned for a nominal consideration to a person, whose suit was at once dismissed in a, manner which affords no encouragement to speculative suits of a similar cha- racter. Bill T. Boyle, L. Eep. i Eq. 260. 138 TEUSTS FOK INFANTS — with at least as much force to cases where the cestui- que trust is not of legal age. It may, perhaps, be stated, that the Court of Chancery (under whose pro- tection infants are by law especially placed) is more than usually stringent in requiring the investment of funds to which they are entitled, in the Government securities approved by the Court. A trustee is not authorized in paying over any sum of money to the infant himself, for the latter is not capable of giving a valid receipt for it (o) ; nor can a trustee safely in- vest in the purchase of land, or in any other way than that prescribed by the rules of the Court, although such investment may appear to be more for the ad- vantage of the infant. The proper course will be, under these circumstances, to apply under sect. 30 of Stat. 22 & 23 Vict. c. 35, to a judge in equity for ad- vice as to the course to be taken (p). Maintenance The question frequently arises — how far trustees and advance- ment, will be justified in applying the trust fund of a minor for his maintenance and advancement, where no such (o) A release given to the trustee by a cestuiqne trust during infancy, is of course void ; after coming of age, a release given by the latter may protect the trustee, or the acts of the latter may be confirmed by the acquiescence of the former, but a mere omission to require repayment for several years mil not deprive him of his right. Dagley v. Tolferry, 1 P. W. 285 ; Lee v. Brown, 4 Ves. 362; Overton y. Banister, 3 Hare, 503; Bur- rows V. Walls, 5 D. M. & G. 233. ip) See Chapter IX. " Judicial Advice." See Winchelseav. Korcliffe, 1 Vern. i34 ; see also Cliester x. Rolfe, 4 D. M. & G. 798 ; Be Barrington's Settlement, 1 Joh. & Hem. 142. MAINTENANCE AND ADVANCEMENT. ^^- application of the fund has been authorized by the terms of the trust ? In many instances the applica- tion of the dividends or income for these purposes has been sanctioned, but in very rare instances has this been sanctioned as to the principal {q). On the whole, a trustee cannot be advised to break in upon the prin- cipal for the maintenance of an infant, without a pre- vious application to the Court, which will fix the amount, having regard to the position in life and the property of the infant. Trustees are now empowered to apply the income income may '■ . ^^ applied to of the propertv of infants for their maintenance, wards main- ^ ^ '' tenance of Sect. 26 of Lord Cranworth's Act {r) enacts, that in want. all cases where any property is held by trustees in trust for an infant, either absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence of any event previously to his attain- ing that age, it shall be lawful for the trustees, at their sole discretion, to pay to the guardians (if any) of such infant, or otherwise to apply for or towards his maintenance and education, the whole or any part of the income of the property, whether there be any other fund applicable to the same purpose or not. (g) WaVier v. Wetherell, 6 Ves. 474 ; Sisson v. SJiam, 9 Ves. 285 ; Cotliam v. West, 1 Bear. 381 ; Dx parte Hays, 3 De G. & Sm. 485 ; Prince v. mne, 26 Bear. 636. The Court will not break in upon the capital for maintenance, unless the fund be small in amount, Ex parte Green, 1 J. & W. 253. For advancement this will be done with more readiness, Ex pa/rte M'Key, 1 Ball & B. 405. (r) 23 & 24 Vict. c. 145. 140 POLICIES OF ASSURANCE. Duties of trustee of policy of in- surance. The residue of the income is to be accumulated and invested for the benefit of the person ultimately en- titled ; but the trustees may apply such accumulations as if the same were part of the income arising in the then current year. The first duty of a trustee of a settlement which comprises a policy of insurance, is to give notice to the office that the policy has been assigned, and to secure the custody of the policy (r) ; these precautions are for the purpose of preventing a possible sale, or surrender of the policy by the settlor. The trustee should then, if the insurance be " with profits," ascer- tain whether any bonus declared by the company is properly applicable in augmenting the amount ulti- mately payable ; this will be the case if the settlor has expressly covenanted to pay a certain fixed an- nual premium. In this ease when the " bonus" is declared, the trustee should elect to take the bonus by wat/ of addition to the ultimate amount payable, so as to prevent the assurer from applying it, as he otherwise might be inclined to do, in diminution of the annual premium. The trustee must in all cases see that the policy is kept alive by regular payment of the premiums ; and he must, if necessary, take steps to enforce their payment (s). If the assured (r) Policies may now be assigned with great facility, under the Act of 1867, which will be found in the Appendix. (s) Marriott t. Kinnersley, Taml. 470. It is the duty of a trustee to sue upon the covenant of a settlor who neglects to secure the trust property. Macnamara v. Carey, 1 Ir. Rep. Eq. 9. PAYMENT OP PREMIUMS. 141 be SO circumstanced that he cannot pay the premiums, the trustee may, if he think fit, himself advance the requisite amount (t). The trustee may perhaps find himself burdened with a policy of assurance, and also with other trust funds which he is not clearly empowered to apply in keeping up the assurance. In such case he will usually be safe in applying any fund at his disposal, belonging to the same trust, towards payment of the premiums (m) ; but this would be a fitting question to submit for the advice of a judge in equity (v). If no fund is forthcoming, or procurable, but not where there is no fund to otherwise, the trustee will be justified in surrender- pay premium. ing, or selling the policy (w). For any premiums advanced by him he will of course have a valid lien on the policy, and he may repay himself with interest at 4 per cent, whenever the insurance falls in (a;). When the period arrives for distribution of the Duties as to trust fund, the chief care of the trustee will be to as- certain what persons are entitled to receive it, and can give valid receipts. He must take especial care to (t) Claeh T. Holland, 19 Beav. 262, 273 ; HoMay v. Peters, 28 Bear. 603. (u) See Darcy v. Oroft, Dniry Eep. t. Napier, 403. («) See Chapter IX. " Judicial advice." (to) Hill T. Trenery, 23 Bear. 16 ; Beresford v. Beresford, 23 Beav. 292. («) Clack v. Holland, 19 Beav. 262. As to the validity of a claim of Hen upon trust property set up by assignees of the trustee, see Murray v. Pinkett, 2 Ha. 120 ; on appeal, 12 CI. & F. 764. DISTRIBUTION OF FUND. remember what notices have been given him, for after a notice of assignment he cannot safely make any payment to the assignor {y). The difficulties that he may have to contend vfith in the distribution of the fund may arise either from uncertainty as to the legal rights of the several claimants, or from obsta- cles in the vray of payment to ascertained and right- ful claimants. When from any circumstances it is uncertain whose is the hand entitled to receive payment, the opinion of counsel will, of course, be taken, for the guidance of the trustee. If the latter be v^ongly advised and make an improper payment, the fact of his having acted under the advice of counsel will not, how- ever, protect him against the necessity of paying the amount over again to the person really entitled {z). Nor will this circumstance always preserve him from liability to costs. In a recent case on the construc- tion of very special words in a will,'the Lords Jus- tices held that a certain person took a vested interest in a sum of money, which had some time previously been paid by the trustee to another person, under a misapprehension of the law, but fortified in his view of it by the opinions of two eminent equity counsel (one of them afterwards Vice-Chancellor). The trus- ( y) 6resfwtiU v. Be'iveU^-irGiSl. 400. Notice to bind a trustee must be precise and explicit, and given by the right person. In re Brown, L. K. 5 Eq. 88, and cases there cited. («) Doyle V. Blahe, 2 Scho. & Lef. 213 ; see In re Knight's Trusts, 27 Beav. 45. TRUSTS FOE MAERIED WOMEN. 143 tee was, nevertheless, decreed to pay the amount over again, and to pay the costs (a). Difficulties may arise, where the beneficial title to Trusts for femes covert. chattel property is in a married woman. A sum of money or chattel personal of the wife, of which pay- ment or possession can be recovered without any suit or proceeding instituted in equity, in relation to it, will usually be receivable (in conformity with the rules of law) by the husband alone (6). But where the aid of the Court is sought for the recovery of the wife's property (c) the established rules of equity give her a title to a settlement of part of the fund ^ on herself and her children, as against her husband and all persons claiming under him (d). When the husband of a married woman entitled to The wife's equity to a a trust fund is bankrupt or insolvent, the trustee, be- settlement. fore distribution, is under the necessity of making an agreement to divide the fund between her and the assignees, in accordance with a somewhat arbitrary but long settled rule of the Court which ensures a settle- ment on a feme covert of part of any fund, which is obtained through the aid of the Court. The ordi- nary rule is that one-half of such fund shall be settled (a) Boulton v. Heard, 3 D. M. & G. 608. See Angier t. Stannard, 3 M. & K. 566 ; Beveij v. Thornton, 9 Ha. 232. (J) Story, Eq. Jurisp. § 1402. (c) Whether personal property or chattels real ; Sturgis r. Champneys, 5 My. & C. 97. (d) Story, Eq. Jurisp. § 1402 to 1421. All the cases are col- lected in the notes to Murray v. Elibanh, 1 Le. Ca. Eq. 144 EQUITT TO A SETTLEMENT. on the wife and lier children (e) ; but, under special circumstances, this is subject to considerable variation. A fund under 2001. is usually paid over at once to the husband if he is able to maintain his wife ; but the Court exercises a discretion ; and when the husband is in insolvent circumstances and cannot maintain his wife, the whole fund is sometimes settled on the wife (/). But the usual course is to settle one moiety on the wife and her children, leaving the other moiety to be received by the husband or those claiming under him (g). The wife may appear before the Court in person and waive her right, but no consent of hers given in any other way can be acted on. Where a trustee has offered to deal with the fund of a married woman in the way in which the Court would deal with it, and that offer is rejected, his proper course is to lodge the fund in Court {h). A difficulty has also, in some instances, arisen through the reduction into possession of the wife's reversionary chose in action, in consequence of the purchase by the husband of the prior life interest; but this can hardly arise again, as it has been finally decided that a sur- render of the life interest made in order to enable the husband to reduce into possession, is invalid (i). («) Spirett V. Willoms, L. Rep. 1 Ch. App. 520. (/) Brett V. Greenwell, 3 Y. & C. 230; Re Merriman's Trust, 10 W. R. 334 ; In re Mncaid, 1 Drew. 326. (g) Marshall t. GiiHngs, 4 Ir. Ch. Rep. 276. Qi) Re Sman, 2 Hem. & Mill. 34 ; see Bagsliam v. Winter, 5 De G. & Sm. 468. (i) WTiiUle v. Henning, 2 Phil. 731. ORDERS OF DIVORCE COURT. 145 The effects following on a divorce and the consequent orders of the Divorce Court have sometimes to be consi- dered. A chose in action of the wife may, after a divorce, belong to her as fully and completely as though she had never been married (k). And, on the other hand, if the Divorce Court has made an order that the trust fund shall belong to the persons who would be entitled if the wife were dead, then the husband may be entitled (I). A trustee is expected to be acquainted with our laws ; but he is not expected to know those of Scotland (m), or of any foreign country. If he make a mistake and pay the wrong person, he will afterwards remain liable to the right person, but he will not ordinarily be charged with interest on the amount where there has been a honafide mistake {n). In distributing the trust fund, the trustee must be Payment to a careful to make payments directly to the several cestuis- lawfully authorized. que trust, or to persons lawfully authorized by them ; he should not pay money to an agent or solicitor, but in all cases to the principal (o). A payment made to the holder of a forged power of attorney, or to any other person not duly authorized, will of course be equivalent to no payment (p). (Ji) Wells V. Mallon, 31 Beav. 48. {I) Pratt y. Jenner, L. Eep. 1 Ch. Appeals, 493. (m) Leslie v. Baillie, 2 Y. & C. Ch. C. 91. (») Saltmarsh v. Barrett, 31 Bear. 349. (o) Lord St. Leonards' Handy Book, 7th ed., p. 42. (_p) Ashby T. Blackwell, 2 Eden, 299 ; Eaves v. Hiekson, 30 Beav. 186. U. H 146 REVOKED POWER OF ATTORNEY. Payment The legislature lias interfered to protect trustees and after revoca- , . , i • i i i tion of power executors against a risls to wtacb. they were exposed ot attorney. when paymg away trust money to the holder oi a power of attorney, in ignorance of the fact that by the death of the party who had given it, or otherwise, the power of attorney had been revoked. Sect. 26 of 22 & 23 Vict. c. 35, enacts that no trustee, executor, or administrator making any payment or doing any act bona fide under a power of attorney, shall be liable for the moneys so paid, or act so done, by reason that the person who gave the power of at- torney was dead at the time of the payment, &c. or had revoked the power, provided that the fact of death, &c. was not known to the trustee or executor. But nothing is to affect or prejudice the right of any person en- titled to the money against the person to whom sucli payment shall have been made ; and the person so en- titled shall have the same remedy against the recipient of the money as he would have had against the trustee or executor if the money had not been paid away under such power of attorney. Where difficulties stand in the way of a distribution of the trust fund, arising from any of the above-men- tioned circumstances, and indeed whenever a reasonable doubt exists as to the proper destination of the fund, the better course for the trustee will be to take advan- tage of the Trustee Relief Acts, and, by lodging the fund in Court, so secure himself against all the risks attending a distribution on a wrong principle (§'). (2) See Chapter VI. ACQUIESCENCE IN BREACH OF TRUST. 147 It was held by Lord Eldon, in the leading case of Acquiescence •' ' ° in breach of Brice v. Stakes, and the principle has frequently been tr>is'- acted on in subsequent cases, that the person benefi- cially interested, who has acquiesced in a breach of trust, cannot afterwards proceed against the trustee in respect of it. The latter may be exonerated, not only by the concurrence of the cestuique trust in the par- ticular act constituting the breach of trust, but also by his subsequent approval or adoption of it, express or implied (r). Persons under legal disability, as femes coverts or infants, are not capable of thus exonerating the trustee by acquiescence («) ; although if they have fraudulently induced the trustee to commit a breach of trust, they cannot afterwards call him to account for it {£). A. feme covert may, however, be bound by her acquiescence in a breach of trust committed in respect of her separate estate, such concurrence having been fairly obtained (m). But she will not be so bound with regard to property which she is expressly re- strained from anticipating («). The contemporaneous (r) Brice v. Stokes, 11 Ves. 319 ; Langford v. Gascoigne, 11 Ves. 333 ; Kellaway v. Johnson, 6 Bear. 319 ; Broadhurst T. Balgwy, 1 Y. & Coll. 16. The acquiescence need not be evi- denced by writing, Brewer v. Smirles, 2 Sm. & Giff. 219 ; 2 Eq. Eep. 493. (s) Coclier v. Quayle,! Euss. & M. 535 ; Cressmell t. Bewell, i GifE. 460. (i) Eoans v. BicTtnell, 6 Ves. 181 ; Bavies v. Hodgson, 25 Beav. 187. («) 'Pemierton r. M'OiU, 8 "W. E. 290 ; Bremer v. Smi/rles, 2 Sm. & GifE. 219; Jones v. Siggiws, L. E. 2 Bq. 538. («) Clive T. Careni, 1 Job. & Hem. 199 ; Rowley t. Unmin, h2 148 CONSEQUENCES OF consent or the subsequent approval of the cestuique trust will not affect his remedy, if he be in ignorance of the facts, or under misapprehension as to the legal effect of the transaction {y\ Eemedy It usually happens that an improper investment is against the ^ 1 1 i i interest of made through the solicitations of a person having only cestuique trust. ° j. o ^ a life estate, or limited interest in the trust iiind. To the extent of the interest of such person, the trustee has the right of being indemnified against the conse- quences of his breach of trust ; and this partial rehef has been granted even where the particular security does not appear to have been selected or approved of by the tenant for life, although to his solicitations the change of investment was doubtless to be attri- buted {z). 2 Kay & Joh. 138 ; Fletcliery. Green, 33 Beav. i26. It seems doubtful whether the separate estate of a feme covert -will be affected by her verbal promise ; also whether a breach of trust committed with regard to one fund can be visited on her separate estate in a wholly distinct fund. See 2 Drew. 183 ; 4 Drew. 673 ; 4 Ir. Ch. Rep. 274 ; 10 Jr. Ch. Eep. 467. " The doctrine of separate use is in transition, and is not clearly established in all its points." V.-C. Kindersley in Wright v. Chard, 4 Drew. 685 ; see also 12 Jur. N. S. 984 ; Lewin on Trusts, 5ih ed. 536 — 553. The liabilities of a married woman in respect of her separate property were lately considered in Re Leeds SanMiig Company, Mattliemman's Case, L. Eep. 3 Eq. 781 ; see also Mara v. Manning, 2 Jo. & Lat. 311 ; Davis v. Sodgson, 25 Beav. 186 ; Jones v. Higgins, L. Eep. 2 Eq, 538. ( y) Buoheridge v. Glasse, 1 Cr. & Ph. 135. (z) Booth V. Booth, 1 Beav. 125 ; Bahj v. Ridehalgh, 7 D. M. & G. 104 ; 24 L. J. Ch. 528 ; Hood v. Clapham, 19 Beav. 90 ; and see cases cited Drury Rep. t. Napier, p. 595 — 603. ACQUIESCENCE, ETC. 149 What conduct on the part of the cestuiaue trust will wimt con- ^ ^ duct amounts amount to acquiescence in a hreach of trust, will de- t" a^i"'- ^ escence. pend on the circumstances of each case, and cannot be defined by any general rule. It seems that receipt of the augmented income, arising from an improper inyest- ment, will not of itself prejudice the rights of the ces- tuique trust. Lord Cranworth, C, refused to hold a tenant for hfe liable to repayment of such excess of income, on the ground that she had not been a willing party to any overpayment, and that the hardship would be great were she compelled, after the lapse of many years, to refund sums voluntarily paid to her by the trustees (a). Where the irregular investment has taken place at the instance of a cestuique trust, who has in consequence of it received a larger income, ho may be ordered to refund the difference between the interest that would have been payable on a proper investment, and the interest actually received (b). The converse casearose in Hamilton v. Hamilton (c), where a trust fund had been invested in Government stock, which ought, according to the tei'ms of the trust, to have been invested in some security yielding a higher rate of interest. Here it was held that there was no equity against the representatives of the trustee for the difference between the income actually realized, and that which ought to have been realized, inasmuch (a) Sate v. Hooper, 5 D. M. & G. 338. (J) Baynwrd t. Woolley, 20 Beav. 583. (e) Drury, temp. Napier, 217 ; and see Stafford v. Stafford, 1 De G. & Jo. 193 ; and other cases there cited. 150 ACQUIESCENCE as the person having a life interest on the fund knew or might have known aD the facts, and acquiesced in the investment complained of. What con- The question, what conduct amounts to acquiescence ? duct amounts to aoqui- was considered in the case of Burrows v. Walls (d). esceuce ? ^ •' In that case three trustees appointed by a will accepted the trust, but one of them alone acted in it, and the others did not interfere. The trust fund was divisible among the three children of the testator, on the coming of age of the youngest of them. When that event hap- pened, the youngest child, on behalf of himself and the others, made numerous applications to N., the " acting trustee," for a settlement ; and, in reply to a proposition from him, agreed to give hun time for payment by in- stalments. On a suit being instituted against aU three, W. and C, the passive trustees, repudiated any ha- bility ; it was argued on their behalf, that having given time to N., the plaintiffs had acquiesced in his sole dealing with the fund, and had exonerated his co- trustees. On appeal, Lord Cran worth, C., held other- wise. His lordship said : " The mere fact of not having called in the money from the acting trustee does not appear to be a circumstance that disentitles any of the plaintiffs to insist now on the liability of the other trustees ; because, although it is perfectly clear on all the authorities and aU principle that no cestuique trust can allege that to be a breach of trust, which has been done under his own sanction — for that is the meaning ((?) 5 D. M. & G. 233 ; 3 Eq. Rep. 960. IN BREACH OF TRUST. 151 of acquiescence— either previous sanction or subse- quent ratification, as was said by Lord Eldon in Walker v. Symonds (e). When you speak of ac- au the cir- cumstances Quiescence vou must look at all the circumstances of must be ^ -^ •' looked at. the acquiescence. ... In order to be favourable to the trustee who alleges acquiescence, it must be a con- sent on the part of the persons who have a right to call the trustees to account that they shall be absolved from liability ; and that they wiU adopt the misappHcation of the funds as having been done with their assent and sanction It was the duty of the trustees, W., C, and N., not only to have had the money in their hands, but not having it in their hands, to have ex- plained to the infants as they came of age, what the rights of those infants were They were not lawyers ; even if they were, very likely they would not know the fact that the other trustees were responsible to them ; and I think neither in the form of acqui- escence, nor in the form of giving time, can these young men be deprived of their rights, or of asserting them against the trustees, and that the circumstance of this money having been placed in the hands of N. did not exonerate those in whose hand sit was not, but in whose hands it ought to have been, and that they are responsible The decree will be that the defend- ants W. and C. are, as between themselves and the plaintiffs, responsible, and they must be made to pay the money, together with all the costs occasioned by (e) WalTier v. Symonds, 3 Swanst. 64. lOa RELEASE TO TRUSTEE. their having repudiated such habUity and of the conse- quent investigation" {f). tcieaseof The course usually adopted by a trustee vs^ho has reach of rust, been persuaded into making an irregular investment, or otherwise acting so as to render himself liable for breach of trust, is to obtain a formal release from as many of his cestuisque trust as can be induced to join -requisites in it, or a deed of confirmation by them. No such in- strument will avail for the protection of the trustee except so far as it be executed by persons of full age, sui juris, and legally capable of binding themselves, acquainted with the material facts of the case, and also fully aware of their strict equitable rights. If any of the foregoing requisites be wanting, the transaction is liable to be scrutinized, and the strict rights of the ces- tuisque trust enforced, even after the lapse of many years ; notwithstanding a prior settlement of the trust accounts, and execution of a deed of release to the trustee (^). It has been already stated that where an express trust is subsisting, no lapse of time will operate as a (/) 5 D. M. & G. 233 ; see also lie Saxon Assurance Society, 2 John. & Hem. 412 ; Strange v. Fools, 4 Giff. 408. ( ^ ) Walker v. Symonds, 3 Swanst. 1 ; Wedderiurn t. Wed- derlwrn, 4 My. & C. 41, 50 ; Aspland t. Watte, 25 L. J. 53 (M. K.) In the last case payment had been made to the cestuis- que trust, and they had released in 1843 ; the circumstances being, how-eyer, peculiar, and the plaintiffs, at the time of the release, ignorant of their rights, they obtained a decree against the trustee in 1855. LAPSE OF TIME. 153 bar to the remedy of the cestuique trust ; while in cases of trusts arising by operation or construction of law, the Court of Chancery will be guided by the ana- logy afforded by the statutes of limitation affecting legal demands {K). No specific rule has been laid down, and no course of practice adhered to, with regard to the length of time that will be sufficient to deprive the cestuique trust of his right to re-open the accounts and show that acqui- escence in, or confirmation of, a breach of trust has not been such as to bind him. It is frequently difficult to determine at what period the cestuique trust first be- came fully aware of his rights, for it is not until after that period that he is open to the charge of negligence in enforcing them (i). AU the cases bearing upon this subject have been so rule laM di)wn by tile decided with regard to their special circumstances, and court, the Courts of Equity have carefuUy abstained from fixing any number of years, the lapse of which shall suffice to deprive cestuisque trust in general of their equitable rights. No trustee can confidently rely on a past settlement of accounts, or can be sure that his re- presentatives after his death will not be made defendants in a suit for the purpose of re-opening those accounts. He wiU, however, be approximately secure if he refuse to vary from the terms of the trust, or deviate from the (K) See page 92, ante. (i) Randall v. Errington, 10 Ves. 423 ; Adams t. Clifton, 1 Buss. 297 ; Wedderburn v. Wedderturn, 4 My. & C. 41. h5 RIGHT TO RELEASE. course marked out in relation to it by tlie rules of equity, without the safeguard of a deed of release and indem- nity, reciting the circumstances, and executed by all persons interested, who should be represented by a separate legal adviser. A trustee retiring from the trust, or finally settling accounts with the cestuisque trust, frequently requires from them a release or discharge in writing, from all claims and demands. To a formal release under seal he is not, in strictness, entitled, when he has performed the trust in all particulars, according to the tenor of the instrument creating it ; the right of the trustee to a release is confined to those cases where he has in- curred liability by departing from the trusts (k). Although it has been decided that a trustee cannot insist on obtaining a release as a condition of his distri- buting or transferring the r trust fund, it seems reasonable that on parting with it he should obtain a written dis- charge ; and it is apprehended that he would be justi- fied in having one prepared at the expense of the trust fund, and tendered for execution. Where all the cestuisque trust are of full age, and capable of executing, a release should by all means be obtained ; and more particularly where there has been any deviation from the strict line of duty on the part of the trustee. A release wiU not be disregarded or (Ji) King t. Mullins, 1 Drew. 308 ; and see Fulton t. Gil- mov/r, cited Hill on Trusts, 605 ; Re Wright's Trust, 3 Kaj & J. 421 : Re Cater's Trust, 25 Beav. 366. ADVANTAGE OF RELEASE; 155 set aside by a Court of Equity without ample consi- deration, and substantial grounds. The onus lies on all who have joined in it to show that it is not con- clusive evidence of a valid settlement of accounts ; and | the difficulty of their so doing will, of course, be in- creased as time is allowed to elapse, without any ef- fectual steps being taken by them to set it aside. Where, on the other hand, some of the cestuisque The only ab- solutely safe trust are under aare, or otherwise incompetent to bind discharge is ^ *■ under the their rights by the execution of a deed, the trustee court, must, on no account, vary from the strict course marked out by the rules of equity, however beneficial to all parties it may appear to do so. If the trustee is anxious to free himself from the anxieties caused by the trust fund, he may take advantage of the Trustee Relief Acts where those Acts apply, and where they do not apply he can only exonerate himself by institu- ting a suit, and thus committing the administration of the trust to the Court of Chancery. A decree dis- charging the trustee, duly made in a suit to which all persons beneficially interested are made parties, will protect him against all further claims of every kind. These are the only safe modes of relinquishing the burden of the trust, after it has been undertaken, and before it is fully executed {l). When the whole beneficial interest in the trust fund Jus dispo- T . 1 ■ T 1 • T nendi. IS vested m the cestutque trust, and there is no duty remaining unperformed, nor anything in the terms of (J) Lome T. Carter, 1 Bear. 426 ; Story, Eq. Jur. § 1276, n. 156 EQUITABLE TITLE MADE OUT. Efiuitable title not made out. Liability as an executor ceaaeB after statutory inotices. I^rotice of incumbrance. the trust to prevent an union of the legal and equitable interest, the jus disponendi may be exercised by the beneficial owner ; and an assignment or transfer must be made by the trustee either to him, or to such person as he may direct. If, however, the equitable title is not clearly made out to the satisfaction of his legal advisers, the trustee may be justified in refusing to assign : and in a case of difficulty and complication he may safely decline to act without the direction of the Court. A trustee who is also executor will, if well advised, before distributing the assets of the testator, issue public notices pursuant to 22 & 23 Vict. c. 35, after which he will have the same protection as though he had administered the fund under a decree of the Court ; and if, on making such distribution, he retains legacies in his hands as trustee, after appropriating or setting them apart for the benefit of the cestuisque trust, he will no longer be under any liability in his capacity of executor (m). An assignee of, or incumbrancer upon, the beneficial interest, may, by giving the trustee notice of his claim, secure his own priority, and effectually prevent the latter from making a payment or assigning to the ces- tuique trust; he will thus fix the trustee with a per- sonal liability, in the event of his afterwards assigning to the cestuique trust, or to any subsequent claimant {m) Clegg y. Romland, L. Rep. 3 Eq. 368. NOTICE OF ASSIGNMENT, ETC. 157 under him (w). The trustee should therefore, before distributing the trust fund, recollect whether any and what notices have been given to him by assignees of, or claimants upon, any of the shares. It has just been decided that a trustee is bound only by a formal and regular notice given to him hy the right person, and not by rumours, or the statements of third parties, or even by public announcements of facts which might influence the legal rights of the persons interested (o). The trustee is not allowed to set up a title adverse validity ot th e trust to to that of his cestuique trust ( p) : and where there is be assumed ' by trustee. (ra) Dearie t. Hall, 3 Euss. 1 ; Loveridge v. Cooper, 3 Euss. 30 ; Hodgson v. Hodgson, 2 Keen, 704 ; Bridge y. Beadon, 3 L. Eep. Eq. 664; Lloyd v. BanTis, L. Eep. 4 Eq. 222. It seems from this case that the title of a purchaser, who has giyen notice to the trustee, will prevail against that of assignees in insolvency, who have not given notice. (See Re Combe's Will, 1 GifE. 91 ; and stat. 12 & 13 Vict, c.106, s. 141.) A purchaser of an equitable interest in a chose in action should immediately give notice of the assignment to the trustee ; and the latter will then be bound by such notice. No priority is however gained by giving notice before the trustee becomes such in fact, Buller v. Plunltett, 1 Joh. & Hem. 441. If inquiries be made of the trustee as to the equitable title by an intending pm'chaser, the trustee must be careful as to his replies ; for a person purchasing in reliance on information so given may have a remedy over against the trustee, if misled. Brown v. Savage, 5 Jur. N. S. 1020 ; Slim v. Croucher, 1 D. F. & J. 518. ^ (o) Lloyd V. Banlis (M. K.), L. Eep. 4 Eq. 222 fin re Brown, L. Eep. 5 Eq. 88 ; and cases there cited. {p) Langley v. MsAer, 9 Beav. 60 ; Newsome v. Flowers, 30 Beav. 461. 158 ADVERSE TITLE OK only ground for suspicion, but no certainty, that the trust deed is impeachable and it has not been success- fully impeached, the trustee will be safe in assuming its validity {q). Claim ad- In the event of a claim being made adverse to the verse to the trust. title under which the trustee holds, and of which he was in ignorance at the time of his accepting the trust, he is justified in applying to the Court to be relieved of it (r). Whether he would be justified in doing so if he had notice of the adverse claim when first appointed trustee, appears to be less certain. This question arose in the case of Neale v. Davis («), where it was admitted that the trustees had notice, when they accepted the trust, of the existence of an adverse claim. On a bill being filed by the cestuisque trust for transfer of their shares of the fiind. Wood, V.-C, held, that the transfer could not be ordered except in a suit so constituted as to parties that the validity of the settlement could be decided. On appeal, Turner, L. J., concurred, observing that the knowledge of the adverse claim at the time of accepting the trust would not di- minish the right of the trustee to come to the Court for direction : A trustee could not pay away a fund while it was claimed hy other persons under an adverse title : Where all the persons interested were adult the trustee might protect himself; but this was not a case (q) JBeddoes y. Pvgh, 26 Bear. 407. (?•) Neale v. Davis, 5 D. M. & G. 258. (s) 5 D. M. & G. 258 ; 3 Eq. Eep. 530. ADVERSE CLAIM. 159 for an indemnity, for infants were interestedi Knight Bruce, L. J., however, dissented, and expressed a strong opinion that, having accepted the trust with a full knowledge of its circumstances, the trustees were bound to fulfil it. The Court being equally divided, the decision of the Vice-Chancellor stood. ( 160 ) CHAPTER VI. OF PROCEEDINGS DNDEE THE ACT FOB THE KELIEF OF TRUSTEES. The Trustee DIFFICULTIES arising from uncertainty as to the iden- UeliefAct. _ ° ■' tity, or the legal rights, of cestuisque trust, or from dis- abilities under which they may labour, or from con- flicting claims of creditors of the cestuisque trust, frequently render it unsafe for the trustee to take the distribution of the fund into his own hands. The only course formerly open to him was the institution of a suit in Chancery for the administration of the trust ; and the natural anxiety of trustees to avoid the expense and delay consequent on this course frequently induced them to undergo the risks attending an erroneous dis- tribution, rather than adopt a course which not only involved them to some extent in litigation, but also inflicted no inconsiderable expense on the cestuisque trust. Advantage of A trustee who is in doubt as to the proper mode of these acts to i • .1 The Act afEords no relief to trustees of shares in any other public company, or to holders in trust of the securities of any foreign GoTemment (18 Jur. 442). Stock in the books of any Canal Company in Ireland may be lodged under the corresponding Irish Act, 11 & 13 Vict. u. 68 (sect. 1). (/) Money or stock in the hands of a trustee, for a charitable purpose, may be lodged with the official trustee of the Charity Commissioners 18 & 19 Vict. u. 124, s. 22. See Chapter VHI., post. TRUSTEE RELIEF ACT. 163 reason the concurrence of the other or others of them cannot be had, the Court may order the lodgment to be made by the major part of them without the con- currence of the other or others ; and every lodgment so made is to be as valid and effectual as if it had been made on the authority or by the act of all the persons entitled to such moneys, annuities, &c. {g). The mode of obtaining relief provided by these option ai- ... .■..■, , . . ., lOAved to Acts is optional with, and not imperative upon, the trustees of . . proceeding trustee (A) : he is stiU at liberty to proceed by suit or under these otherwise, as though the Act had not passed. He would doubtless, however, subject himself to the costs of a suit instituted by him, where the mode of proceed- ing pointed out by the Act would have answered every useful purpose. The Act is so framed as to allow the trustee not only an option of instituting a suit where the Act would apply, but also an option of lodging the fund in Court under the Acts, where there is no diffi- culty whatever in the way of paying it over to the ces- tuique trust. Every trustee holding trust money, or securities of the description specified in the Act, is en- titled to take advantage of the Act, although such proceeding may be, on his own showing, unnecessary and even vexatious («'). (^) The corresponding Irish Act, 11 & 12 Vict. c. 68, which ■noil be found in the Appendix, contains the substance of both the English Acts ; as sect. 2 of the former provides for the case contemplated by the Act of 1849, viz., where the concurrence of all the trustees cannot be procured, (Ji) See Sandley t. Davies, 5 Jur. N. S. 190. (i) Mitohell t. CoU, 17 L. T. 25 ; Re Waring, 16 Jur, 652 ; 164 TRUSTEE BELIEF ACT. Applicable only to funds held on express trusts. Legacies may be paid into Court : costs of legatees. The Court will not put a wide construction on the words of the Act describing the parties who may avail themselves of its provisions. A trustee who is consti- tuted such by express declaration is in all cases at liberty to lodge money and securities in Court .: this course is not, however, open to all persons who may be liable to the payment of money. Thus, where a pur- chaser of real estate subject to legacies, raised the amount and lodged it in Court, and sought to establish a constructive trusteeship for the benefit of the legatee, Sir J. Eomilly, M. E., ordered that the money should be paid out to the person who lodged it ; observing that the Act was passed for the benefit of persons holding a fund affected by a trust created either by the original instrument, or by operation of law, and unable to ascertain to whom it is legally payable, and not for the benefit of owners of land subject to charges ; and that if it were held otherwise, the party entitled to the legacy would have to bear the costs of obtaining pay- ment, instead of receiving the amount clear fi'om the costs of raising it, as they were entitled to do (A). The Court has, on some occasions (Z), intimated that it was not the object of the Act to throw upon legatees costs and expenses which are properly payable out of Re Covington, 26 L. J. Ch. 238. The Court will however check unnecessary lodgments under this Act, by making the trustee pay costs, In re Knight, 27 Bear. 45 ; In re Woodiurne, 1 De G. & J. 333 ; In re Foligno, 32 Bear. 131. (h) In re Buckley, 17 Beav. 112. It seems from the latest cases, that any person holding trust-money may lodge it under the Act, In re Webb, L. R. 2 Eq. 456. (_l) In re BueMey ; In re Sharjpe, 15 Sim. 472. TRUSTEE BELIEF ACT.. 165, the testator's residuary estate ; and so place upon them a burden to which they were not subject before the passing of the Act. If this be the case, it is appre- hended that the Act has not been so framed in this particular as to carry into effect the intentions of the legislature. It is undoubtedly competent for an executor or administrator to pay the amount of a legacy into Court under this Act, and the legatee will probably be burdened with the costs and expenses attending the application for payment (m). Although an owner of land cannot himself pay in the amount of a legacy, he may accomplish that object through the instrumentality of the testator's executor or adminis- trator (n). The purchaser above referred to would, in aU probability, have attained his object, if, instead of lodging the amount of the legacies in Court in his own name, he had made eiforts to discover the personal re- presentatives of the testator, and the lodgment had been made by them. Advantage may be taken of the facilities afforded by Purchase this Act, on the occasion of a sale of real estate by be paia in, where trus- trustees under a power oi sale, who nave no power or tees for sale cannot giTC giving valid discharges for purchase money. In such discharges, cases a purchaser is frequently bound to see to the ap- plication of the purchase money ; and it may be incon- (ot) Where an executor pays a legacy into Court, under this Act, his costs of paying it in are to he borne by the estate ; but those of paying it out by the legatee. In re Ca/wthorne, 12 Beav. 56. (») In re Mussenden, 4 Ir. Jur. 389. Blackbume, L. C. (overruling the M. B.) TRUSTEE RELIEF ACT. Mode of procedure. IIow to be entitled. venient, if not impossible, to obtain the receipt of the cestuique trusts : By lodging the purchase money in Court under this Act, the difficulty may, however, be obviated. In a case where the construction of a power of sale came in question. Sir W. P. Wood, V.-C, said, " In the absence of a power to give a valid discharge for the purchase money, all difficulties of that kind might, I conceive, be removed by resorting to the provisions of the Aet for better securing Trust Funds and for Belief of Trustees (stat. 10 & 11 Vict. c. 96), which seems precisely to meet such a case as the pre- sent. It appears to me that if, upon a sale of this property, the purchase money were paid into Court, pursuant to the provisions of the Act, the defendant would be able to make a good title, and the purchaser might safely complete his purchase" (o). The mode of proceeding pointed out by the Act is very simple. The trustee who determines to lodge a trust fund in Court must file an affidavit, entitled in the matter of the Act, and also in the matter of the particular trust ; and the title must be sufficiently minute in description to distinguish it from other trusts that can arise from the will or settlement origi- nating it. Thus it is not sufficient to entitle the affi- davit "In the matter of the trusts of the will of A. B.," or, "In the ma'tter of the trusts of the settlement of C. D. and E. F." It should be further distinguished as " To the separate credit of the legacy of C. H." or <») Cox V. Cox, 1 Kay & J. 254. TRUSTEE RELIEF ACT. 167 " the share of J. K.," or as the case maybe. The heading of the account (in the Accountant-G-eneral's Books), to be opened as hereafter stated, will corre- spond with the title of the affidavit. Where the account is opened with too general a title, the Court has in some instances refused to deal with the fund -until transferred to a more particular account (p). Such a transfer may, under some circumstances, require a dis- tinct application to the Court by the trustee, at his own expense ; however, when the trustee has appeared on the hearing of a petition to draw out the fund, and all the facts have been admitted, a transfer of the fund to a separate account has been ordered, without any sub- stantive motion for that purpose (q). The affidavit to be made by the trustee is the only Form of declaration of trust on which the Court acts ; it must, orders ot 1848. therefore, state all the facts necessary to enable the Court to deal with the fund. The General Orders {r) require the following particulars to be stated in every affidavit under this Act : — The name and address of the trustee, and the place where he is to be served with any petition, or notice of any proceeding, or order of the Court, relating to the trust fund. (j>) In re Joseph, 11 Beav. 625 ; In re Everett, 12 Beav. 485 ; In re Godfrey, 2 Ir. Ch. Rep. 112. For headings of accounts see In re Jervoise, 12 Beav. 209. As to the mode of preparing the aflSda-rit, see also 16 Jur. 652 ; 1 Jur. N. S. 974. (q) In re Wright, 15 Bear. 367 ; vide In re Levett, 5 De G. & S. 619. (r) XT J. Consol. Order. See Appendim. 168 TRUSTEE BELIEF ACT. Statements in affidavit Lodgment of fund. The amount of stock, securities, or money which he proposes to deposit or to transfer, or to pay into Court, to the credit of the trust. A short description of the trust, and of the instrument creating it, and the names of the parties interested in or entitled to the fund, to the best of the knowledge and belief of the trustee. The submission of the trustee to answer all ^uch in- quiries relating to the application of the stock, secu- rities, or money transferred, &c., under the Act, as the Court may think proper to make or direct («). In addition to the foregoing particulars, the affidavit should state any special circumstances which have arisen to throw difficulties in the way of administering the trust; it should not, however, go into details further than may be necessary to explain the facts of the case. When the sum to be paid in is a balance admitted by the trustee as due by him, the whole par- ticulars of the account need not be stated ; the general result arrived at will be sufficient (t). The affidavit must be sworn and filed in the usual manner, and an office copy of it produced in the office (s) The Gen. Order of the Court of Ch. in Ireland (Oct. 1848) also requires the above particulars to be stated in the affidavit of the trustee. Where the amount of a legacy is paid in, the Irish Act (sect. 6) requires, in addition, a statement in the affidavit to the effect that all legacy duty (if any be payable thereon) has been duly paid. This is not affected by the Orders of Michaelmas T. 1867. (i) In re Courtois, 10 Ha. App. 64 ; In re Waring, 16 Jur. 653. TEUSTEE BELIEF ACT. 169 of the Accountant- General. The necessary directions will then be given by him for transfer, deposit, or pay- ment of the stock, securities, or money, respectively, to the account of the particular trust ; and such transfer, deposit, or payment will be certified in the usual way (m). If the affidavit made by the trustee, on lodging the investment /» 1 ■ , • 1 rt> 1 . 0^ trust fund m court, contain no statement to the effect that it moneys by T T 1 7 /> 1 -. -•• . Accountant- is deemed unnecessary to have the fund or the divi- General. dends invested, the Accountant-General is at liberty to invest, as soon as conveniently may be, the cash paid into court in Bank 3 per cents, (consols) in the matter of the particular trusts. In cases of dividends or in- terest arising from stock or securities transferred, such dividends or interest, and all accumulations of the divi- dends, of the stock in which such cash shall be in- vested, and of stock or securities, &c., may be from time to time invested in like manner, without any special order of the court, and without any formal request for that purpose. If, however, at any time a request in writing by any claimant on the fund, that such investment should be discontinued, be left at the office of the Accountant-General, he is at liberty to («) XLI. Consol. Order. See Appendix. No order is neces- sary to enable a trustee to lodge trust funds in court under this Act. In re Biggs, 11 Beav. 27. The practice in Ireland differs in this particular : an attested copy of the affidavit must be pro- duced in the Registrar's office, where a side-bar rule will be entered, authorizing the lodgment of the fund in the Bank of Ireland, to the credit of the particular trust. The affidavit and side-bar order are then produced to the Accountant-General. 2 & 3 Gen. Order, 1848. r. I 170 TRtrSTEE BELIEF ACT. iNotice of lodgment in Court. Effect of lodgment. cease making any further investment, until some order of the Court be made in that behalf (x). After the lodgment of the fund in Court haa been completed, it becomes the duty of the trustee to give notice of it to aU the persons named in his affidavit, as interested in, or entitled to the fund (y). It is import- ant for his security, not only that the affidavit should mention them, but also that they should have notice of the lodgment ; for were the fund paid out without the knowledge of a party entitled, his rights as against the trustee might not be prejudiced by the proceeding under this Act. Where all the directions of the Act have been duly complied with, the burden of adminis- tering the fund is transferred from the trustee to the Court. To the extent of the money or securities lodged by him, the trustee is completely exonerated from the trust {z). It is competent for a trustee" to (») Consol. Order. EiTestinent of the trust fund in new 3 per cent stock has heen allowed by the Court. Zn re Dwmter, 3 Eq. R. 44:9. The corresponding order of the Court in Ireland [Ord. Ch. Feb. 1853] directs the investment in 3 J per cent, stock now new 3 per cents. But by the General Orders of 1861 under the new Act, funds under the control of the Court may be invested in bank stock and certain other securities. See page 123, ante. ( y) Consol. Order. By leave of the Court any particular service may be dispensed with (i2e Hansford, 7 W. R. 199), or substituted (iJe Colson, 2 W. R. 111). • (x) In re Upfull, 3 Mac. & G. 286 ; Goode v. We«t, 9 Ha. 378. A trustee who, by making an improper investment, has altered the character of the fund, will not, however, be discharged by lodging the unauthorized securities in Court under this Act. Att.-Gen. v. Alford, 18 Jur. 592. A lodgment in Court does not affect any further liability of the trustee. See Thorp v. Thorp, 1 Kay & J. 438. TRUSTEE RELIEF ACT. 171 lodge a part only of the sum actually payable' by him ; nor have his oestuisque trust a,ny mode of recoviering the balance, unless they pE<3ceed under the ordinary jurisdiction of the Court. In the same way a trustee may deduct a sum for his costs and expenses ; and if he deduct more thau the proper amount,' the parties entitled to the fund have no remedy without instituting a suit against, him (a). The fund being lodged in Court in the manner pre- Administra- scribed by the Act, the Court is empowered to make fund, on such orders for transfer or payment, and for the adtni- nistration of the fund generally, as it may think fit. Such orders are to be made upon Petition, to be pre- sented in a summary way (6) : and all orders are to have the same authority and effect as if made ih a suit regularly instituted (c). AU petitions presented, and affidavits filed, are to be properly entitled in the matter of the Act, and of the particular trust. The trustee is entitled to notice of any application rdade to the Court respecting the fund ; and he is required to give notice of any apphcation by him, to the parties interested in or entitled to the fund (d). Neither the Act itself, nor the Genera;! Orders made scmce of in pursuance of it, prescribe what other persons are to have notice of applications for payment. In accord- petition. (») In re Bloye, 1 Mac. & G. 480 ; 2 Hall & T. 140. (J) The Court will not pay out the fund on motion, a petition is indispensable, Exp. Stock, 5 Ir. Jur. 341. (c) T. Belief Act, sect. 2. As to the persons who oiight to be served, see 6 W. R. 487 ; 9 "W. R. 475 ; 9 W. R. 830. (;. 45, sect. 23 ; 6 Vict. c. 18, s. 74. (i) Albemarle (Earl of) v. Rogers, 2 Ves. jun. 477 j see 2 Y. & Coll. C. C. 139. The right of nomination may be exer- cised bj an infant cedwique trust ; ArtMngton v. Coverley, 2 Eq. Ab. 518. As to exercise of this right where the parties are numerous, see 6 D. M. & G. 439. (A) See Poroys t. Slagrave, 4 D. M. & G. 458. a86 IMPROVEMENT OF LAND. Land Im- provement Act, 1864. Leases of settled estates. cumstances of each, case, and no general principle can be therefore deduced from them (I). The Improvement of Land Act, 1864 (27 & 28 Vict, c. 114), enables trustees in the actual possession and receipt of the rents of lands to carry out certain im- provements, as drainage, reclamation of land, erection of farm buildings, &c. Where from the nature of the case a trustee has to repair a mansion house, he must be careful that the repairs are such only as are abso- lutely necessary, and not expensive improvements of an ornamental character {ni). The difficulties in the way of granting leases of lands in settlement were to a great degree removed by the "Act to facilitate Leases and Sales of Settled Es- tates" (n), which, after reciting that " it is expedient that persons in possession of land, for certain limited interests, should have power to grant agricultural or (Z) The following cases on the management of trust estates may be referred to : — Slake v. JBunMi/ry, 1 Ves. jun. 194 and 514 ; Tidd v. Lister, 5 Mad. 429 ; Somes v. Strathmore, 8 Jnr. 92 ; Denton v. Denton, 8 Jnr. 388. As to compounding debts and arrears of rent, see Jevon v. Bush, 1 Vem. 342 ; Blue v. MarslhdU, 3 P. W. 381 ; Alexander t. Alexander, 12 Ir. 'Ch. Eep. 1; Re Alexander, 13 Ir. Ch. Eep. 137; Wiles t. Oresham, 5 D. M. & G. 770. As to power of granting leases, see Naylor T. Arnitt, 1 Euss. & M. 501 ; Drohan v. Drohan, 1 Ball & B. 185. As to obligation to insure house property, see Doison v. Zand, 8 Ha. 216 ; My v. Pry, 27 Beav. 146. (to) Bi-idge t. Bronm, 2 Y. & C. C. C. 181 ; Bleazard v. Whalley, 2 Eq. E. 1093. (») 19 & 20 Vict. c. 120 [England aod Ireland]. The Amendment Acts are 21 & 22 Vict. c. 77, and 27 & 28 Vict, u. 45. SETTLED ESTATES ACT. 187 occupation leases thereof, at a rackrent for a reason- able period," enacted, tlifl.t leases may be made on cer- tain tei-ms and conditions prescribed by the Act. Section 10 provides, that when the Court shall deem it expedient that any general powers of leasing any settled estate, conformably to the Act, should be vested in trustees, it may, by order, vest any such power ac- cordingly, in the existing trustees of the settlement. Where the settlement contains no leasing power, and it becomes desirable that leases should be granted, the proper course wiU be to apply to the Court under this Act, for an order vesting " general powers of leasing " in the trustees ; and such powers they wiU be careful to exercise in aU respects in conformity with the terms of the power. It has been usual in family settlements of land to Trustees to vest an estate of freehold in trustees, in order that the tingent re- . . . mainders. interposition oi this estate may prevent the operation of a rule of law, according to which the contingent remainders would be defeated or destroyed by the for- feiture or other determination of the preceding estate of a tenant for life. By the statute 8 & 9 Vict. c. 106 (sec. 8), aU contingent remainders are rendered ca- pable of taking effect, notwithstanding the determina- tion, by forfeiture or otherwise, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. This enact- ment does not, however, affect the necessity for a contingent remainder taking effect as formerly, if not previously determined by forfeiture, surrender, or merger. The estate for preserving contingent re- 188 SETTLED ESTATES. An inquiry into their duties not necessary. Powers and duties of trustees for mainders will therefore continue to be necessary for all purposes, except to preserve them from destruction by the act of the tenant for life (o). The effect of the late Act, however, and of the Fines and Recoveries Act (p), is to render the estate of trustees to preserve contingent remainders one of little practical importance, as their concurrence in any Act can now scarcely ever be required. The uncer- tainty as to what circumstances would justify such trustees in joining in a deed to destroy the contingent remainders, it is not, therefore, material to observe upon. If called on to join in any act, their safest course would, doubtless, be, to refuse to do so, without the direction of the Court (q). The only active duty that was required of trustees to preserve contingent remainders, was interference to prevent waste of the estate (by cutting down of timber, &c.), by the tenant for life (r). The trustees acting under a power of sale, or words amounting to an authority to sell, or on whom the duty of selling devolves from the nature of the trust, are alike " bound to bring the estate to the hammer under every possible advantage to the cestuisque (o) 1 Jarm. "Wills, 2 edit. 742. ip) 3 Sc i Will. IV. u. 74, sects. 22, 27, 29, and 34; Sugd. Real. P. Stat. 181, et seq. (§■) " It is better for trustees never to destroy the remainders, even if the tenant in tail of age concurs, ivithout the direction of the Court," per Lord Eldon in Bisooe v. Perkins, 1 Ves. & B. 491. {r) Garth v. Cotton, 1 Ves. 524, 546 ; 1 Lead. Ca. Eq. 451. As to dutj' of trustee to uses to bar dower, see Collard v. Roe, 6 W. R. 348, Q. B. TRUSTS FOR SALE. trust (s) :" and this maxim contains nearly all that can be required for their guidance in selling. Trustees for sale are not at liberty to leave the property unsold, and to raise money by a mortgage. If the property is under such circumstances depreciated they may have to make good the loss {£). They must proceed to sell : and in so doing they are bound to use such exertions as an ordinary vendor would use in order to obtain a good price for his own estate. If a sale by auction (a mode of selling which should generally be preferred by trustees) be not attended with a satisfac- tory residt, the trustees may safely accept an adequate offer to purchase by private contract ; or they may sell in separate lots, or partly at one time and partly at another. Trustees are bound to sell for the highest price that is offered (m), but with regard to all the details of the sale, they are at liberty to exercise a discretion (v). Their object should be the common advantage of the cestuisque trust; and so far as they are not controlled by the terms of the trust, they may, in the bona fide exercise of discretion, adopt such measures as may seem best adapted for the attain- ment of that object. (s) Per Lord Eldon in Dowries v. Brazebrooh, 3 Mer. 208 ; see Fry y. Fry, 27 Beav. 14i. (i) JDevaynes v. RoHnson, 24 Bear. 86 ; and see 5 Jur. N. S. 104T. («) Harper v. Hayes, 2 Giff. 210 ; but they should not sell to one of their number, Denton v. Donner, 23 Bear. 285. (v) PecTiel v. Fomler, 2 Anst. 550 ; Ord v. ^'oel, 5 Madd. 440 ; Mortlock v. Buller, 10 Ves. 292 ; WilUns v. Fry, I Mer. 190 SALE BY AtrCTIOKT. Sale by Auction Act, 1867. trustees should sell. The provisions of the " Sale of Land by Auction Act, 1867" («), must be attended to by trustees for sale who determine to sell by auction. That Act settles a long disputed question as to the employment of a " puffer,'' or person bidding on behalf of the vendor, by declaring that a sale which is invalid at law by reason of the employment of a puffer shall also be invalid in equity ; and by enacting that the particulars and conditions of sale shall state whether there is a reserve price or not, and if there be no statement warning purchasers of a reserved price, no puffer, or bidder for the vendor, shall be allowed to bid. But the vendor may, if he think fit, expressly reserve the right to bid. This Act further prohibits the Court of Chancery from opening the biddings, ^cept on the ground of fraud or improper conduct in the manage- ment of the sale. The time of sale, no less than the mode of sale, must be determined on by the trustees with a due re- gard to the directions given by the instrument creating the trust, and also to the interests of all their cestuis- que trust {y). General words directing a sale " with 268 ; Soison v. JBell, 2 Beav. 17. As to sale by prirate con- tract, see Davey t. Durrani, 1 Dfe G. & Jon. 535 ; as to the employment of an agent to conduct the sale, see JRossiter v. Trafalgar Company, 27 Beav. 277 ; as to special conditions of sale, see Falkner v. Equitable Society, i Drew. 352. (as) 30 & 31 Vict. c. 48— extending to Ireland. ( y) If an estate be given to A. for life, and after then a sale is directed, the trustees cannot sell during the lifetime of A. Johnstone v. Baber, 8 Beav. 233. SALE OF TRtrST-E'STATES. 191 all convenient speed," will not render it obligatory on the trustees to sell without such an interval as may be in their judgment required for preparation ; nor will a direction to sell " at such time, and in such manner as the trustees shall think fit," justify them in postponing the sale indefinitely, for to do so might interfere with the intention of the settlor by affecting the relative interests of tenant for life, and those in remainder (2). " Every trust deed for sale is upon the implied condi- tion that the trustees will use all reasonable diligence to obtain the best price ; and that in the execution of the trust they will pay equal and fair attention to the interest of all persons concerned. If trustees, or those who act by their authority, fail in reasonable diligence — if they contract under circumstances of haste and improvidence — if they make the sale with a view to advance the particular pm-poses of one party interested in the execution of the trust, at the expense of another party, a Court of Equity will not. enforce the specific performance of the contract" (a). It is presumed that trustees may exercise a discre- Trastces tion as to buying in the estate, notwithstanding a case the sale. before Shadwell, V.-C, where trustees for sale had (p) Buxton v: Buseton,, 1 My. & C. 80 ; Walker v. SJwre, 13 Ves. 391 ; Garrett v. Nohle, 6 Sim. 504 ; Fry v. Fry, 27 Beav. 144. (a) Sugd. V. & P. ; see WUte v. Oaddon, 8 Cla. & P. 766 ; Sugd. H. of L. 589, et seq. The Court will not cotnpel perform- ance of any contract for sale entered into by a trustee which would in itself be a breach of trust, Sneesby v. TJwrne, 7 D. M. & G. 399 ; MulhoUand v. Belfast, 9 Ir. Ch. R. 204. 192 SALE OF TETJST-ESTATES. put up the estate to auction, but the price being con- sidered insufficient they bought in, and some years afterwards the property was sold for a much lower sum ; and they were held responsible for the differ- ence (b). Probably special circumstances influenced the decision of the Court ; for it is not to be supposed that trustees, exercising a discretion bona fide, and miscalculating the value (as any vendor is liable to do), would in all cases be held liable for the loss sus- tained. Doubtless this case led to the express enact- ment enabling trustees of the trusts created since August, 1860, to buy in and resell (c). Powers ot The intention of the creator of the trust is, in the sale. construction of trusts for sale as elsewhere, to be fol- lowed as closely as possible. Where an intention appears that the estate shall be converted into money, it is not competent for trustees for sale to sell in con- sideration of a rentcharge or annuity (d). And it has been held that a bequest of leaseholds to certain per- sons, upon trust to sell and invest the proceeds for the benefit of persons, some of whom are infants, wiU not enable the trustees to grant an underlease ; and the Court has refused to enforce specific performance of an agreement to take such an underlease (e). Nor are trustees for sale authorized to execute a mortgage, (J) Taylor v. Tabrum, 6 Sim. 281. (c) 23 & 24 Vict. c. 145, s. 2; see Appendix of Statutes. Xa) 2 Sugd. Powers (7 edit.) 488. (e) Mans v. Jackson, 8 Sim. 217 ; Wms. Exors. (5 edit.) 845. TRUSTEES FOE SALE. 195 where the terms of the trust indicate an intention that the estate should be absolutely converted into money (y ) ; but where the intention appears to be not that the estate shall be converted into money, but only that certain charges shall be paid out of the estate, the trustees may effectuate that intention by raising money when they ^ o jjj^y mort- on mortgage. This question arose in a case (gr) where gage, the estate was devised, charged with debts, to trustees upon certain trusts, in strict settlement, with a power of sale and re-investment of the money. Lord Cot- tenham held that a power was given by implication to mortgage the estate for payment of the debts ; he ob- served that, so long ago as 1724 (A), it seems to have been assumed as settled, that " a power to sell impHes a power to mortgage, which is a conditional sale," and no case had been quoted throwing any doubt on that proposition : This, however, was not a mere power to sell, it was a trust to raise money out of the estate to pay debts : It would, indeed, be most injurious to the owners of estates charged, if the trustee could effect the object of his trust only by selling the estate (j). If a mortgaged estate be vested in trustees on trust Equity ot ° ^ redemption. to sell and pay off the mortgage, they may if they (/ ) Haldenby v. Spofforth, 1 Beav. 390 ; Page v. Cooper, 16 Beav. 396 ; Devaynes v. Sobinson, 24 Bear. 86. Nor does a trust to raise money by mortgage justify a sale, Drake v. Whit- more, 5 De G. & S. 619. (^) Ball T. Harris, 4 Myl. & C. 264, see 268. (K) Mills V. Banls, 3 P. W. 1, see p. 9. (i) Ball V. Barns, 4 Myl. & C. 268. V. K 194 TRUSTEES FOB SALE, IrapHed power of sale. Powers of sale and ex- change. think it expedient sell the property subject to the mortgage (Jt). Where a power to sell out of the funds and invest in land was conferred, but no express power of se llin g the land, it was held that the trustees had a power of sale over real estate purchased by them (l). It has long been vexata qucestio, whether the powers of sale and exchange, usually conferred on trustees of settlements, will authorize them to effect a partition. In the case of Abel v. Heathcote {m), where the power was to make sale of, or convey in exchange, the power received a liberal construction, on the ground that a partition was in effect an exchange ; as the consequences and effects of a partition and ex- change, as to the interests of the parties, are precisely similar. In another case the power authorized a sale only, and it was decided by Lord Eldon that such power did not authorize a partition whatever a power of ex- change might do ; and he expressed the same opinion on subsequent occasions (w). " It might be true that a power of exchange does not necessarily include a power to make a partition in all cases : where, for instance, the partition is to be made between three or more parties, as was the case (It) Manser v. Dix, 8 D. M. & G. 703. Q) Tait T. Lathlury, L. R. 1 Eq. 174. (to) 4 Bro. C. C. 277 ; 2 Ves. jun. 98. (re) M' Queen v. Farquhwr, 11 Ves. 467 s see 4 Bro. C. C. 277 (note) ; AUy.-Gen. t. Samilton, 1 Mad. 214. EXCHANGE, AND PARTITION. 195 in Abel v. Heathcote; but it does not follow from thence, that where there are only two parties, the ex- change of a moiety of one part of the land held in common, for a moiety of the other, is to be considered bad, because it ejQfectuates a partition" (o). A parti- tion may, however, be made by a circuitous pi'ocess when there is a power of sale. The undivided part of the estate may be sold, and the purchase-money may be afterwards laid out in the purchase of the divided part ; and although the sale be fictitious, it has been asserted that the transaction cannot be impeached (p). Where power was given to the trustees to sell and a power to dispose of the testator's real estate, and to give re- authorize a partition. ceipts ; it was argued that the words dispose of were placed in contrast with the word sell, and authorized, by implication, a partition, which was necessary to enable the trustee to sell the property to advantage. Lord Romilly, M. E., after reviewing all the former decisions, held that the words rehed on, amounted to no more than a simple power of sale ; and that conse- quently the discretion given to the trustees was con- fined to a sale, and disposition by sale, of the property : It was therefore not competent for the trustees of the will to enter into any vaHd and binding agreement for (tf) Per Rolf e, B. (Lord Cranworth) in delireriag the judg- ment of the Excheq. in Doe v. Spencer, 2 Excheq. K. 752, vide 770. ( ^) 2 Sugd. P. 482 (7 edit.) It is clear that a power to make partition of an estate mil not authorize a sale or exchange of it (ib. 479). k2 TRUSTEES FOE SALE. partition, without the consent and authority of all their cestuisque trust {q). Trustees for sale acting under a deed or will exe- cuted subsequently to 28th August, 1860, wiU have their powers defined and enlarged by the following clauses of Lord Cranworth's Act (23 & 24 Vict. c. 145). Section 1 provides, that trustees with a power of sale may sell the property either together or in lots, and either by auction or private contract, and at one time or several times ; and (if the power shall authorize an exchange) may exchange lands for other lands, in England, Wales, or Ireland, and on such exchange may give or receive money for equality of exchange. Section 2 authorizes trustees for sale to insert spe- cial terms and conditions of sale, and to buy in at any sale, and to rescind or vary any contract, and to re-seU without being liable for any loss occasioned thereby. Section 3 gives to the persons empowered to sell or exchange as above, full power to convey or otherwise dispose of the hereditaments, either by way of revo- cation and appointment, or otherwise, as may be ne- cessary. Section 4 provides, that the money received on such sale or exchange shall be laid out as directed by the (g) Srassey t. Chalmers, 16 Bear. 228. Several other points arose in this case, which afterwai-ds came before the Lords Justices on appeal. On the point mentioned above, they expressed concurrence in the decision. A partition suit was, however, instituted ; and the partition theretofore made, being .for the benefit of all parties, was adopted. 4 D. M. & G. 534 536. " ' RECENT ACTS. ■will or deed creating tlie trust ; and if no such indi' cation be contained in it, then the money shall be re-invested in the purchase of other freehold or lease- hold hereditaments in England, Wales, or Ireland, subject to the subsisting uses or trusts ; and such here- ditaments so purchased or taken in exchange shall be settled to the uses, for the trusts and purposes, and subject to the powers and provisoes to which the hereditaments so sold or exchanged would have been subject. But no leasehold tenement shall be purchased under the last-mentioned power, which is held for less than sixty years. . Section 5 empowers the trustees to apply the pur- chase-money, &c. in paying off mortgages or other incumbrances. Section 6 prohibits the re-investment of money arising from sale of lands in one country, in land in another country ; so that the produce of English estates cannot be laid out in Ireland, and vice versa; nor can estates situate in the two kingdoms be ex- changed. Section 7 directs, that money shall be invested at interest, until laid out in the purchase of lands as above mentioned. Section 8 empowers the trustees of renewable lease- holds to renew, and directs them so to do on the requi- sition of any person beneficially interested, but thi» does not apply to any case where the person in pos- session for life is entitled to enjoy the property without TETTSTEES FOE SALE. any obligation to renew the lease, or to contribute to the expense of renewal. Section 9 enacts, that if money be required for pay- ing any equality of exchange, or renewing any lease as aforesaid, the trustees may apply the trust funds for that purpose ; and, if no funds be available, they may mortgage the hereditaments to raise the required sums ; and no mortgagee under this section shall be bound to see that such money is wanted, or that no more is raised than is required. Section 10 directs, that no sale, exchange, &c. as aforesaid, shall be made without the consent of the person appointed by the deed or will to consent, or of the tenant for life of the hereditaments. As before stated, this act applies only to trusts cre- ated subsequently to the 28th day of August, 1860(g'). Trustees, empowered to sell for payment of debts or other charges, should be careful, before executing the trust, to ascertain, by means of a valuation, that after payment of specific charges there will be a surplus available for the costs and expenses incurred in carry- ing out the trust. In a recent case of this nature, the trustees had instituted a suit to administer the trust, and the sale took place under decree ; but the fund produced proving deficient for payment of the charges prior to the trust, all the costs were dis- allowed (r). (j) These enactments will be found in the Appendix. (r) White v. Villiers, 3 Ir. Ch. Kep. 125. SETTLED ESTATES. 199 The Act to facilitate leases and sales of settled ^^^^j'^'^IJ"" estates («) enables the Court of Chancery, in certain g^^j^ cases, to authorize sales of settled estates ; where such j^'^'^"* *" sales shall appear proper and consistent with a due regard to the interest of all parties entitled under the settlement. Section 19 provides, that notice of any application to the Court under the Act shall he served on all trustees who are seised or possessed of any estate in trust for any person whose concurrence is required. Section 23 declares, that purchase-moneys arising from sales under the Act may, if the Court shall think fit, be paid to any trustees of whom it shall approve. Section 24 directs, that the application of the money ma,y, if the Court shall so direct, be made by the trustees, without any application to the Court, or otherwise as may be ordered (t). In conveying to a purchaser, a trustee for sale cannot Conveyance be required to convey by any. other words or descrip- chMer. tion than that by which the conveyance was made to himself (m) ; nor is he bound to enter into any covenants for title except the usual covenant against his own acts (x). The purchase-money should be received by the trustee (s) 19 & 20 Vict. 0. 120 [England and Ireland]. (i) As to sales under this Act, see Be Mallins, 3 Giff. 126. As to the respective rights of tenants for life and remainder-men, to the incidental profits of a settled estate, see Cowley v. Welles- ley, L. E. 1 Eq. 656. (u) Goodson v. Ellison, 3 Russ. 594. (ic) Stephens t. Sotham, 1 Kay & J. 571. BEGISTEEED TITLES. himself, and if there are several it should be lodged in a bank to their joint account. A solicitor or agent, unless specially authorized, cannot give a vaUd dis- charge (y). The Transferof Land Act (25 & 26 Vict. c. 53) pro- vides that trustees for sale of the fee simple may apply for registration under the Act (z). Also that they may apply for a judicial sale by the Court of Chancery with indefeasible title (a). The trusts, if any, on which registered land is held, are entered on the Record of Title kept under the Act, and this is done by reference to a printed copy of the deed lodged in the Land Registry Office (6). The analogous Act in Ireland (c) affords an option of either recording trustees for sale as owners with- out mention of the trusts, or of stating the trusts. In the former case the trustees can at any time sell and transfer to a purchaser, who can make no inquiry as to the nature of their title ; and by the entry of a suitable note "survivorship" may be excluded so as to prevent any unauthorized sale by one trustee. Both the Acts provide for the authorizing or com- ( y) lie Fryer, 1 Kay & J. 317 ; see Yiney v. Chaplin, 1 De G. & Jon. 468. As to the powers of trustees who are di- rected to sell an aliquot part of an estate, see 32 Beav. 555; 34 Beav. 107. ,(«) Section 4. (a) Section 41. (*) See "Land Transfer, &c." by Urlin & Key, pp. 55, 103. (c) 28 & 29 Vict. c. 88, ss. 2, 41, 48. TEUSTEES' RECEIPTS. 201 pelling a transfer of trust property, and the vesting of trust property, as under the " Trustee Acts " {(l). Well-drawn instruments creating trusts for sale of Receipt oi '-^ trustees not real estate expressly confer on the trustees the power '",?!"/i™'" of giving valid discharges for the purchase-money. As charge tor this clause is sometimes found to have been omitted, money- and as the new enactments are not retrospective, it will be necessary to inquire how far, in the absence of such authority, the receipt of the trustees alone will be a valid discharge (e). The persons entitled to the produce of the sale are in Equity considered the owners ; and the trustees are merely looked upon as instruments for carrying the trust into execution. PrimA facie, therefore, a receipt for the purchase-money must be signed by the bene- ficial owners. This rule apphes in all cases where no intention, express or implied, can be found in the in- strument creating the trust, that the receipt of the trustees shall of itself be a sufficient discharge (/"). Thus, in the ordinary case of lands conveyed or de- vised in trust for the payment of certain charges or {W) English Act, section 95 ; Irish Act, section 31. (d) A general power to trustees for sale, of giving valid dis- charges, was provided by Stat. 7 & 8 Vict. cap. 76, sec. 10, which came into operation on the 1st January, 1845. This power was altogether taken away by Stat. 8 & 9 Vict. c. 106, s. 1, as from the 1st October, 1845. It is now conferred as to deeds &c., exe- ■cuted after the passing of the new act, as hereafter stated. (/ ) There is no exception in favour of sales under a decree of the Court of Chancery, or under an Act of Parliament. All the cases on this subject are collected in the works of Lord St. Leonards and Mr. Dart on V. & P. k5 TRDBTEES' EECEIPTS FOE legacies specified in the deed or will, or in a sche- dule to it, the purchaser is bound to ascertain that his purchase-money is applied in payment of such charges (g). The reluctance of the Court to imply a power in trustees for sale, of giving valid discharges, was ex- emplified in a case (A) where a testatrix by her will declared that every person thereby made tenant for life should have such powers of leasing, selling, and ex- changing as were by her father's wUl given to the tenants for life and in tail mentioned in his will, or to the trustees thereof. The wiU of her father only con- tained a declaration that it should be lawful for the trustees, at the request of the tenant for life, to dispose of and convey, either by way of absolute sale, or in exchange, any part of the hereditaments, &c., and de- clared that it should be lawful for the trustees to sign and give any receipt or receipts for the money for (g) " Where a purchaser is bound to see the money applied according to the trust, and the trust is for the payment of debts or legacies, he must see the money actually paid to the creditors or legatees. In cases of this nature, therefore, each creditor or legatee, upon receiving his money, should give as many receipts as there are purchasers, so that each purchaser may hare one. Or, if the creditors or legatees are but few, they may be made parties to the conveyances. Another mode by which the purchasers may be secured is, an assignment by all the creditors and legatees of their debts and legacies to a trustee, with a declaration that his receipts shall be suflScient discharges ; and then the trustee can be made a party to the several conveyances." Sugd. V. & P. (edit. 1851) 522. (A) Cox T. Cox, 1 Kay & J. 251. PXJRCHASE-MONEY, ETC. 203 wMch the same should be sold, &c., and then proceeded to declare that such receipts should be sufficient dis- charges. It was held that the powers of the tenant for life, under the will of the testatrix, extend to giving receipts. Sir W. P. Wood, V.-C, observed that the power of giving receipts was a power separate from powers of sale and exchange : It was a power by no means inserted as of course in legal instruments, it was often excluded, and where excluded, had never, except under very special circumstances, been held to be capable of being implied (i). Another instance of the strictness with which the strict con- struction of Court construes this power was where trustees were power. empowered to receive a sum of stock with a power of varying securities. The same eminent judge decided that they could not give * discharge for cash {k). But it seems to be settled that a power of varying (i) The rules applicable to sales of personal and chattel pro- perty by executors, are very different. An executor, with or without the concurrence of his co-executor, may sell, assign or mortgage, either at law or in equity, any part of his testator's personal estate, and whether it be specifically bequeathed or otherwise; nor need a purchaser make any inquiry as to the necessity for such sale, or the destination of the purchase money. Praud or collusion may, however, vitiate the sale ; and a purchaser who has notice that the property is specifically bequeathed, or that there remain no debts or legacies unsatisfied, could not safely purchase from the executor. All the cases are collected in Ld. St. L. on. V. & P. ; Wms. Exors. (6 edit.) 633, et seq. ; Lewin on Trusts, 5 ed. 353. (*) Pell V. Be Winton, 2 De G. & Jon. 13. IMPLIED POWERS or securities will give by implication a power to the trustees to give receipts (/). An intention that the receipt of trustees for sale shall be a sufficient discharge, will be implied wherever the deed or will creating the trust contains a trust of so general and unlimited a character as to render it prac- tically impossible for the purchaser to see to its execu- tion. Thus where the sale is directed for the payment of debts generally, and payment of specific sums be directed in addition, the receipt of the trustees will suifice (m). The case wiU not be altered after payment of all the debts; for the question is one of construction of the deed or will, and this can be affected by no subsequent event (w). This is a rule of construction, not depending for its application on the state of affairs at the testator's death or at any subsequent period. It was finally established by Lord Lyndhurst in the case oi Forbes v. Peacock (o). (Z) Zock V. Lomas, 5 De G. & Jon. 326. (to) Rolinson v. Lomater, 17 Bear. 592 ; 5 D. M. & G. 272. If a testator charges his land with debts (thus giving a power of sale by implication) but limits it for life or other estates, it is then out of the power of the devisees in trust to sell, but the court will if possible imply a power of sale of the equitable interest in the executors ; and the legal estate will have to be transferred by the heir or devisee, or advantage taken of the appropriate section of the Trustee Act, see Eidsforili v. Armstead, 2 Kay & J. 333 ; Wrigley v. Sylies, 21 Beav. 337 ; SaMii v. Heape, 27 Beav. 653. (m) Sham v. Borrer, 1 Keen, 559 ; Page v. Adam, 4 Beav. 269 ; Johnson v. Kennett, 3 My. & K. 624 ; Forbes v. Peacoclt, 1 Phill. 717. (o) 1 Phill. 722. This case was " commented on" by Lord GIVING BECEIPTS. 205- In Ms judgment his lordsliip said — "The estate being Rule in charged in the first instance with the payment of debts, Peamcic. the defendant was not bound, according to the general rule, to see to the application of the purchase-money. If, indeed, he had notice that the vendor intended to commit a breach of trust, and was selling the estate for that purpose, he would by purchasing under such cir- cumstances be concurring in the breach of trust, and thereby become responsible; Watkins v. Cheek {p); Balfour v. Welland (q) ; Eland v. Eland (r). But assuming that the facts relied upon in this case amounted to notice that the debts had been paid, yet as the executor had authority to sell not only for the pay- ment of debts, but also for the purpose of distribution among the residuary legatees, this would not afford any inference that the executor was committing a breach of trust in selling the estate, or that he was not performing what his duty required. The case then comes to this, — if authority is given to sell for the payment of debts and legacies, and the purchaser knows that the debts are paid, is he bound to see to the application of the purchase-money ? I apprehend not." It further appears from the authorities, that the snaiy. where trustee's receipt will be a sufficient discharge where the for parties under dia- ability. St. Leonards in Stroughill v. Anstey, 1 D. M. & G. 654 ; but the rule is established. All the cases will be found collected in the notes to Elliot v. Merryman, 1 Le. Ca. Eq. (^) 2 Sim. & S. 199. (!»!*?i*= • . '' stat. 23 & 21 are authorized, and, if so required by any person bene- '*''<='■ <=■ i*^- flcially interested, are bound, to use their best endea- vours to obtain a renewal on the accustomed and reasonable terms ; and they are authorized to do or concur in all the necessary acts for renewing. But this section is not to apply where, by the terms of the settlement or will, the tenant for life is entitled to enjoy the property without any obligation to renew the lease, or to contribute to the expense of renewing it. Sect. 9 empowers the trustees to pay the expenses incident to such renewal out of the trust funds in their possession ; or, if necessary, to raise it by mortgage ; and no mortgagee advancing the money will be bound to see that the amount is actually required for the foregoing purpose. It is stiU difficult to ascertain the mode in which funds should be raised for payment of renewal fines and expenses of renewal. The Court of Chancery, when a case of this kind comes before it, endeavours to collect from the terms of the instrument creating the trust, authority for raising the requu-ed amount by mortgage, and then apportioning the burden according to its own principles among the successive persons in- terested (a). (a) See Lewin on Trusts (5tli ed.), p. 299—307. Should the trustee be in doubt either as to his obligation to renew, or the particular fund out of which the expenses of renewing should l5 226 TRUST ATTACHES TO Trust wiu On a leading principle, which has several times heen attach to any ^ ^ . n t • » renewal or adverted, to, a trustee is not allowed to retain the new lease obtained by benefit 01 any renewal or new lease of the trust estate the trustee. , ., , , . ^ obtained by him. On any such new lease or renewal, a constructive trust arises for the cestuisque trust (a). Even where a trustee in possession, after the expira- tion of the lease (which was not a renewable one) ob- tained a new lease in his own name, with a declaration that it was not for the benefit of his cestuisque trust, the House of Lords held that the cestuisque trust were entitled to the benefit of the new lease, and this notwithstanding that the landlord had publicly adver- tised that the property included in the lease was to be reset (b). Where a trustee obtains a new lease, com- prising not only the lands in the original lease, but also additional lands, the trusts wOl attach to the former, but not to the latter (c). An assignee of the trustee, be paid, the best course will be to obtain the opinion and direc- tions of a judge of the Court of Chancery, under sect. 30 of Stat. 22 & 23 Vict. c. 35. Under this sect, (which is considered, hereafter) the directions of the court may be applied for at a slight expense, without instituting any suit. In Ireland, ques- tions of the kind referred to may be avoided by taking advantage of the Renewable Leasehold Conversion Act, 12 & 13 Vict. c. 105. Under this Act a grant in fee may be obtained, and fines, &e., commuted into a fixed annual rent. (a) Griffin v. Griffin, 1 Sch. & L. 352 ; Mnlhallen v. Marum, 3 D. & War. 317 ; all the cases are collected in the notes to Keeeh v. Sandford, 1 Le. Ca. Eq. (3rd ed.), 40. (J) MtzgMon v. Scanlan, 1 Dow. 261 j Sugd. H. of L. 555. (c) Aeheson v. Fair, 3 D. & War. 512. EENEWAL TAKEN BT TEUSTEE. 227 even for valuable consideration, who has notice, express or implied, of the trust, will of course be bound by it ; but the case is otherwise with purchasers for valuable consideration without notice (d). A trustee who has obtained a renewal may (unless the cestuisque trust have barred their right by neg- lect) be compelled to assign, free from incumbrances (except, perhaps, such under-leases as have been made bona fide, at fair rents) ; and he will also have to ac- count for the mesne rents and profits, and for any fines that may have been received by him while in possession. He win, however, have a claim for the expenses at* tendant on the renewal, and for the expenses of lasting improvements efiected by him on the property ; and also he will be entitled to an indemnity against the covenants by which he has bound himself (e). It has before been stated, that where the trusts are Beneficial fiilly performed, the person in whom the entire bene- titled to"con- ficial interest is vested is entitled to a conveyance or ^ assignment from his trustee (y ). On the refusal of the trustee to convey or assign to his cesfuique trust, or to such person as he inay direct, recourse may be had to a Court of Equity to compel him so to do (^f). Where (d ) Blemett v. MilleU, 7 Bro. P. C. 367 ; Ht/re v. Dolphin, 2 Ball & B. 290 ; Neslitt v. Tredennick, 1 Ball & B. 46. (e) See notes to Keeoh t. Scmdford, 1 Le, Ca. Eq. (/) Page 156, amte. (y) Jones T. Lemii, 1 Cox, 199. 228. CONVEYANCE BY TKUSTEE. Where title of cesiuique trust is not clearly made out. the refusal of the trustee proceeds from obstinacy or caprice, he will undoubtedly render himself liable to payment of all the costs occasioned by his miscon- duct (A). ■ Where, however, his refusal to convey arises from uncertainty as to the legal rights of the cestuique trust, the Court, in making a decree, will consider how far the circumstances justify his refusal, and will make an order as to costs accordingly (i). In a case where the trust was a very old one, and the title of the cestuisque trust complicated, Lord Eldon said that it would be matter for consideration whether the trustees would not have a right, where there had been so much devolution of title, to have the title examined in the Court, instead of being required to acquiesce in an opinion which was not clothed with the sanction of judicial authority (k). It would appear from other and more recent authorities, that the Court, in making the decree, will take into consideration not so much the question, whether the trustee was rightly advised as to the title of the cestuisque trust, as whether,' on the whole, the doubts suggested as to their title were fair and reasonable doubts (Z). Primd facie, the plaintiff wUl be entitled to a decree with (Ji) Per Sir J. Leach in Taylor y. Glanmlle, 3 Mad. 178; 3 ,Eus3. 589. See Chapter X., Costs of Trustees. (i) . Goodson v. Mlisson, 3 Kuss. 583, 589. (K) Per Lord Eldon, in Goodson v. ElUsson, ib. 593. (J) Angier v. Stannard, 3 My. & K. 566 ; Poole v. Pass, 1 Beav. 600 ; I^se v. Kingdom, 1 Coll. 184. CONVEYANCE BY TRUSTEE. 229 costs against the trustee (m) : but it is open to the latter to show that reasonable objections existed to the title of the cestuique trust; and that, acting under the advice of counsel, he had refused to convey with- out the protection of the Court (n). A trustee, although he may be bound to convey to several con- ■ veyances the cestuique trust, or as the latter may direct, will be cannot be required. under no obligation to execute several conveyances of portions of the trust estate ; he may require to be de- vested of the estate at once (o). When the estate is sold in several lots or divisions, and the trustee, avail- ing himself of his strict right, requires to be devested by a single conveyance, advantage may be taken of the Trustee Act Extension, under section 2 of which, orders of the Court may be obtained, vesting the lots in their respective purchasers {p). A trustee cannot be required to convey by any other conveyance words or descriptions than those contained in the con- ^ * veyance to him ; in this respect he resembles a mort- gagee {q). Nor can he be compelled to enter into any covenant, except the usual one that he has done no act to incumber. In framing a conveyance by a trustee, it was long "Grant." (m) Willis T. Hiscox, 3 My. & C. 202. (re) Angier v. Stannard ; Foole v. Pass ; Bevey v. Tltorn- ton, 9 Ha. 222 ; Meld v. Donouglimore, 1 Dr. & War. 234. (o) Per Lord Eldon, in Goodson v. MUsson, 3 Kuas. 594. (p) 15 & 16 Vict. e. 55. See pages 50, 56, ante. (2") Goodson v. Mlisson, 3 Euss. 594. 230 DEVISE BY TRUSTEE. usual to omit the word "grant," under the idea that a ■warranty was implied in that word. It is now enacted [stat. 8 & 9 Vict. c. 106, sect. 4] that the word "give" or "grant" is not to imply any covenant in law. A trustee of real estates may devise them hy his wiU; and a general devise may pass them, even al- though there be other property of the testator to which the devise may be applicable (r). But the general words may be restrained in cases where the testator has shown by other expressions that he only intended to devise that in which he had a beneficial interest (s). Effect of de- The practice of introducing into wills a devise of estates. estates held in trust, renders the case of Cooke v. Craw- ford {t) one of considerable importance to trustees of real estate. That case decides that the powers annexed to the trust cannot be exercised by devisees of the trust estate, unless there be words in the trust deed or will authorizing the exercise of such powers by the assigns of the original trustee, or by the person on whom the estate may happen to devolve. The prin- ciple of this decision has been recognized in some other cases (w), although the decision itself has been declared to be a most inconvenient on€ (x). It has (»•) SraylroTie v. Insldp, 8 Ves. 425. (s) Brayhrohe InsTdp, and other cases referred to in Lewin Tmsts, 5th ed. p. 184—187. (i) 13 Sim. 91 (Shadwell,V.-C.). (k) Mortimer v. IreloMd, 6 Ha. 196 ; Wilson v. Bennett, 5 De G. & S. 475 ; Ashton v. Wood, 3 Sm. & Gifi. 436. (») Macdonald v. Walher, 14Beav. 566. DEVISE BT TEUSTEE. 231 been suggested (in a treatise of the highest reputation), that if the doctrine above referred to be ultimately es- tablished, it may be necessary to introduce into every devise of trust estates an exception of whatever estates may happen to be vested in the trustee upon such trusts as a devisee cannot execute {y). Another question of practical importance to trustees whether a • 1 1 deTiseby 01 real estates, arising out of the same case is, whether trustee amounts to a a devise of the trust estate to persons who are not breach of trust. authorized to exercise the trusts, constitutes per se a breach of trust? In that case the V.-C. expressed a strong opinion to the eifect that the trustee ought not to have devised the estate : he ought to have permitted it to descend, for in so doing he would have acted in accordance with the devise to him (z) : The Court, if urged so to do, would probably fix the trustee's estate with the costs of getting the legal estate out of the de- visee under his will : There was no substantial distinc- tion between a conveyance and a devise ; and if one was unlawful, the other must be so also (a). A devise of trust estates by the trustee cannot, how- ever, be regarded as a breach of trust, where the de- visee is better able to carry out the trusts than the ( y) 1 Jarm. "Wills (2ndea.), 611. (z) The original devise in this case was to three trustees upon trust that they, or the survivor of them, or the heirs of such sur- vivor, should sell, give receipts, &c., 13 Sim. 91. (fl) See the judgment of "V.-C. "Wood in Hall v. May, 3 Kay & Joh. 585. 232 DEVISE BY TRUSTEE. heir-at-law would be — as in the case of the heir being a minor, or under some other disability (b). It would appear, therefore, that all the circumstances of the case must be taken into account, before any conclusion can safely be arrived at as to whether a devise of estates held by him is properly made by a trustee. (J) UttUf T. WoUtenlwlme, 7 Beav. 435 ; and see Wilson v. Bennett, 5 De G. & Sm. 479 ; Lewin on Trusts (5th ed.), 187 — 190, and cases there cited. ( 233 ) CHAPTER Vin. OF TRUSTEES FOE CHARITABLE OK RELIGIOUS PURPOSES. In carrying out a trust of a public, charitable, or reli- Euies pecu- ^ liar to trusts gious nature, the trustee will be mainly guided by. for public or ° ' J c J charitable those principles and rules affecting all trustees, of purposes. which a summary has been presented in the preceding chapters. There are, however, rules of law and statutes peculiar to trusts of this nature, to which it is necessary briefly to refer. The Court of Chancery is said to interfere with more readiness in public than in private trusts ; and it undoubtedly adopts wider rules of construction with regard to them. For example, where no object is expressed, although an intention to devote property to a charitable purpose appears, or where the object has been obscurely or insufficiently expressed, the trust will not faU, or revert to the donor's representatives : the Court will take upon itself to carry out the general intention through an application cy pres of the pro- perty, and will, if necessary, assume the office of executor and trustee (a). Again, as the persons to derive benefit from a cha- («) Lord Eldon in Moggeridge v. Tliaclimell, 7 Ves. 69; and in Mills V. Farmer, 1 Mer. 55, 94. 234 TRUSTS FOE CHAEITIES. ritable or public trust are, as individuals, unknown, and may be expected to form a succession of indefinite extent, tbe limits of duration imposed by law on a pri- vate trust, are not here imposed. Secret trusts In some instances the donor or testator is unwilling for cliarities. , ° to specify the charitable or religious objects for which he is interested ; and he hands over, or devises, or be- queaths property to a relative or friend, on the under- standing that it is to be applied in some particular way. Where property is so made over without any promise as to the mode of its application, and full liberty is expressly reserved to the donee as to its dispo- sition, the donee may deal with it exactly as he chooses; and he will not be regarded as a trustee merely be- cause a hope or expectation has been expressed by the donor or testator, as to the application of the property in a particular way (6). When secret Trusts for charitable and religious purposes are enforced. Usually created, and should always be created, by ex- press declaration (c). But a bequest may be made in terms which appear to confer a beneficial interest as well as the legal estate on the devisee, while at the same time there has been an understanding between the testator and the devisee that the latter should hold (J) Wheeler v. Smith, 6 Jur. N. S., and cases there cited. (e) A declaration of trust may be by parol ; Grant t. Grant, 34 Beav. 623, and cases there cited. " A declaration of trast ie not confined to any express form of words, but may be indicated by the character of the instrument." Lords Justices in Keie- ivioh V. Manning, 1 D. M. & G. 176 ; see also Richardson v. Micha/rdson, L. E. 3 Eq. 686, and cases there cited. SECEET CHARITABLE TRUSTS. 235 upon a secret trust for a charity. In a case of this kiad, the Court of Chancery wUl inquire, (1) whether the testator intended that the devisee should hold for a charitable purpose ; (2) whether the devisee induced the testator to suppose that it would be so applied. When these propositions can be established to the satisfaction of the Court, the devisee will be declared (the Statute of Frauds notwithstanding) to be a trus- tee (d ). " In such a case, the Court does not violate the spirit of the statute, but for the same end, namely, prevention of fraud, it engrafts the trust on the de- vise, by admitting evidence which the statute would in terms exclude, in order to prevent a party from applying property to a purpose foreign to that for which he undertook to hold it" (e). Lands, and property savouring of the realty, cannot Mortmain be legally conveyed on trusts for any charitable or religious object, unless the deed be attested by two witnesses, and enrolled in Chancery within six calendar months after the execution, pursuant to the stat. 9 G-eo. 2, c. 36 (/), and the other acts known as the Mortmain Acts ( ff). Where there is an accumulation of the fund, or a sum arising from sale of part of the id) Wallgrave t. Tehbs, 2 Kay & J. 313. 321 ; Jonet Badley, L. E. 3 Eq. 635. X<^ pJ-^W^ U^ J c/^ ^ifvfl (e) L. J. Turner in Russell v. Jackson, 10 Ha. 204. (/) The several acts are as follows : — 9 Geo. 2, c. 36 ; 9 Geo. i, c. 85 ; 24 Vict. c. 9 ; 25 & 26 Vict. C. 17 ; 26 & 27 Vict, c. 106 ; 27 & 28 Vict. >;. 13 ; 29 & 80 Vict. c. 57. See notes to Corbyn v. French, Tudor Le. Ca. Conv. 2nd ed. 456. (^) Not extending to Ireland. '236 CHARITABLE TETJSTS. property, which it appears to the trustees desirable to invest in land, it is necessary that the provisions of the Mortmain Acts should be borne in mind (A). Common law By the Common law the sovereign, as parens as to chari- . i i i ■ i « , . . ties. patria, has the general superintendence oi chanties ; and the Attorney-General is the officer of the Crown charged with this duty. An information, at the rela- tion of some person not necessarily interested in the charity, is the ancient mode of proceeding to correct the evils arising from the neglect or the mal-adminis- tration of charity property (i). An information may complain of fraudulent dealings with the estate, and suggest a scheme for its future management, and pray for the appointment of a new trustee, without being open to the objection of multifariousness (k). Parish trusts. Parish property, freehold or leasehold (but not copy- hold) was, by stat. 59 Geo. 3, c. 12, vested in the churchwardens and overseers, as a quasi corpora- tion (/). Omitting particular mention of statutes obsolete or expired {ni), it is sufficient to state that stat. 52 Geo. (Ji) Re Christ's Hospital, 12 W. E. 669. See Lewin on Trusts, 5th edit. 78, 407. (i) Corporation of Lndlom v. Greenlwuse, 1 Bligh, N. E. 17, .a leading case on chaiity trusts ; and see Lewin on Trusts, 5tli edit. 665. (70 Att.-Gen. v. Cradock, 3 My. & Cr. 85. (J) The decisions on this Act will be found in Lewin on Trusts, 5th edit. 400. (m) The Charity Act of 43 Eliz. c. 4, is practically obsolete ; and certain Acts of 58 Geo. 3, and 59 Geo. 3, for inquiring into charities, ceased to operate many years since. siE s. eomilly's act. 237 3, c. 101, with which the honoured name of Sir S. I'' Samuel ' ' Eomilly's Eonailly is associated, was the first Act which provided ■*■<='• an eflBcacious remedy for many of the abuses to which charitable trusts are especially liable. That Act pro- vided that in case of breach of trust, any two persons (not mere strangers, but having some interest in the subject-matter) might petition the Court of Chancery ; on which would foUow an inquiry into the grievance complained of, and relief according to the usage of the Court. Any application under this Act requires the sanction of the Attorney- General (n). The result of this legislation was the redress of many abuses, prin- cipally in case of the larger and more important public charities ; but in course of time it became apparent that the machinery of a suit in Chancery was hardly adapted to meet the consequences of neglect and pecu- lation in the numerous smaller charities, several of which are to be found in almost every town in the kingdom. In the year 1853, ParUament determined to form a charitable Trusts A.ct public department, to which should be committed the. 1853. special duty of supervising charities, and from which redress could, even in cases of trifling importance, be obtained, without any considerable sacrifice of time or money on the part of a complainant. Stat. 16 & 17 Yict. c. 137, empowered the Crown to appoint a per- manent Board of three Charity Commissioners for England and Wales, assisted by a secretary, inspectors,, («) See Morgan, Ch. St. 4tli edit. 98,.ii. 238 CHAEITABLE TKUSTS ACTS. Trustees can obtain the advice and direction of the Board. and other officers (o). These Commissioners have, under the powers of the Act, framed their own rules of procedure : and they have ample jurisdiction over all charitable endowments. The Board may examine and inquire into the con- dition and management of charities (sect. 9), and may require trustees to render accounts and statements in relation thereto (sect. 10). An inspector under the authority of the Board may require any trustee to attend and give information, and produce documents, but no trustee can be compelled to travel more than ten miles from home in obedience to the precept of the Board (sect. 12). Any person giving false evidence will be guilty of a misdemeanor (sect. 13). And any person refusing to render accounts or information, is to be deemed guilty of contempt of Court (sect. 14). The 16th sect, is of great importance to trustees. It provides that the Board shall receive appHcations for their advice, opinion, and directions, respecting the administration of any charity, or any dispute arising thereout. The advice, &c., will be given in writing, under seal ; and every trustee acting upon it (and not guilty of fraud or misrepresentation) wiU be deemed to have acted in accordance with the trust. Notice of legal proceedings must be given to the Board (sect. 17); and the Board may authorize legal proceedings (sect. 19) ; and certify cases to the At- torney-General (sect. 20). The Board may sanction (o) The office ia at N"o. 8, York Street, St. James's Square, S.W. CHAEITABLB TRUSTS ACTS. 239 leases, the working of mines, or repairs or improve- ments; and for these purposes may authorize the trustees to raise money hy mortgage (sect. 21) ; may remove schoolmasters of schools (sect. 22) ; may compromise claims on behalf of the charity (sect. 23) ; and under special circumstances may authorize sale or exchange of charity lands (sect. 24) ; or the redemption of rent- charges (sect. 25). This Act also enables the Master of the EoUs and the Vice-Chancellors sitting in Chambers, to make orders as to appointing or removing trustees of chari- ties where the gross income of the charity exceeds 301., in the same way as before the Act they could have done in a regular suit or upon petition ( p). Where the income does not exceed 301. the jurisdiction is conferred (by sect. 29) on the District Courts of Bankruptcy and the County Courts ( q). Consolidated Order, XLI. (2), directs that any ap- Practice plication to a Judge in Chambers under sect. 28, shall "°**'^^-2^- be made by summons [form Sched., K. No. 1], No order under this Act by the Judge at Chambers shall be subject to appeal, where the gross income of the (p) Sect. 28, explained in He Davenport's CJiarity, i D. M. & G. 840. (^) Since extended to cases where the income does not ex- ceed 501. by 23 & 24 Vict. c. 136, s. H. A number of trusts, in- cluding registered places of religious worship, are hj sect. 62 exempted from the operation of this Act ; but sect. 63 enables the exempted trusts to participate in the benefits of the Act, if it be desired by the trustees. GHAfttTABLE TRUSTS ACTS. charity shall not exceed lOOZ. unless the judge who made the order shall certify that an appeal ought to be permitted (r). The " Charitable Trusts Amendment Act," 1855 (18 & 19 Vict. c. 124), considerably extended the powers of the Charity Commissioners, and enabled them to require trustees and others, making any statement, to verify the same by oath, and to require trustees and others to attend before them or their inspector, to answer questions ; but no trustee is obliged to travel more than ten miles from home in obedience to the requisition of the Commissioners (sects. 6, 7). In case of non-compliance, persons may be adjudged guilfy of contempt of Court (sect. 9). Trustees of charities are bound to render to the Commissioners an annual ac- count of the endowments of the charity, and of the application of those endowments (sect. 44). This Act contains many other provisions as to the administra- tion of charities and charity fimds (s). A further Act, in 1860 {t) [to be read together with the two preceding Acts] recited that " increased and inexpensive facilities for the administration of endowed charities" were stiU required. It enlarged the powers of the Commissioners in some respects, and, in par- ticular, it gave them the same powers as to the ap- (?•) See Morgan Ch. St. 4th edit. 598—599. (s) All these acts will be found in extenso, in the volume edited by Messrs. Cooke & Harwood. («) 23 & 24 Vict. c. 136. CHARITABLE TRUSTS ACTS. 241 pointment of new trustees of charities, as are exer- cised by a Judge at Chambers, but the application must be made by a majority of the trustees (m). It also gave the district Courts of Bankruptcy, and the County Courts, jurisdiction over charities of which the gross annual income should not exceed SOZ. (x) This Act further enables a majority of two-thirds of the trustees of any charity assembled at a meeting of their body duly constituted, and having power to de- termine on any sale, exchange, partition, mortgage, lease, or other disposition of any property of the charity, to pass the legal estate, for giving effect to such disposition (y). In 1862 a short Act (z) estabhshed the jurisdiction of the Charity Commissioners, even where the charity had formed the subject of a suit in Chancery. It has been stated that the Board of Charity Com- Advice and direction to missioners wiU receive applications by trustees for trasteesof charities. their opmion, advice and direction, respecting the charity ; and that the opinion and directions of the Board given in writing under seal, will indemnify trustees against consequences, provided there has been no wilful misstatement or concealment in obtaining the direction (a). AppHcations to the Board must be made (m) Sect. 2. Query, whether an order of the commissioners is liable to stamp duty ? (k) Sect. 11. ly) Sect. 16. (z) 25 & 26 Vict. c. 112. (a) Sect. 16. The authority of the commissioners extends to U. M 242 CHAItlTABLE TETJSTS ACTS. Roman Catholic charities. Management and fulfil- ment of Charity trusts. in writing by a trustee or some person interested in the matter, and must be on notice to all trustees or ad- ministrators of the charity, and to such other persons as the Board shall consider entitled to notice (5). Eoman Catholic charities in England and Wales were for some years, by temporary Acts, excluded from the operation of the Charitable Trusts Acts (c) ; but in 1859 the exemption came to an end by ef- fluxion of time. In 1860 an Act was passed (' questions of considerable difficulty have arisen, as well ^^I'^^^l from the want of evidence as to the original destination 5^;^"°°^?' of the endowment, as from the gradual change which is apt to take place in doctrine and discipHne where no written standards have been established. It is well known that many congregations of dissenters were formed iu the 17th century and early in the 18th cen- tury, originally holding opinions directly opposite to those entertained by their successors in later times. Where there is uncertainty as to the kind of doctrine intended to be taught by the founders of the chapel, the Court of Chancery will, in the absence of docu- mentary evidence, inquire what has been the usage of the congregation : and, in order to put an end to much threatened litigation, an Act was passed in 1844 by which, in the absence of clear evidence, the usage of twenty-five years is on this point rendered conclu- sive (§'). With regard to Roman CathoHc charities in England and Wales, the usage of twenty years is, in the absence of documentary evidence, rendered con- clusive by a more recent Act (r). If the original purpose be clear, it is not competent Change of opinions. for the trustees or the congregation to say, " We have altered our opinions, and the chapel in future shall be (_p) These are exempted from church rates, poor rates, etc., by 3 & 4 WiU. 4, c. 30. ((?) 7 & 8 Vict. c. 45, s. 2 ; see Att.-Gen. v. Sutton, Drury, 530. (»■) 23 & 24 Vict. c. 134, s. 5. 248 CHAEITABLE TRUSTS. used by persons of our present persuasion" (s). Where a trustee of a chapel changes his religious views, and entertains opinions widely differing from those of the congregation, and does not retire voluntarily, he may be removed from the trust ; and if costs are occasioned by his obstinacy and misconduct, it is most likely that the Court of Chancery will order him to pay them. But the Charity Commissioners cannot by their order remove any trustee from his office on the ground only of his religious belief (<). Where a chapel was many years ago built by subscription, and it was clearly shown that about the same time that it was buUt a written declaration of trust was made, the Court of Chancery decided that the wish of the contributors must be assumed to have been thereby expressed, and the Court, therefore, prevented the now existing trus- tees from acting otherwise than in accordance with the terms of that document (u). A power of making by-laws or regulations will not (s) Att.-Gen. v. Murdoch, 7 Ha. 445 ; Att.-Gen. t. Mwnro, 2 De G. & Sm. 122 ; Att.-Gen. t. Aust, 13 L. T. N. S. 235 ; Nemsome y. Flowers, 30 Bear. 461. («) Charitable Trusts Act, 23 & 24 "Vict. c. 136, s. 4. (m) Att.- Gen. v. Clapluim, 4 D. M. & G. 626. This case. Doe d. Williams v. Lloyd, 1 M. & Gr. 671, and Dr. Warren's case, reported in Ch'indrod's Compendium, are the principal cases relating to Wesleyan trusts, which trusts, however, in all new, and in most of the older instances, are defined by a trust deed which refers to and incorporates the terms of a standard or " model " deed. The latter is inrolled in Chancery, and it is express as to the paramount authority over all such trusts of the " Conference," or governing body. CHAPELS AND SCHOOLS. 249 justify trustees in making any regulations of a kind inconsistent with the terms of their trust. In short, the original purpose must in every case be carried out, unless varied by competent legal authority. The Court of Chancery itself has no power to divert the applica- tion of the property — thus where a school was estab- lished for teaching on the principles of the Church, and it became highly expedient to admit Dissenters, the Court directed an application to Parliament for the purpose (x). The trustees of a chapel have, in many instances, EcmoTOi oj ^ ' •> miniater. the legal right summarily to eject their minister (y) ; among the Independents or Congregationalists, this may be said to be the rule ; but where there is a ques- tion which must be judicially decided, the Court of Chancery will interpose, and, on the ground that it is of the first importance that the service shall be per- formed, the Court will allow the minister to officiate, and to receive his usual salary, wnfil the question be- tween him and the trustees can be properly decided (z). Where trustees have authority to remove the minister " in their discretion," that discretion must be exercised (a) AU.- Gen. v. Market BosmortJi School, 35 Beav. 305 ; a private act was accordingly obtained in 1866. (y) Perry v. SMpway, 1 GifE. 10 ; and see Brown v. Baw- 8on, 12 Ad. & Ell. 624. {%) Foley v. Wontner, 2 Jac. & W. 247. In the case of Bauffars v. Mivaz, 28 Beav. 233 ; 29 L. J. Ch. 685, a minister who had been dismissed without suiBcient cause, by trustees who" had no absolute right of dismissal, was reinstated by the Court. M 5 CHABITABLE TRUSTS. in accordance with the trust, and the Court will see that it is properly exercised (a). Where the trust deed provides that notice of meet- ing shall be given to the trustees, of course a meeting held without notice given in the manner prescribed, wiU be illegal. But the House of Lords decided that where a Private Act defined a trustee to be one " act- ing by virtue of this Act," the omission to give notice to a trustee who had not acted as such, did not invali- date the resolutions of the meeting {V). It is a firmly established rule that a meeting, which has been duly convened by notice, may be adjourned to a subsequent day without further notice being given (c). By an Act passed in 1850 (13 & 14 Vict. c. 28), relating to trustees of religious congregations or so- cieties, it was enacted, that property held by trustees for charitable, religious and educational purposes, as therein specified, shall vest in their successors in office ; and that the evidence of the choice and appointment of new trustees may be preserved by means of a deed under the hand and seal of the chairman of the meet- ing at which new trustees shall be appointed, and exe- cuted in the presence of the meeting. This Act also provides for the commutation of fines and heriots on death or alienation, where the property is held by copyhold or customary tenure, for a payment to be (a) WMU V. ChOde, 20 L. J. 113. (J) Kerr v. WilUe, 6 Jur. N. S. 383. (c) Scadding v. Lorant, 3 H. of L. Cas. 418; Keii- v. Wilkie, supra. CHAEITT-TRtJSTEES. 251 made every forty years (d). The schedule to this Act contains a brief form of appointment of new trustees. Where neither Peto's Act, nor the Charitable Trusts Appointment . . and removal Act apply, it may become necessary to have recourse of trustees of charities. to the Court of Chancery for the appointment of new- trustees. Petitions for this purpose should be entitled in the matter of 52 Geo. 3, c. 101, as well as in the matter of the Trustee Act, 1850; and the Attorney- General's fiat should be obtained (e). In selecting trustees of a charity, the question is whether the per- sons proposed are proper to be appointed, not whether they are the most proper (_/). Property was, in the 16th century, given in trust to appoint a schoolmaster to instruct in " godly learning," and for other pur- (d) Sect. 2. This Act (which extends to Ireland) is little used for the foUowiiig reasons : It clearly does not apply to a large class of cases, where the power of appointing exists, but is from absence or other cause diflBcult of exercise; and it is doubt- ful whether it applies ia some other cases ; and as the expense of a deed is necessary, it is usually considered more advisable to have the deed in customary form. Instead of making use of this Act, it is found to be more convenient and less expensive in the case of a place of religious worship or other trust exempted by sect. 62 of the Charitable Trusts Act, for the majority of a body of trustees to apply under the permissive clause of that Act (sect. 63) to the Board, for the purpose of obtaining an ap- pointment of new trustees under the 2nd section of the Act of 1860, as above stated. («) In, re Bolle's Chm-ity, 3 De G. M. & G. 153 ; In, re Bierton CJuwity, 10 Ha. App. 28, 37. (/) In re Lancaster Cliarities, 7 Jur. N. S. 596 ; 9 W. E. 192. CHAEITT-TKUSTEES. poses ; and the question came before Lord Romilly, M. R., whether Dissenters were eligible as trustees, and he decided it in the aflarmative ; but the Lords Jus- tices held otherwise, on the ground that the instruction to be given was to be that in accordance with the doc- trines of the Established Church; and this decision was affirmed on appeal to the House of Lords (^). Although a trustee of a religious edifice may be inca- pacitated for continuance in office by a total change in his religious beliefs, it does not follow that his merely ceasing to sympathize with the particular sect which uses the edifice will justify his removal (A). Where laud had been given for the repairs of a church, and the rent had been applied by the churchwardens, a county court judge, on an application to him, ap- pointed the surveyor and parish overseers to act as trustees together with the churchwardens. On appeal by the rector, he and the churchwardens only were appointed trustees {i). Where the Court had arrived at the determination that a parish school was a Church of England school, it was held further that the trustees ought to be members of the Church, but that the school was open to children of all denominations (k). And in the same ig) Baker t. Lee, In re Ilminster Selwol, 8 H. of L. Cas. 495 ; 7 Jur. N. S. 1. As to the disqualification of persons who are not " inhabitants," to be trustees, see 32 Eeav. 596 ; 33 Beav. 621. (K) Att.-Gen. v. Clapliam, i De G. M. & G. see p. 632. (i) In re Donington, 6 Jur. N. S. 290 ; 8 W. R. 301. (A) AU.-Gen. v. Clifton, 9 Jur. N. S. 939 ; 32 Beav. 596. GEAMMAE SCHOOLS. 253 case it was held that although a person had heen im- properly appointed a trustee, yet it did not follow that the Court would remove him. Numerous schools throughout the kingdom were Grammar founded and endowed in former times, for the express purpose of teaching "grammar" [«. e. Latin and Greek]. It has been held by several judges of the highest emi- nence, that the Court may extend the application of the charity fund to the teaching of other useful branches of education. And power to extend it has been expressly given by stat. 3 & 4 Vict. c. 77 (Grammar Schools' Act) ; but other branches must not be taught to the utter exclusion of Latin and Greek (Z). Grammar schools are exempted from the operation of sect. 14 of Kemovai of the Charitable Trusts Act I860, which enables trustees masters. to remove the masters and mistresses of schools. The same Act (sect. 21) provides, that all applications to the Court of Chancery under the Act may be brought for- ward on petition only, such petition to be presented, heard, and determined as if under RomiUy's Act. Trustees of charitable and religious foundations are unanimity not bound to unanimity in their decisions, as are ordi- oj clarity nary trustees. The decision of the majority of them wUl usually bind the minority (m) ; but the act of the Other cases in which the religious instruction to be given in schools has been considered, are Att.-Gen. v. Sherborne, 15 Beav. 256 ; Chelmsford School Case, 1 Kay & J. 543 ; Att.- Gen. v. Haherdaihers' Company, 19 Beav. 385; Att.-Gen. t. Calvert, 23 Beav. 2i8 ; In re Stafford Charities, 25 Beav. 28 ; 27 L. J. Ch. 381. (I) Berhha/mpstead Sclwol Case, L. R. 1 Eq. 102. (to) Perry -7. Shipway, 1 Gi£E. 1 ; Att.-Gen. v. Cuming, 2 254 CHARITABLE TEtTSTS. Application of accretion of ciiarity property. majority does not bind the minority in matters beyond the sphere of their duty (m). The Court, in appointing a numerous body of trustees, is willing to insert a proviso that a certain proportion of them shall form a quorum. It was lately enacted, that a majority of two-thirds of the trustees of any charity, assembled at a meetuig duly formed, and having power to determine on any sale, exchange, partition, mortgage, lease, or other disposition of any property of the charity, are empowered to pass the legal estate for giving effect to such disposition (o). In numberless instances the charity property has in- creased in value so much as to be more than sufficient for the objects defined by the founder of the trust. The rule of law in such cases is that the accretion is prima facie to be applied and apportioned pro rata among the objects of the founder's bounty, but subject to the discretion of the Court (p). It is impossible to specify to what extent or under what circumstances, the Court Y. & C. Ch. 139. In some other points, also, the strictness of law has been relaxed in their favour. Where they are directed to do a certain thing within a limited time, a delay of more than the time specified will not inyalidate their act. Again, where trustees are directed to fill up vacancies, when reduced to a cer- tain number, they are allowed to fill them up even when they are reduced to a much smaller number. In fact, in trusts of a public nature, some latitude of construction is allowed ; for if strictness were exercised it is probable that trusts of this kind would be abandoned to their fate. (n) Ward v. Hipmell, 3 Giff. 647. (o) 23 & 24 Vict. c. 136, s. 16. ip) Lord Kingsdowu in Att.-Oen. '/. Dean, ^'c, of IVindsor, 8 H. of L. Cas. 452. ADMINISTEATION OF FUNDS. 255 will exercise its discretion of varying the proportions : but supposing that some of the objects have ceased to exist, or supposing that the founder's direction with regard to other objects, if carried out in these days, so far froni being beneficial, would prove detrimental, — in either of such cases a good reason woidd exist for exer- cising the discretion, and applying the accretion for the benefit of one class of objects, and withholding it from another (q). This is not, however, a discretion which trustees can be advised to take on themselves. Their proper course, where the income of the charity is found to be excessive, is to obtain the directions of the Charity Commissioners ; and, if necessary, those of the Court of Chancery. Trustees for charitable purposes have, generally sales and speaking, no power to sell the property of the charity, charity or to grant leases for long terms of years (r) ; and they cannot be advised to attempt any sale, or to grant any lease of unusual duration, without the sanction of the Charity Commissioners, who, under the recent Acts, have fall powers as regards the sale, exchange, or mortgage of charity estates («). The funds to arise from the sale, &c. may be invested or applied in such manner as the Commissioners may think beneficial, and as is not inconsistent with the foundation (t). It will (2) Att.-Gen. v. Marchant, L. K. 3 Eq. 424, see 430. (r) As to the diiration of leases to be granted by charity trastees, see Att.-Gen. t. Hall, 16 Bear. 388 ; In re Cross, 27 Beav. 592. (s) 16 & 17 Vict. c. 137, s. 24 ; 18 & 19 Vict. c. 124, s. 32. (*) 23 & 24 Vict. c. 136, s. 15. 256 LEASES OF CHAKITT-LANDS. be prudent, therefore, for the trustees to obtain the sanction of the Commissioners before entering into any contract for sale. In granting leases of charity lands Trustee not the trustees should not accept one of their own number Ui be lessee. as lessee, if any responsible stranger can be procured as tenant (m) ; nor should a lease be made to any near relation or connexion of a trustee, if it can be avoided. A charity trustee must not place himself in a position where his duty and his interest wiU conflict. Where a charity scheme provided that no trustee should oc- cupy any portion of the charity property, and one of the trustees took a lease of a portion of it (by tender), it was held by the Court that he was bound to give up either the lease or the trusteeship (x). Care should also be taken in granting a lease that an adequate con- sideration for the lease in the way of rent and fine, or of rent only, be obtained, otherwise the transaction is liable to be set aside by the Court, and the loss may be directed to be borne by the trustees, or the tenant, ac- cording to circumstances (3/). Under the late Act, the Commissioners are empowered to authorize the grant by charity trustees of building, repairing, improving, mining or other leases (z), and the trustees are restricted from granting without the sanction of the Board " any lease in reversion after more than three years of any (tt) Aft.- Gen. v. Clarendon, 17 Ves. 491, see 500. (as) Foord t. Baler, 27 Beav. 193. {y) See Ferraby v. Hobson, 2 Phill. 255, and see Duke, pp. 43, 46, 67, 116. («) 16 & 17 Vict. c. 137, ss. .21, 26. OFFICIAL TKtrSTEBS OF CHAEITIES. 257 existing term, or for any term of life, or in considera- tion wholly or in part of any fine, or for any term of years exceeding twenty-one years (a). The Secretary of the Board of Charity Commis- °^l^l. „, sioners, together with such persons as the Lord Chan- "iiarities. ceUor may, from time to time, associate with him, are styled "official trustees,'' and in them any charity es- tates or funds may be vested. They have an account open in the Bank of England, to which account charity funds may be paid in, or trustees may transfer Govern- ment stock into their names (6). The "official trustees" are required to lay an abstract of their accounts before Parliament annually (c). If a trustee of a charity should find in his possession a fund which he does not know how to apply, his best course will be to lodge it to the credit of the official trustees of the Board ; or if the amount be smaU he may lodge it in the county court. In concluding this part of the subject, it may be re- Exceptions marked that the Board of Charity Commissioners has we Trusts no j urisdiction whatever over the universities or their {a) 18 & 19 Vict. c. 124, s. 29. The principle on which leases of charity lands should be granted has lately been con- sidered by the Court of Chancery Appeal, in a case in which leases at low rents in consideration of fines had long been granted by custom, and had also been sanctioned by a scheme settled by the award and decree of the Court. It appears that the Court will only approve of leases being made at a full rent ; Att.-Gen. v. St. John's Hospital, L. R. 1 Ch. App. 92. (*) 18 & 19 Vict. c. 124, ss. 15, 17, 20. (c) 23 & 24 Vict. c. 136, s. 18. 258 CHAEITABLE TRUSTS. Irish acts relating to charity trusts. colleges, or over registered places for religious worship or over the various charitable and religious institutions, and societies, which are maintained by voluntary con- tributions, and are not endowed (d). But the exempted charities and institutions may, by petition, signed by the majority of the trustees, apply to the Board to have the benefit of the Act generally, or of any of its pro- visions (sect. 63). Roman Catholic charities were also exempted, but in 1859 this exemption ceased, and they are now within the operation of the Charitable Trust Acts. Charitable trusts in Ireland were, to a certain ex- tent, placed under the jurisdiction of a "Board of Charitable Donations and Bequests " (e), by stat. 7 & 8 Vict. c. 97. A recent Act, 30 & 31 Vict. c. 54, enlarges the powers of the Board, as follows : — The Board may now receive and consider applications by trustees of charities, for advice and directions which will be given in writing ; and every trustee acting thereon (without having been guilty of any fraud or concealment) shall be deemed to have acted properly, and shall be indemnified. The Board may sanction the compromise of claims ; and may, in certain cases, join the trustee in a petition ((?) 16 & 17 Vict. u. 137, s. 62 i 18 & 19 Vict. c. 124, s. 47 ; see Governors for BsUcf, ^c. v. Sictton, 27 Beav. 651. (c) Consisting of judges, ex-judges, and other commissioners (unpaid) appointed by the crown, assisted by two joint-secretaries, one of whom is especially concerned with Roman Catholic charities. The office is at 2, Kildare Place, Dublin. RECENT ACTS. 259 to the Court of Chanceiy, proposing a scheme for administering the trust. Trustees may lodge trust money, or stock held for charitable purposes, with the Board ; and may also deposit deeds and documents. The consent of the Board is necessary before trustees can make a change of investment of charity funds. The Board may sanction leases, sales, and exchanges of charity lands. There is no power, however, (as under the English Acts) to compel trustees to furnish accounts, or to give information to the Board. ( 260 ) CHAPTER IX. JUDICIAL ADVICE TO TKUSTEES. Advice of an Tkustees are now enabled, witliout the delay and equity judge « . . ^ , . may be Ob- expense of a suit in Chancery, to obtain the directions of the Court, on points of doubt and difficulty in rela- tion to the investment or management of trust pro- perty. Sect. 30 of 22 & 23 Vict. c. 35 (Lord St. Leonards' Act) enables any trustee (a), or executor to apply by petition, or by summons upon a written statement, to any judge of the Court of Chancery, for the opinion, advice, or direction, of such judge on any question respecting the management or administration of the trust property or the assets of any testator — on notice, however, to all persons interested. And the trustee, or executor, acting upon such opinion, advice or di- rection, shall be deemed, so far as regards his own responsibility, to have discharged his duty, provided (a) The enactment is retrospective in its operation (7m re Simpson, 1 J. & Hem. 89). Althongh in its terms general, it would not be regular for a trustee of a charity to apply under this Act, inasmuch as the Board of Charity Commissioners (in Ireland the Board of Charitable Donations) can giye directions to the trustee — see Chapter VIII. JUDICIAL ADVICE TO TEtTSTEES. 261 that there have been, no fraud or wilful concealment or misrepresentation on the part of the trustee. The costs of the application are in the discretion of the iudge. By a further enactment (23 & 24 Vict. c. 38, s. 9), counsers signature re- every such petition or statement shall be signed by quired, counsel ; and the judge may require the attendance of counsel, if he deems it necessary, either in Court or Chambers. The practice under this Act is regulated bv an Practice under s. 30. Order of Court of 20th March, 1860(6), which di- rects that all petitions, statements, &c., shall be in- tituled " In the matter of the said Act and In the matter of the particular trust, will, &c." and shall state the facts concisely and in paragraphs ; and shall, except as to title, be in the form of the general sum- mons in Schedule K, No. I., Cons. Ord. When the summons is sealed, the statement must be left at the Judge's Chambers. Seven clear days' notice must be given, unless the person served consent to a shorter time. The "Judicial Advice," or "Judicial Direc- tion," is to be entered of record (being so termed) with the other orders of the Court. As the Court proceeds on an ex parte statement unsupported by evidence, it is necessary that the strictest accuracy should be observed in drawing it up, otherwise the trustee may not be indemnified by the direction of the judge given upon it. The state- (i) Morgan, Chan. Stats. &c. 4th edit. p. 618. 262 JUDICIAL ADVICE TO TRUSTEES. ment should embody all the information material for enabling the Court to give its opinion, without refer- ring to affidavits (c). But this procedure is not adapted for obtaining a decision upon an intricate case, or for obtaining the sanction of the Court to a large expenditure in improving a settled estate ; or for a case involving points of law requiring argument, or involving disputed facts as to which evidence would be necessary (rf ). The Act is only intended to afford to trustees the benefit of an authoritative direction as to points which may arise in the management of the property "where there is no suit and no conten- tion" (e). And a trustee can apply alone, if his co- trustee declines to join him in the application (/). Service of It is not necessary that the statement should be parties in- terested, served on all persons interested in the trust fund ; but if the trustee is really doubtful, as to who should be served, it may be allowable for him to apply before- hand, in Chambers, for the directions of the judge, as to the proper parties to be served (/). It is not, however, the practice to make a formal application to (o) Re Muggeridge, 1 Joh. 625 ; 6 Jur. N. S. 192. For other decisions on this Act, see Morgan, Chan. Stats. Hh edit. ass. {d) Re Barrington, 1 John. & Hem. 142 ; 8 W. R. 577 ; Re Hooper, 29 Beav. 656 ; Re Evans, 30 Bear. 232 ; Be Dennis, 5 Jur. N. S. 1388 ; Re Pleasant's Asylum, M. E. Ire- land, 1867. («) Re Lorenz, 7 Jur. N. S. 402 ; Re Box, 1 Hem. & M. 552 ; Re Dennis, supra. (/) Re Muggeridge, svpra. JUDICIAL ADVICE TO TRUSTEES. 263 the Court on petition for directions on this point. The proper course is for the petitioner to serve such persons as he thinks proper, and to state at the end of his petition whom he has served ( g). The procedure under this Act may sometimes be utility ot the adapted for the case of all parties consenting to accept the opinion of the judge on a doubtful point, where the facts are ascertained, instead of instituting a suit (h). Its chief utility will, however, be found in guarding the trustee from the danger to which an un- authorized investment or sale, or a questionable pay- ment may subject him. It will enable him to take an absolutely safe course at once, instead of relying in a doubtful matter on opiuions which will not (if erro- neous) be of any protection to him, and then of obtain- ing, as is too commonly the case, the partial and un- satisfactory indemnity which the tenant for life of the fund is usually able to offer. (?) Re Green, 6 Jur. N. S. 479, 530. (A) Be Mocltett, 1 Joh. 628 ; 6 Jur. N. S. 142 ; Re Spiller (Lord Justices), 6 Jur. N. S. 386 ; Morgan, Chan. Stats. 4th edit. 283. ( 264 ) CHAPTEE X. COSTS AND EXPENSES OF TEUSTEES. Costs andex- ALTHOUGH no provision be made in tlie deed or will penses al- n i • • ^ lowed out of creating the trust for the costs and expenses incident the fund. to its fulfilment, they may be charged by the trustee against the fund, and will be allowed on a settlement of his accounts. Every trustee is authorized, by the nature of his office, to reimburse himself all such charges and expenses (a). This rule is of course sub- ject to the qualification, that the costs and expenses in- curred by the trustee, and charged against the fund, must be such as are necessarily and bond fide incurred for the benefit of the trust estate. A trustee will not be entitled to charge the fund with expenses unwisely and fruitlessly incurred; as for instance, the costs of preparing a useless and in- operative deed (6). (a) Per Lord Bldon, in Worrall v. Sarfm-d, 8 Ves. 8. This principle is fully stated by Lord Cottenham in Att.-Gen. t. Mayor of Norwich, 2 My. & C. 424:. (J) Smith v. Dresser, L. E. 1 Eq. 651 ; and see Att.-Gen.Y. Earl Mansfield, 2 Kuss. 501, 518 ; Msey v. Cox, 26 Beav. 95 ; but where a trust deed for benefit of creditors contained a first trust for payment of the costs of the deed, such costs were allowed to the trustees, although the solicitor had been employed not by them but by the debtor ; Be Sadd, 34 Bear. 650. TRUSTEES REIMBUESEMENT, 265 The law as to reimbursement of trustees was de- sect. 31 of Lord St. Leo- Glared, rather than altered, by sect. 31 of stat. 22 & Dards'Act. 23 Vict. c. 35, which enacts that every instrument creating a trust either expressly or by implication, shall be deemed to contain a clause authorizing the trustee to reimburse himself, or pay or discharge out of the trust premises, all expenses incurred in or about the execution of the trusts. The expense attending a new appointment of costs conse- ^^ quentona trustees is often paid by the tenant for life, to avoid change of '. . trustees. the inconvenience of selling or realizing a portionof the capital. Where the latter consists of real estate, or a mortgage, it would be difficult to arrange it otherwise. Still, the rule of the Court (which it is allowable to follow out of Court) is to charge such costs on the capital of the trust fund, and not on the income (c). A trustee, when called upon to transfer the trust fund to a newly-appointed trustee, is not entitled to charge it with the expense of making an attested copy of the settlement, or to insist on having a duplicate copy of the new appointment handed over to him ; nor can he insist on charging the cost of obtaining counsel's opinion as to his right to such documents (d). Such costs would be considered as incurred for the satisfac- tion of the trustee himself, from an excess of caution on his part ; and cannot properly be regarded as ex- (c) Carter v. Sebright, 26 Beav. 376 ; Lewin on Trusts, 5tli edit. 475. ((?) WaHer y. Anderson, 11 Ha. 301 ; 1 Eq. Kep. 266. U. N 266 COSTS OF TRUSTEES. Costs occa- sioned by refusal to convey. Disclaiming trustee. Costa can 'be claimed against the trustee alone ; penses incurred in the admiaistration of the trust estate (e). Where the title of the cestuique trust is clearly made out, a trustee refusing, without sufficient excuse, to convey or make over the trust property, incurs the risk of being ordered to pay the costs of a suit occa- sioned by his refusal {f). A person named as trustee, but who has never ac- cepted the trust and is unwilling to act, if made de- fendant in a suit, may appear in Court and disclaim ; -or he may disclaim by his answer— in which case the bill win be dismissed as against him with costs (as between party and party) ; and if his costs are unne- cessarily heavy the Court may disallow part, by giving him only the costs of a simple disclaimer (^r). As the trustee is entitled to retain the solicitor, and to charge the fund with the expense of so doing, it follows that the contract is between them alone, with- out reference to the parties beneficially interested in the fund. The trustee is, like any other client, per- (e) If the trustee be a solicitor lie will, on taxation, be allowed costs out of pocket only, and not the customary professional charges. Gomley v. WooA, 3 Jo. & Lat. 678 ; Yorli v. Brown, 1 Coll. 260 : the cases are collected in Morgan on Costs, 279. (/) Willis V. Hiscox, 4 M. & Cr. 197 ; Penfold^. Boucher, i Ha. 271 ; MolforcL r. Phipps, 4 BeaT. 475 ; Sinith t. Bolden, 33 Beav. 262 ; Palairct v. Carem, 9 Jur. N. S. 426. 0) See p. 18, ante ; Sicltson v. Fitzgerald, 1 Moll. 14 ; and see p. 146 ; Norway v. JVorwatj, 2 My. & K. 278 ; Mohun v. MoJiun, 1 Sw. 201 ; see also lie Tryon, 7 Bear. 496 ; Benbom T. Bavies, 11 Bear. 369. trustees' liability foe costs. 267 sonally liable to his solicitor ; and the latter, acting on the retainer of the trustee, has no claim whatever against the fund (A). Payment to his solicitor will be, therefore, upon the sole responsibility of the trustee. "By the rule of this Court," said Lord St. Leonards (i), and may be •' ^ moderated " if the trustee pay the solicitor's biU of costs without after pay- '^ •' _ ment. taxation, and then a demand is made by him against the trust estate for the amount, the cestuique trust has a right to have the bill referred, not for taxation, but to be moderated, and upon that reference the Master will revise the items in a way similar to taxation ; and if, upon the reference, the charges appear not to be proper charges, they will be disallowed to the trustee, and he will be left to get back from the solicitor the sums which he has so paid to him^ in the best way he can : That was decided in Johnson v. Telford (k) ; and although costs have been paid by the trustee, and he has been allowed them in account by the cestuique use who has released, yet the cestuique trust will be allowed to make use of the name of the trustee to have the costs taxed, if the trustee can still tax them, giving him a proper indemnity" (l). Under the Solicitors' Act (6 & 7 Vict. c. 73, s. 39) cestuisque trust may, at the discretion of the Court, obtain an order to tax the (K) Per Lord Eldon, in Wm-rall t. Harford, quoted 4 D. & War. 109. (i) In Zangford T. Mahony, 4 D. & War. 81, 110. (k) 3Euss. 4T7. (I) Hazard v. Lame, 3 Mer. 285. n2 268 COSTS OF TRUSTEES. costs of the trustee's solicitor (m). Where an agent or solicitor has, by mixing himself up in a breach of trust, or acting as though he were himself trustee, become a trustee by construction of law, in that case the cesfuique trust may acquire the right of proceed- ing directly against him (n). Costa of pro- By section 51 of the Trustee Act (o), it is provided underTrustee that the Lord Chancellor (in lunacy), or the Court, may order the costs and expenses attending petitions, orders, and other proceedings under the Act, to be borne by the lands, or personal estate, or the rents or produce of them, as the Court may direct. In ordinary cases, therefore, the costs of proceedings will be paid out of the fund forming the subject of a vesting order under the Act ; and where the property consists of land, the costs of the petition, if not paid, will be declared a charge, and will carry interest at 4 per cent, until payment (p). Costa of vest- Where the death of a vendor (after a contract for ing order, &c. pi i ■ ^ Trustee Act. sale has been entered mto, and before the completion oi the sale), leaving an heir at law under disability, and unable to convey, renders an application necessary under (m) For cases where taxation has been directed at the in- stance of the cestuique trust, see Re Dickson, 3 Jnr. N. S. 29 j He Damson, 28 Bear. 605. (») Lewiu on Trusts, 5th edit. 455. As to how far a soli- citor is liable to account to cestuisque trust for moneys coming into his hands in the progress of a, suit, see Harries v. Bees, 17 L. T. Eep. N. S. 418. (o) 13 & 14 Vict. c. 60 ; see Appendix. (^) In re Davies, 16 Jur. 882. COSTS UNDER TRUSTEE ACT. 269 this Act, the costs will also be payable out of the estate (q). If the trust estate be sold in lots, it is competent for the purchaser of one of them to obtain an order at the expense of the estate: which may there- fore become liable to bear as many sets of costs as there are purchasers (r). In proceedings under this Act, the Court will, how- ever, exercise a discretion as to allowing costs ; and if the misconduct of a trustee render the proceeding ne- cessary, he may be ordered to pay all the costs occa- sioned by such misconduct («). In proceedings in Courts of Equity between trus- Costs of suit r G 1. J given at the tees and their cesfuisque trust, the costs of the trus- hearing, tee are usually allowed, unless the suit have been rendered necessary by misconduct on his part, or other special circumstances induce the Court to make a dif- ferent order (t). In a suit against a trustee, if part of (q) Heard r. CutUert, llr. Ch.K. 369 ; Bradley t!. Munton, 16 Beav. 294. (r) Ayles v. Cox, 17 Beav. 584. (s) Other cases where costs of proceedings under this act have been considered, are In re Primrose, 23 Beav. 599 ; Re Viall, 8 D. M. & G. 439 ; Re Biddle, 22 L. T. 217 ; Re Fel- lows, 2 Jur. N. S. 62 ; Re Giraud, 9 Jur. N. S. 862 ; the cases are collected in Morgan on Costs, and Adair on Costs. (<) As to the circumstances under which the trustee's costs may be disallowed, see pp. 276, 277. Costs of rehearings by the Lord Chancellor are not included in " costs of suit as between solicitor and client" (Agabeg v. Sartmell, 5 Beav. 271), but require to be specially mentioned. In Prendergast v. Pren- dergast, 3 H. of L. Cas. 195, 225, a trustee was held to be en- titled to appear by counsel on the appeal, but not to print a case or appendix, and was disallowed the costs of so doing. 270 COSTS OF TRUSTEES. Other charges, &c. come under just "allow- ances." the bill fails and part succeeds, he may be ordered to pay an apportioned share only of the costs (u). When any part of the trust fund comes under the immediate control of the Court, the costs of the trustee will ordi- narily be allowed, as between solicitor and client, out of that fund (x). The application to have them so allowed should be made at the hearing, for a cause will not be re-heard on the subject of costs alone (y). And if there be costs and charges due to the trustee in any other suit or matter, he should apply to have them included and specially mentioned (z). The other charges and expenses of the trustee (comprehending all disbursements by him in the ad- ministration of the trust), may be claimed by him without any special order or direction of the Court. They are included under the usual direction in the decree to make "all just allowances " (a). These items should therefore be charged by the trustee in his accounts : and where fairly and properly chargeable, they will be allowed in passing such accounts before the chief clerk. (m) PococTt V. Reddington, 5 Ves. 800. The Court fre- quently fixes a sum, thus avoiding the expense and delay of taxation, see L. R. i Eq. 674. Two sets of costs may be set off against each other, 1 B. C. C. 362. (») Bdenborough v. ArcUisliop of Canterbury, 2 Russ. 112 ; Moore v. P)-omd, 3 My. & C. 49, per Lord Cottenham. (y) Colman v. Sarell, 2 Cox, 206. («) Payne t. Little, 27 Bear. 83. A trustee's costs are not given him until he has paid in any balance due by him ; Birlts V. MioMetJiwait, 33 Eeav. 409. (a) Fearns v. Toung, 10 Ves. 184. COSTS OP SUIT, ETC. 271 As a general rule, where there are several trustees, one set of ° ' costs allowea they are expected to ioin in defending a suit, as well as in general to ''*■>' o 3 30int-trus- in all other proceedings ; and one set of costs only *^^*- will be allowed among them (b). In a case where three joint trustees had answered separately. Lord St. Leonards said, that circumstances might justify the defendants in putting in separate answers : and he accordingly directed the Taxing Master to allow to them the costs as of one answer only, unless he should find that any one had properly put in a separate an- swer, and then to allow his reasonable costs accord- ingly (c). Where in a suit against two trustees, who had severed in their defence, it appeared that one of them had misapplied the trust funds, but no imputation was thrown upon the other, one set of costs was allowed, and it was given wholly to the innocent trustee {d). Where all the trustees are equally in fault, the one Apportion- . Ill nient be- set 01 costs Will be apportioned amongst them by the tween trus- tees as de- fendants. (i) As to the circumstances that will justify joint-trustees in seyering, and the effect of such severance upon the costs, see Reade v. Sparkes, 1 Moll. 10 ; Nicholson T. FalMner, 1 Moll. 555, 560 ; Gaunt v. Taylor, 2 Beav. 346 ; Aldridge t. West- 'brooli, 4 Bear. 213 ; Wiles t. Cooper, 9 Beav. 294; Hughes v. Key, 20 Beav. 395. Where trustees sever for sufficient reason, full costs may be awarded to each ; but a trustee and his cestui- que trust will only receive one set of costs between them ; see Aldridge v. Westirooh, i Beav. 212 ; Remnant v. Hood, 27 Beav. 613. (c) Dudgeon v. Corley, 4 D. & War. 158. (d) Webb V. Webb, 16 Sim. 55 ; Cummins v. Sromfield, 3 Jur. N. S. 657. 272 COSTS OF THtrSTEES. Costa disal- lowed of trustee un- reasonably quitting ; Taxing Master (e). And it may conveniently be stated here, that where co-trustees are defendants in a suit, although the decree will usually be made against all yet an apportionment or contribution, or where all have not been equally in fault, a fixing of the loss on, the person most in fault, may, as between the trustees, be directed, either in the same or in a new suit (_/"). But where fraud has been proved against trustees, the Court refuses to make any apportionment {g). A trustee retiring from the trust from mere caprice, without any reasonable ground for so doing, will have to bear the costs occasioned by his act (A). It has also been seen that circumstances arising in the admi- nistration of the trust, such as to alter the nature of its duties, may entitle the retiring" trustee to his costs (i). Reasons relating to the trustee individually wiU not, in general, be considered as authorizing him to retire at the expense of the estate (k). It has, however, been held that a sole surviving trustee of advanced (e) Course v. Sumplirey, 26 BeaT. 402 ; Att.-Gen. t. Wyvillo, 28 Beav. 464. (/) Baynard t. WooUey, 20 Beav. 583 ; Priestmany. Tin- dall, 24 Beav. 244. {g) Tarleton t. Hornby, 1 Y. & C. Exch. Cas. 336 ; Att.-Gen. T. Wilson, 1 Cr. & Ph. 28. Qi) Hamilton v. M-y, 2 Moll. 458 ; Howard y. Hhodes, 1 Kee. 581 ; Porter v. Watts, 16 Jur. 757 ; MarshallY. Sladden, 7 Ha. 428. A trustee removed for misconduct may be fixed with the costs of a new appointment, JUx parte Gi-eenTwme, 1 Mad. 92. (i) Greenwood Y. WaTieford, 1 Beav. 576; ForsTiam v. Hig- ginson, 20 Beav. 485. (A) Forsliam v. Higginson, supra. COSTS OF TKtJSTEES. 273 age, who has performed the duties of the trust for a long period, may claim to be released, and will be allowed his costs, charges, and expenses (I). A trustee is expected to act in a reasonable manner, or assmning ^ ^ the trust not only in withdrawing from a trust, but in accepting it. Thus where a trustee had been appointed pending a suit to displace his predecessor, having had notice of some irregularities in the execution of the trust, he was refused his costs.-. The Court observed that a per • son thrusting himself, as it were, into a trust, was bound to inquire into the existing circumstances ; and by his neglect to do so, had disentitled himself to costs (m). A trustee will not be allowed the costs of a suit un- Jfocostsai- lowed of un- necessarily or vexatiously commenced by him. Thus "eceesary or ■'•'*' vexatious where a legacy had been assigned to trustees, and they proceeaingis, commenced a suit for its recovery, notwithstanding that they had notice of the existence of a suit and decree for the administration of the assets, under which they might have proved, their costs were dis- allowed (w). So in another case where a suit had been unnecessarily commenced by trustees, who impeached the title of their cestuisque trust by suggesting doubts, the solution of which was not necessary to their own safety, although in so doing they had acted on the advice of counsel, they were nevertheless de- prived of their costs (o). (Z) Gardiner v. Bonnes, 2 Jnr. N. S. 847; 25 L. J. 881. (to) Peatfield v. Benn, 17 Beav. 522. (») Paekwood v. Maddison, 2 Sim. & S. 232. (o) Devei/ t. Thornton, 9 Hare, 222 ; Bradby v. Wldt- chwrch, W. N. 1868, p. 81. n5 274 COSTS UNDER TKUSTEE BELIEF ACT. T?Se™Ke- Costs of proceedings under the Trustee Relief Act lieJ Act. g^j.g^ althougti the Act is silent as to costs, in all cases in the discretion of the Court (p). A trustee, who in a clear case, instead of paying trust money over to those entitled to receive it, lodges it in Court under the Trustee Relief Act, and puts them to the trouble and expense of an application to draw it out; may he obliged to pay costs (§>). But it is not Bxpected that a trustee will, in a doubtful ease, run risks : and where there are adverse claimants, or where the per- son clearly entitled is under disability, a trustee is justified in taking advantage of this Act, and will be entitled to his costs (r). Where there is a dispute only as to the persons en- titled to the money, and not as to the amount payable, a trustee who needlessly files a bill instead of lodging the fund in Court under the Trustee Relief Act, will not be allowed the extra costs occasioned by his resort to the more expensive process (s). It is now settled that the costs of a petition by a tenant for life of a fund which has been lodged in Court under the Trus- tee Relief Act, are payable out of the income and not out of the corpus {t). (p) Re Armston, 10 Jur. N. S. 715. (g') In re Woodiurne, 1 De G. & J. 333 ; see In re Knight, 27 Beav. 45. (r) In re Headington, 27 L. J. Ch. 175 ; Re Swan, 12 W. B. 738 ; 2 Hem. & M. 34 ; Re Wylly, 28 Beav. 458. («) Wells T. Malbon, 31 Beav. 48. In such case the Conrt would now probably fix a small sum for the trustees' costs, see L. R. i Eq. 674 ; also 1 Ir. Eep. Eq. 489. (t) Re Marner's Trusts, L. E. 3 Eq. 432 (orermling Re Turnley, L. B. 1 Eq. 152) ; In re Cameron, 1 Ir. Bep. Eq. 258. COSTS UNDER TRUSTEE RELIEF ACT. 275 ' Trustees taking advantage of this Act should pay in the whole fund ; otherwise, in the absence of some special justification, they may be charged with the costs of accounting for the balance (u). The Court will under some circumstances, in the Sometimes the Court exercise of its discretion, make no rule as to costs of win mase no rule as to proceedings against trustees, leaving each party to costs. bear his own. This course has been adopted in several cases where the trustee has erred in ignorance, and through a wrong construction of doubtful words in the will or instrument [x) ; or where there has been a fair doubt as to the liability of the trustee to make good a loss caused by the misconduct of another per- son {y), — although the decree be made against the trustee (z) ; or where the cestuisque trust have been negligent in enforcing their rights {a). There are in the Eeports numerous cases bearing costs of upon costs of trustees in proceedings in Chancery ; in the discre- „ tion of the the rule, however, can only be stated as follows : that court. THE Court will, in evert case, exercise its dis- cretion AS TO COSTS OF proceedings. All attempts to generalize upon, or classify the decisions, must be (u) MitcheU v. Coib, 17 L. T. 25. Other decisions as to costs under this act (which are of little value apart from the special circumstances of each case), will be found in Lewin on Trusts ; Daniel's Ch. Pr. ; Morgan on Costs, p. 211 — 218 ; and Adair on Costs, p. 199—207. («) O'Callaglian v. Cooper, 5 Ves, 117; Mowsley v. Carr, i Bear. 49. (y) RoieHs T. Ball, 24 L. J. 471. (z) Macnamara v. Carey, 1 Ir. Eep. Eq. 9. (a) Att.-Gen, y. Dudley, Coop. 146. 276 RULES AS TO COSTS OF When costs are generally speaking disallowed. Summary of the law of costs of trustees. V.-C. Malins. more or less imperfect. With this understanding we proceed to remark that it seems tolerably clear, from the authorities, that in suits for the administration of trusts, the trustee, by impeaching the title of the plain- tiffs (b), or by setting up a claim adversely to them (c), or by admitting as due a sum very much smaller than the sum actually due by him, will incur considerable risk of being disallowed his costs : if, however, the Court considers him to have acted honafide, the costs may be given to him, although the Court may adopt the opposite view to that advanced by the trustee, and may admit to the full extent the demands of the cestuique trust (d ), or may disallow any claim that may be made by the trustee (e). The following may be usefully added, as containing the latest judicial summary of the rules of the Court as to costs of proceedings in relation to trusts. In a very recent case V.-C. Malins, in concluding his judg- ment, said — " That most important question remains, who is to (V) Sail T. Montgomery, 2 Ves. Jan. 199 ; Demy v. Thorn- ton, 9 Ha. 222. (c) Att.- Gen. t. Sremers' Company, 1 P. W. 376 ; Willis t. Biscox, 4 My. & C. 197. {d) Poole T. Pass, 1 Beav. GOO. " I admit that it is only in a strong case that costs vidll be given against trustees ; yet where they refuse, without a reasonable motive for their refusal, to act without suit, they will be visited with costs." Per Lord Gifford, M. E., in Ooodson v. Mlisson, 3 Russ. 589. (e) Bennett v. Going, 1 Moll. 529 ; Rashley v. Masters, 1 Ves. Jun. 205. A trustee acting under the advice of counsel will not, in general, be ordered to pay costs; Angier v. Stannard, 3 My. & K. 572. PROCEEDINGS BT AND AGAINST TRUSTEES. 277 pay the costs ? Now the principles of this Court with regard to the duties of trustees are well understood, and are very plain, and they never can with propriety be departed from. Those rules, as I understand them, are these : — that if a trustee conducts himself fairly and properly, having a due regard not only to some of his cestuisque trust, but to all ; indifferently regard- ing the interest of all, and seeing while he is so doing something for the benefit of a tenant for life, that he is not disregarding the interests of those in remainder, he will receive from this Court every protection inci- dental to his position. But if a trustee shows by his conduct that he favours one at the expense of another cestuique trust, that instead of honestly exercising a discretion, he exercises it in a wanton, careless man- ner, to the advantage of one, and to the detriment of another ; and if, above all, he omits that paramount The doty oi duty of a trustee, which is, to have his accounts ready cou™lnd' and open for inspection at all times, and to give the formation, fullest information to all who are interested in the trust whenever they require it ; that is conduct which the Court will not tolerate. If a trustee complies with his duties, the Court will protect him ; but if he fails in them, the Court will make him pay the costs. I have a case here in which the whole course of con- duct, from the beginning to the end, has been vexa- tious, irritating and unjustifiable, and I can have no hesitation in coming to the conclusion, as I do, that these defendants [the trustees] must pay the whole of the costs occasioned by the most improper proceedings 278 COSTS OF PROCEEDINGS, ETC. in which they have embarked, and I order them to pay the costs accordingly." His Honour proceeded to say that the only costs that ought to have been incurred in the case before him were the costs of a common administration suit ; and added that he had on many occasions heard the late L. J. Knight Bruce exercise his discretion in naming a sum ; he therefore now decreed a sum of 200Z. to be deducted as the estimated costs of a proper suit, and the balance of the taxed costs to be paid by the trustees (e). General duty A trustee is, as a general rule, bound to convey or of assigning "^ over, when make over the trust property to his cestuiaue trust. trusts ended. r r j i ; when none of the trusts remain unfulfilled ; and he may be charged with the costs of a suit occasioned by his refusal to do so (_/). But if the trustee have reason to suspect that an arrangement has been made between a parent and his children in derogation of the just claims of the latter, that undue influence has been used, that there is an absence of fairness and good faith, the trustee may be justified in refusing to carry out the arrangement so made ; and the Court will support him in his refusal, and wiU give him his a fWJl^ (^) Talbot T. MarsTifield, L. R. 4 Eq. 661, 674. V.-C. M. It ^ I ' can hardly be doubted that the practice of fixing a sum is a /L l^r' highly convenient one, as it informs the suitor at once as to the /p / extent of his liability, and avoids the expense and delay of a re- / ference to the Taxing Master. (/) If the obligation to pay be acknowledged by the trustee, it may be the subject of an action at law against him, as ■well as a suit in equity. Topham v. Morecraft, 6 W. R. 295. COSTS or PROCEEDINGS, ETC. 279 costs ( g) ; but the grounds for suspicion must, in such a case, be evident (A). Although it has been said to be the rule that where there has been a breach of trust, the costs are decreed against the trustee (i), this, hke all other so-called rules on the subject of costs, is subject to many ex- ceptions. The Court will in each case consider the conduct of the trustee and the other circumstances. It by no means follows that a trustee who by mak- costs ao not ^ '' necessarily ing an improper investment, or otherwise, has incurred fouow decree the liabilities of a breach of trust, will be ordered to trustee. pay all the costs of the suit. If his conduct has been bona fide, and straitforward, although he has made a mistake, the rule as to costs of suit may be otherwise (_/). So far as a suit is in other respects for the benefit of the parties, as, for example, where it is required for the general administration of the estate, the costs of all parties, including the trustee, will in general be allowed {K) ; and a clear neglect of duty on the part of the trustee may only subject him to payment of so much of the costs as have been occasioned by his mis- conduct (Z). ( ff) Sannah T. Hodgson, 30 Beav. 19 ; Kiiig v. King, 1 De G. & J. 663. Qi) Mrmin v. PulJiam, 2 De G. & Sm. 99. (i) Lord Langdale in Byrne v. Narcott, 13 Beav. 346 ; see Fitzgerald v. Fitzgerald, 6 Ir. Ch. Eep. 145 ; Kemp v. Sum, i GifB. 348. (J) See Macnamara v. Carey (on appeal), 1 Ir. Eep. Eq. 9. (it) See White y. JaoTison, 15 Beav. 191. (J) Pride v. FooTis, 2 Beav. 430 ; HeigMngton T. Grant, 1 Phil. 600 ; Knott v. Cottee, 18 Beav. 77 ; TeVbs v. Carpenter 1 Mad. 290, 308 ; Sanderson v. Walker, 13 Ves. 601, 604. 280 COSTS OF PROCEEDINGS, ETC. Costs maybe allowed when Interest ia decreed. When the trustee will have to pay costs of the suit. It was at one time held that wherever an account with interest was directed against a trustee, the costs of the suit would be given against him : the Court does not now exercise such severity (m). In a recent case a decree was made against the trustee, with compound interest, as he had retained moneys in his hands in the face of an express trust for accumulation. He was, nevertheless, allowed his costs, excepting costs of exceptions which had been overruled. In reference to a proposition to apportion the costs. Lord Romilly, M. R., expressed his disinclination to make refined dis- tinctions in the apportionment of costs, on account of the expense of apportionment : Costs were accordingly ordered to the trustee, to be taxed as between solicitor and client, excluding the cost of his exceptions as above (w). Where the suit is rendered necessary solely through the fraud, negligence, or misconduct, of the trustee (o), (to) Solgate v. Hamorth, 17 Bear. 259. (n) Knott T. Cottee, 18 Beav. 77. (c) Side Y. Haywood, 2 Atk. 126 ; Fell v. Lutridge, Barr, 322 ; Jones v. Lewis, 1 Cox, 199 ; Caffrey y. Dariy, 6 Yes. 488 ; SocJie v. Hart, 11 Ves. 58, 62 ; Oracltelt v. Betlame, 1 J. & W. 586 ; Willis v. Hiseox, i My. & C. 197 ; Byrne t. Nbrcott, 13 Bear. 336, 3i6. Where joint trustees have been guilty of a breach of trust, and a' decree is made against them, the Court will not enter into the question, how far one defend- ant may be less culpable than another. The costs will be given against all. The question is not whether one of them is the more culpable, but whether the plaintiff is to be deprived of the double security which a decree for costs, against both the parties by whom his estate had been endangered, would give him ; Lord Cottenham in Lamrenoe v. Borole, 2 Phil. 140. COSTS OF PROCEBDIKGS, ETC. 281 or even through his obstinacy or caprice ( p), or re- fusal to account {q), he will, as a general rule, be ordered to pay all the costs of the suit. However, in many cases special circumstances have, in the opinion of the Court, rendered the rule inapplicable (r). The exceptions are so numerous as to render impossible any definite statement as to what amount of misconduct, on the part of the trustee, will subject him to the costs of the suit. The Court will. Motives of trustee will in every case, regard not only his actions, but also the be considered. motives by which he appears to have been actuated. It is not the duty or the practice of the Court to visit trustees with penalties in the shape of costs, except where they act from interested motives, or wantonly and intentionally conduct themselves in a vexatious and oppressive manner (s). Although the rule is, that where a suit has been in- others may be primarily stituted solely to make the trustee answerable for a uawe. (jp) " Tnistees are entitled to the protection and direction of the Court in the exercise of their trusts, and can never be called upon to pay costs, unless they refuse to act without suit merely from obstinacy and caprice ;" per Sir J. Leach, in Taylor v. Granville, 3 Mad. 178. A similar penalty may be incurred by the trustee who from excess of caution prosecutes a suit where no question exists as to the rights of parties ; Bradiy v. Wliit- cliurcn,'W.'S. 1868, p. 81. (?) See Kemp v. Burn, i GifE. 348 ; see also L. R. 4 Eq. 674, and p. 277, ante. (r) Pococli V. Reddington, 5 Ves. 800 ; Taylor v. Talrum, 6 Sim. 281 ; Flanagan v. Nolan, 1 Moll. 84 ; Travers v. Town- send, ib. 496 ! Bennett v. AtUns, 1 Y. & C. 249.; Att.-Gen. t. Dudley, Coop. 146 ; Att.-Gen. v. Caius Coll. 2 Keen, 150, (s) NoUe T. Meymott, 14 Bear. 471, 480, (M. R) 282 COSTS OP CHAEITY-TRtrSTEES. breach of trust, the decree will be made with costs (t). Yet if other persons have had the benefit of the breach of trust, they will be primarily liable (u). Costs ot It -was early decided that where a trustee for sale setting aside '' sale to a became himself the purchaser of the trust estate, and trustee. ^ ' a decree was obtained setting aside the sale, the costs of the suit should be paid by the trustee (a;). Cases have, however, occurred where the Court has taken into consideration the fair and honourable conduct of the defendant, and has declined to charge him with the cost of the suit against him (y), or has refused to award costs on account of unnecessary delay that has taken place on the part of the plaintiff (s). Costs of Trustees of charity lands have been deprived of charity trusts. their costs, by reason of their having inserted in leases to tenants covenants for their own private ad- vantage (a). But unless there be serious misconduct proved against them, trustees for charitable purposes are entitled to all costs out of the trust-property, and may charge them in their accounts. But charity trustees having several properties vested in them (<) Per L. Langdale in Syrne t. Norcott, 13 Beav. 336. (m) Eaves v. HicUson, 30 Beav. 136, where the sum due was ordered to be paid (1) by the parties who had the benefit of the breach of trust, (2) by the party who caused it by forging a cer- ficate, (3) lastly by the trustees. (») In the leading case of Fox v. MacTt/reth, 4 Bro C C. 400 ; see notes to that case in 2 Le Ca. Eq. (jr) Baiter v. Carter, 1 Y. & C. Exch. 250. («) Gregoi-y T. Gregory, Coop. 201 ; Cliampion v. Righy, 1 EU3S..& M. 539. (a) Att.' Gen. v. Mayor of Stamford, 2 Sw. 592. COSTS OF PROCEEDINGS. 283 cannot indemnify themselves out of one, for expenses incurred in respect of others. And where on an infor- mation ex officio, a charity estate was held to have been lost through breach of condition, the trustees could not recover their costs, either from the Attorney- General or out of the estate (b). There is reason for concluding, that when a pur- where chase of the estate of an infant cestuique trust is set trust is an aside under the rule of Equity referred to, the ordi- nary maxim, that costs follow the decree, will be strictly adhered to. In a case where the estate of an infant had been purchased by trustees by public auc- tion, and without any imputation of fraud, Lord Eldon, in ordering payment of the costs incident to a resale by the trustees, said that he did not consider that infants were bound to seek such relief against their trustees, at the hazard of the expense attending it (c). In actions and suits between the trustee and costs oipro- , . , . , . . , . . , ceeaings be- third parties, ne is in the same position as regards tween trustee ■^ jr D and third costs as any other plaintiff or defendant. If sue- parties. cessful, he will, therefore, be entitled only to costs as between party and party (d ). If he fail, only party and party costs can be recovered against him. (J) Att.-Gen. v. Grainger, 7 W. E. 684. (c) Sanderson, t. WaVier, 13 Ves. 604. In this case the costs were apportioned : so much of them as had been incurred by reason of the conduct of the trustee were ordered to be paid by him. It is becoming usual to fix a sum for costs — • ayoiding a reference to the Taxing Master ; see L. E. 4 Eq. 674, and 1 Ir. Eep. Eq. 489. (e exercised iy the Court in Ireland. 55. And be it enacted, that the powers and authorities given by this Act to the Court of Chancery in England shall and may be exercised in Uke manner and are hereby given and extended to the Court of Chancery in Ireland with respect to all lands and per- sonal estate in Ii'eland. Jurisdiction of Lord Cliancellor in Lunacy as to Property in the Colonies. 56. And be it enacted, that the powers and authorities given by this Act to the Lord Chancellor of Great Britain intrusted as aforesaid, shall extend to all lands and personal estate within any of the dominions, plantations and colonies belonging to her Majesty (except Scotland and Ireland). Jurisdiction of Lord Chancellor of Ireland. 57. And be it enacted, that the powers and authorities given by this Act to the Lord Chancellor of Great Britain intrusted as afore- Trustee Act {Extension), 1852. 311 said shall and may be exercised in like manner and are hereby given to the Lord Chancellor of Ireland iutmsted as aforesaid, with re- spect to all lands and personal estate in Ireland. ShoH Title. 58. And be it enacted, that in citing this Act in other Acts of Parliament, and in legal instruments and in legal proceedings, it shall be sufficient to use the expression " The Trustee Act, 1850." Commencement of Act. 59. And be it enacted, that this Act shall come into operation on the Ist day of November, 1850 (a). TRUSTEE ACT (EXTENSION), 1852. An Act to extend the Provisions of " The Trustee Act, 1850." 15 4- 16 Vict. c. 55.— 30th June, 1852. Whereas it is expedient to extend the provisions of the Trustee Act, 1850 : Be it therefore 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, Cowrt may make an Order vesting the Estate after a Decree or Order for Sale. 1. That 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 proceed- (a) Tliis Act is considered in Chapter III. p. 40 et aeq. 312 Appendix. ing in which such decree or order shall have been made, and bound thereby, or being otherwise bonnd 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 effect, to make an order vesting such lands or any part thereof, for such 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 effect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assignments of such lands for such estate. Pomer to make such Order on Refusal, ^c. of a Tnistee to convey, ^c. 2. That sections numbered seventeen and eighteen in the Queen's printer's copy of the Trustee Act, 1860, be repealed ; and in every case where any person is or shall be jointly or solely seised or pos- sessed of any lands or entitled to a contingent right therein upon any trust, and a demand shall have been made upon such trustee by a person entitled to. require a conveyance or assignment of such lands, or a duly authorized agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right it shall be lawful for the Court of Chancery, if the said Court shall be satisfied that such trustee has wUfully refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person, in such manner and for such estate as the Court shall direct, or releasing such contingent right in such manner as the Court shall direct ; and the said order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands, or a release of such right, in the same manner and for the same estate. Pomer to make an Order for the T}ransfer of Stock, ,fc. in tie Name of an Infant Trustee. 3. That when any infant shall be solely entitled to any stock Trustee Act {Extension), 1852. 313 upon any trnst, it shall be lawful for the Court of Chancery to make an order vesting in any person or persons the right to transi- f er such stock, or to receiye the dividends or income thereof ; and when any infant shall be entitled jointly with any other person or persons to any stock upon any trnst, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in bim or them together with any other person or persons the said Court may appoint. On Neglect to transfer Stocli for twenty-eight Days, Order may be made vesting Sight to transfer, <^c. 4. That where any person shall neglect or refuse to transfer any stock, or to receive the dividends or income thereof, or to sue for or recover any chose in action, or any interest in respect thereof, for the space of twenty-eight days next after an order of the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an order vesting all the right of such person to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or per* sons as the said Court may appoint. On like Neglect iy JUxecutor, similar Order may Se made; 5. When any stock shall be standing in the sole name of a d'e^ ceased person, and his personal representative shall refuse or neg- lect to transfer such stock, or receive the dividends or income thereof for the space of twenty-eight days next after an order of the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said Court may appoint. Bank of England and Companies to comply with Orders. 6. When any order being or purporting to be under this Act, or under the Trustee Act, 1850, shall be made by the Lord Chancellor U. P 314 Appendix. intrusted as aforesaid, or by the Court of Chancery, vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the transfer of any stock, in any per- son or persons, in every such case the legal right to transfer such stock shall vest accordingly ; and the person or persons so appointed shall be authorized and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names, or otherwise, to the ex- tent and in conformity with the terms of the order ; and the Bank of England, and all companies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order, as the said Bank of England, or such companies, associations or persons would have been bound and compellable to comply vrith the requi- sitions of the person in whose place such appointment shall have been made. Indemnity to Bank and Companies so complying. 7. That every order made or to be made, being or purporting to be made under this or the Trustee Act, 1850, by the Lord Chan- cellor intrusted as aforesaid, or by the Court of Chancery, and duly passed and entered, shall be a complete indemnity to the Bank of England, and all companies and associations whatsoever, and all persons, for any act done pursuant thereto; and it shall not be necessary for the Bank of England, or such company or association or person, to inquire concerning the propriety of such order, or whether the Lord Chancellor intrusted as aforesaid, or the Court of Chancery, had jurisdiction to make the same. Power to appoint new Trustees, in lieu of Persons convicted of Felony. 8. That when any person is or shall be jointly or solely seised or possessed of any lands or entitled to any stock upon any trust, and such person has been or shall be convicted of felony, it shall be lawful for the Court of Chancery, upon proof of such conviction, to appoint any person to be a trustee in the place of such convict, and to make an order for vesting such lands, or the right to transfer Trustee Act [Extension), 1852. 315 such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee : and 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. Pomer to the Court to appoint new Trustees where there is no existing Trustee. 9. That in all cases where it shall be expedient to appoint a new trustee, and it shall be found inexpedient, difficult, or impracticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court to make an order appointing a new trustee or new trustees, whether there be any existing trustee or not at the time of making such order. Orders for Appointment of Trustees may ie made in JJwnacy. 10. In every case in which the Lord Chancellor intrusted as aforesaid has jurisdiction under this Act, or the Trustee Act, 1850, to order a conveyance or transfer of land or stock, or to make a vesting order, it shall be lawful for him also to make an order appointing a new trustee or new trustees, in like manner as the Court of Chancery may do in like cases, without its being neces- sary that the order should be made in Chancery as well as in lunacy, or be passed and entered by the registrar of the Court of Chancery. As to Powers of Persons intrusted with the Care of lAtnatios. 11. That all the jurisdiction conferred by this Act on the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics, shall and may be had, exercised, and performed by the person or persons for the time being intrusted as aforesaid. Act to ie construed as Part of Trustee Act, 1850. 12. That this Act shall be read and construed according to the definitions and interpretations contained in the second section of the Trustee Act, 1850, and the provisions of the said last-mentioned Act (except so far as the same are altered by or inconsistent with p2 316 Appendix. this Act) shall extend and apply to the cases provided for hy this Act, in the same way as if this Act had been incorporated with and had formed part of the said Trustee Act, 1850. Certain Orders made under Trustee Acts to te cha/rgeaMe mith Stamp Duty. 13. That every order to he made nnder the Trustee Act, 1850, or this Act, which shall have the effect of a conveyance or assign- ment of any lands, or a transfer of any such stock as can only be transferred by stamped deed, shall be chargeable with the like amount of stamp duty as it would have been chargeable with if it had been a deed executed by the person or persons seised or pos- sessed of such lands, or entitled to such stock ; and every such order shall be duly stamped for denoting the payment of the said duty (o). TRUSTEE RELIEF ACT, 1847. An Act for better securing Trust Funds, and for the Eelief of Trustees. 10 <^ 11 Vict. c. 96.— 22nd July, 1847. "Wheebas it is expedient to provide means for better securing trust funds, and for relieving trustees from the responsibility of adminis- tering trust funds in cases where they are desirous of beiug so re- lieved : 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, (a) This Act is considered in Cliapter III. p. 46, ante : as to stamping orders, see p. 70. Trustee Relief Act, 1847. 317 Trustees may pay Trust Moneys, Sj~o., into the Court of Chancery : Receipt of the proper Officer to ie a sufficient discharge. That all trustees, executors, administrators, or other persons, having in their hands any moneys belonging to any trust whatso- eTer, or the major part of them, shall be at liberty, on filing an affi- da-vit shortly describing the instrument creating the trust, according to the best of their knowledge and belief, to pay the same, with the privity of the Accountant-General of the High Court of Chancery, into the Bank of England, to the account of such Accountant- General in the matter of the particular trusts (describing the same by the names of the parties, as accurately as may be, for the pui-- pose of distinguishing it), in trust to attend the orders of the said Court ; and that all trustees or other persons having any annuities or stocks standing in their name in the books of the Governor and Company of the Bank of England, or of the East India Company, or South Sea Company, or any Government or Parliamentary securities standing in their names or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said Accountant-General, with his privity, in the matter of the particular trust (describing the same as aforesaid), in trust to at- tend the orders of the said Court ; and in every such case the re- ceipt of one of the cashiers of the said bank for the money so paid, or, in the case of stocks or securities, the certificate of the proper officer, of the transfer or deposit of such stocks or securities, shall be a sufficient discharge to Such trustees or other persons for the money so paid, or the stocks or securities so transferred or de- Court of Chancery to malte Orders on Petition, rvithout Bill, for Administration of Trust. 2. And be it enacted, that such orders as shall seem fit shall be, from time to time, made by the High Court of Chancery, in respect of the trust moneys, stocks, or securities so paid in, transferred, and deposited as aforesaid, and for the investment and payment of any such moneys, or of any dividends or interest on any such stocks or securities, and for the transfer and delivery out of any such stocks 318 Appendix. and securities, and for the administration of any such trusts gene- rally, upon a petition to be presented in a summary way to the Lord Chancellor or the Master of the KoUs, without bill, by such party or parties, as to the Court shall appear to be competent and necessary in that behalf, and service of such petition shall be made upon such person or persons as the Court shall see fit and direct ; and every order made upon any such petition shall have the same authority and effect, and shall be enforced, and subject to rehearing and appeal, in the same manner as if the same had been made in a suit regularly instituted in the Court; and if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be insti- tuted. Regulating Salary of Accountant- General. 3. Provided always and be it enacted, that the additional remu- neration which the said Accountant-General may receive in conse- quence of the operation of this Act shall not have the effect of giving to him any claim for a larger income, by way of salary or otherwise, in the event of the said otfice of Accountant-General being hereafter regulated by competent authority, than would have been assigned to him if this Act had not been passed. Power of maTiing General Orders. 4. And be it enacted, that the Lord Chancellor, with the assist- ance of the Master of the Rolls or of one of the Vice-Chancellors, shall have power, and is hereby authorized to make such orders as from time to time shall seem necessary for better carrying the pro- visions of this Act into effect. Interpretation. 5. And be it enacted, that in the construction of this Act, the ex- pression " the Lord Chancellor" shall mean and include the Lord Chancellor, Lord Keeper, and Lords Commissioners for the custody of the Great Seal of Great Britain for the time being. Trustee Relief Act, 1849. 319 TRUSTEE RELIEF ACT, 1849. An Act for the further Relief of Trustees. 12 ^ 13 Vict. c. 74.— 28y express Declaration. 32. None of the powers or incidents hereby conferred or an- nexed to particular offices, estates, or circumstances shall take effect or be exercisable if it is declared in the deed, will, or other instru- ment creating such offices, estates, or circumstances that they shall not take effect ; and where there is no such declaration, then if any Tariations or limitations of any of the powers or incidents hereby conferred or annexed are contained in such deed, will, or other in- strument, such powers or incidents shall be exercisable or shall take effect only subject to such variations or limitations. No Persons other tlian those entitled under the Settlement, ^o. to be affected. 33. Nothing in this Act contained shall be deemed to empower any trustees or other persons to deal with or affect the estates or rights of any persons socTcr, except to the extent to which they might have dealt with or affected the estates or rights of such persons if the deed, mil, or other instrument under which such trustees or other persons are empowered to act had contained ex- press powers for such trustees or other persons so to deal with or affect such estates or rights. Commencement of Act. 3i. The provisions contained in this Act shall, except as herein- before otherwise provided, extend only to persons entitled or acting under a deed, will, codicil, or other instrument executed after the passing of this Act, or under a will or codicil confirmed or revived by a codicil executed after that date.' Extent of Act. 35. This Act shall not extend to Scotland. Q 2 340 Appendix. FRAUDULENT TRUSTEES. (CRIMINAL CONSOLIDATION.) An Act to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar Offences (a). 24 ^ 25 Vict. c. 96.— 6th August, 186L Trustees, fraudulently/ disposing of Property, guilty of a Mis- demeanor. — No Prosecution shall te commenced mithout the Sanction of some Judge or tlie Attorney- General. 80. Whosoeyer, being a trustee of any property for the nse or benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same or any part thereof to or for his own nse or benefit, or the use or benefit of any person other than such person as aforesaid, or for any purpose other than such public or charitable purpose as aforesaid, or otherwise dispose of or destroy such property or any part thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to any of the punishments which the Court may award as hereinbefore last mentioned : Provided, that no proceeding or pro- secution for any offence included in this section shall be com- menced without the sanction of her Majesty's Attorney-General, or, in case that office be vacant, of her Majesty's Solicitor-General : Provided also, that where any civil proceeding shall have been taken against any person to whom the provisions of this section may apply, no person who shall have taken such civil proceeding (a) Ee-enaotlDg the provisions of the Fraudulent Trustees Act, 20 & 21 Vict, c. 54 (repealed). Fraudulent Trustees. 341 shall commence any prosecution under this section \vithont the sanction of the Court or Judge before whom such civil proceeding shall have been had or shall be pending. No Person to he exempt from answering Questions in any Court, hut no Person making a Disclosure in any corwpulsory Pro- ceeding to he liahle to Prosecution. 85. Nothing in any of the last ten preceding sections of this Act contained shall enable or entitle any person to refuse to make a full and complete discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in any Court, or upon the hearing of any matter in bankruptcy or insolvency ; and no person shall be liable to be convicted of any of the misdemeanors in any of the said sections mentioned by any evidence whatever in respect of any act done by him, if he shall at any time previously to his being charged with such offence have first disclosed such act on oath, in consequence of any compulsory process of any Court of law or equity, in any action, suit, or pro- ceeding which shall have been hona fide instituted by any party aggrieved, or if he shall have first disclosed the same in any com- pulsory examination or deposition before any Court upon the hearing of any matter in bankruptcy or insolvency. No remedy at Lam or in Equity shall he affected. — Convictions shall not he received in Evidence in Civil Suits. 86. Nothing in any of the last eleven preceding sections of this Act contained, or any proceeding, conviction, or judgment to be had or taken thereon against any person under any of the said sections, shall prevent, lessen, or impeach any remedy at law or in equity which any party aggrieved by any offence against any of the said sections might have had if this Act had not been passed ; but no conviction of any such offender shall be received in evi- dence in any action at law or suit in equity against him ; and nothing in the said sections contained shall affect or prejudice any agreement entered into or security given by any trustee, having for its object the restoration or repayment of any trust property misappropriated. 342 Appendix. Certain Misdemeanors not triable at Sessions. 87. No misdemeanor against any of the last twelve preceding sections of this Act shall be prosecuted or tried at any court of general or quarter sessions of the peace (a). THE IMPROVEMENT OF LAND ACT, 1864. 27 ^ 28 Vict. c. 1 14.— 29th July, 1864. Charges to te Personal Property ; but Money autlwrized to te invested on Seal Security may he invested therein, or on Mortgages thereof. 60. Every charge under this Act shall, as regards the holder thereof, he deemed to be personal property, except that any holder of such a charge, who shall desire to extinguish the same by re- uniting it to the land charged, shall have power for that purpose to direct by any deed that it shall be re-united to and merge in the beneficial interest in the said land, as if it were of the same nature and tenure therewith ; but all trustees, directors and other persons who may be directed or authorized to invest any money on real se- curity shall (unless the contrary be provided by the instrument directing or authorizing such investment) have power, at their dis- cretion, to invest money in such charges or on mortgages thereof. (o) These enactments were considered in Reg. v. Massall, 9 W. R. 70S, and Reg. T. Fletcher^ 10 W. R. 753. In tlie lormer case a treasurer of a " money club," or unregistered friendly society, was held to be not within the Act. In the latter case a trustee of a savings bank, bound by its rules to apply deposits in a particu- lar way and who had misappropriated the funds, was held on appeal to have been rightly convicted. The Mortgage Debenture Act (1865). 343 Charges not to preclude Trustees from investing in Purchase or on Mortgage of Lands. 61. No charge on land made by an absolute order by virtue of this Act shall be deemed such an incumbrance as shall preclude a trustee of money, with power to invest the same in the purchase of land or on mortgage, from investing it in a purchase or upon a mortgage of the land so charged, unless the terms of his trust or power expressly provide that the land to be so purchased or taken in mortgage be not subject to any prior charge (a). THE MORTGAGE DEBENTURE ACT (1865). An Act to enable certain Companies to issue Mortgage Debentures founded on Securities upon or affecting Land, and to make provision for the Registration of such Mortgaged Debentures and Securities. 28 8f 29 Vict. c. 78.— 29th June, 1865. Further Powers of Investment to Trustees. 40. In all cases in which, by the instrument creating the trust, trustees have a general power to invest trust moneys in or upon the security of shares, stock, mortgages, bonds or debentures of com- panies incorporated by or acting under the authority of an Act of Parliament, they may invest such trust moneys on the security of mortgage debentures duly issued under and in accordance with the provisions of this Act. (a) See page 128, ante. 344 Appendix. JURISDICTION OF COUNTY COURTS. An Act to confer on the County Courts a limited Juris- diction in Equity. 28 Sf 29 Vict. c. 99.— 5th July, 1865. Jii/risdiction in Equity to ie exercised in County Courts in cer- tain Suits and Matters. 1. The County Courts held by virtue of an Act passed in the Session of Parliament holden in the ninth and tenth years of the reign of her Majesty, chapter ninety-five, shall have and exercise all the power and authority of the High Court of Chancery in the suits or matters hereinafter mentioned ; that is to say : — • 1. In all suits by creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether in tmst or otherwise), heirs- at-law, or next of kin, in which the personal or real or per- sonal and real estate against or for an account or adminis- tration of which the demand may be made shall not exceed in amount or value the sum of five hundred pounds ; 2. In all suits for the execution of trusts in which the trust es- tate or fund shall not exceed in amount or value the sum of five hundred pounds : 3. In all suits for foreclosure or redemption, or for enforcing any charge or lien where the mortgage, charge, or lien shall not exceed in amount the sum of five hundred pounds : 4. In all suits for specific performance, or for the deUvering up or cancelling any agreement for the sale or purchase of any property where the purchase-money shall not exceed the sum of five hundred pounds : 5. In all proceedings under the Trustees Belief Acts, or under the Trustee Acts, or under any of such Acts in which the trust estate or fund to which the proceeding relates shall Jurisdiction of County Courts. 345 not exceed in amount or valne the sum of five iiundred pounds : 6. In aU proceedings relating to the maintenance or advance- ment of infants in which the property of the infant shall not exceed in amount or value the sum of five hundred pounds : 7. In all suits for the dissolution or winding-up of any partner- ship in which the whole property, stock, and credits of such partnership shall not exceed in amount or value the sum of five hundred pounds : 8. In all proceedings for orders in the nature of injunctions where the same are requisite for granting relief in any matter in which jurisdiction is given by this Act to the County Court, or for stay of proceedings at law to recover any debt proveable under a decree for the administration of an estate made by the Court to which the application for the order to stay proceedings is made. In Matters under this Act, Judge and Officers of the County Courts to have the Powers and Authorities of a Judge am,d Officers of the Coxii't of Chancery. 2. In all such suits or matters the judge of a County Court shall, in addition to the powers and authorities now possessed by him, have all the powers and authorities for the purposes of this Act, of a Judge of the High Court of Chancery ; and the treasurer, re- gistrar, and high bailifE shall, in all matters in which the County Court has Jurisdiction under this Act, discharge any duties which an officer of the Court of Chancery can discharge, either under the order of a Judge of such Court or the practice thereof, and all officers of the County Courts shall in discharging such duties conform to any rules or orders to be framed as hereinafter pro- vided. Power to a Vice-Cliancellor to order transfer of Suits from County Court to Court of Chancery. 3. Any one of the Vice-Chancellors, on the application at Chambers of any party to any suit or matter pending under this Act, shall have power, then and there, or, if he shall think fit, after Q5 346 Appendix. hearing a summons served upon the other party or parties, to transfer the same to the Court of Chancery, upon such terms, if any, as to security for costs or otherwise, as he may think fit. Where amount of Subject-Matter of Suit exceeds limit of the Jurisdiction of County Court, Suit tnay ie remitted to Cov/rt of Chancery, ^c. 9. If during the progress of any suit or matter it shall he made to appear to the Court that the subject-matter exceeds the limit in point of amount to which the jurisdiction of the County Courts is hereby limited, it shall not affect the validity of any order or de- cree already made, but it shall be the duty of the Court to direct the said suit or matter to be transferred to the Court of Chancery, and thereupon the said suit or matter shall proceed in such one of the Vice-Chancellors' Courts as the Lord Chancellor may by general order direct ; and such Vice-Chancellor shall have power to regu- late the whole of the procedure in the said suit or matter when so transferred : Provided always, that it shall be lawful for any party to apply to such Vice-Chancellor at Chambers for an order authoriz- ing and directing the suit or matter to be carried on and prosecuted in the County Court, notwithstanding such excess in the amount of the hmit to which jurisdiction in the matter is hereby given to the County Courts ; and the Vice-Chancellor, if he shall deem it right to summon the other parties or any of them to appear before him for that purpose, after hearing such parties, or on default of the appearance of all or any of them, shall have full power to make such order. In mhat Courts Proceedings shall he taken. 10. With respect to the Court in which proceedings in Equity shall be taken — 1. Proceedings under this Act which relate to the recovery or sale of any mortgage, chaa-ge, or lien on lands, tenements, or hereditaments shall be taken in that County Court within the district of which the lands, tenements, or hereditaments, or any part thereof, are situate : 2. Proceedings under the Trustee Acts, 1850 and 1852, shall be taken in the County Court within the district of which the Jurisdiction of County Courts. 347 persons making the application, or any of them, reside or resides : 3. Proceedings for the administration of the assets of a deceased person shall be taken in the County Court within the district of which the deceased person had his last place of abode in England, or in which the executors or adminis- trators, or any one of them, shall have their or his place of abode : 4. Proceedings in partnership cases shall be taken in the County Court within the district of which the partnership business was or is carried on : 5. Proceedings for the specific performance or the delivery up or canceUing of agreements shall be taken in the County Court within the district of which the defendants, or any one of them, reside or resides, or carry on or carries on business : 6. Proceedings in any suit or other matter under this Act, which are not otherwise provided for, shall be taken or instituted in the County Court within the district of which the defend- ants, or any or either of them, shall reside or carry on business. As to transfer of Suit from one County Cowt to another. 11. If during the progress of a suit or matter it shall be made to appear to the Court that the same could be more conveniently prosecuted ia some other County Court, it shall be competent for the Court to transfer the same to such other County Court, and thereupon the suit or matter shall proceed in such other County Court. KoTE. — Sect. 16 gives power to frame rules and orders ; and Sect. 17 gives power to frame scales of costs — all with the approval of the Lord Chancellor. Sect. 18 enables parties to appeal to a Vice-Chancellor within thirty days, after a decision of the County Court under this Act. 348 Appendix. INVESTMENT OF SCOTTISH TRUST FUNDS. An Act to facilitate the Administration of Trusts in Scotland. 30 <^ 31 Vict. c. 96.— 12th August, 1867. Powers of Trustees under Trust Deeds with respect to Investments. 5. Trustees under any trust deed may, unless the contrary be ex- pressly provided in such tmst deed, inTest the trust funds in the purchase of any of the Government stocks, public fwnds or secttr- rities of the United Xingdom, or stocli of the Sanh of Englcmd; or may lend the trust funds on the security of any of the aforesaid stocks or funds, or on the security of any heritable property in Scotland, and may from time to time at their discretion vary any such investment or loan ; Provided that the trustees shall not be held to be subject as defendants or respondents to the jurisdiction of any of her Majesty's Superior Courts of Law or Equity in Eng- land or Ireland, either as trustees or personally, by reason of their having invested or lent trust funds as aforesaid. Investments in East India Stock. 349 INVESTMENTS IN EAST INDIA STOCK. An Act to remove Doubts as to the Power of Trustees, Executors, and Administrators to invest Trust Funds in certain Securities, and to declare and amend the Law relating to such Investments. 30 4- 31 Vict. c. \Z2.—20th August, 1867. Whereas by an Act passed in the Session holdeu in the twenty- second and twenty-third years of her present Maj esty , chapter thirty- fire, " to further amend the Law of Property, and to relieve Trus- tees," it is enacted, that " when a trustee, executor, or adminis- trator shall not by some instruments creating his trust be expressly forbidden 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, it shall be lawful for such trustee, executor, or administrator to invest such trust fund on such secu- rities or stock, and he shall not be liable on that account as for a breach of trust, provided that such investment shall iu other re- spects be reasonable and proper :" And whereas doubts have arisen as to the legal effect and signi- fication of the words " East India Stock " in the said Act men- tioned : Be it therefore enacted and declared by the Queen's most ex- cellent 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 : Application of Term, " East India Stock " in recited Act. 1. The words " East India Stock " in the said Act passed in the session holden in the twenty-second and twenty-third years of her Majesty, chapter thirty-five, shall include and express as well the East India stock which existed previously to the thirteenth day of 350 Appendix. August one thousand eight hundred and fifty-nine, when the said Act received the assent of her Majesty, as East India stock charged on the revenues of India, and created under and by virtue of any Act or Acts of Parliament which received her Majesty's assent on or after the thirteenth day of August one thousand eight hundred and fifty-nine ; and it shall be lawful for every trustee, executor, or administrator to invest any trust fund in his possession or under his control in the stock created by the last- mentioned Act or Acts to the same extent, and for the same pur- poses and objects, as he can now invest such trust fund in the East India stock which existed previously to the thirteenth day of August one thousand eight hundred and fifty-nine. Trustees may invest in any Securities Interest whereon is guaranteed iy Parliament. 3. It shall be lawful for every trustee, executor, or administrator to invest any trust fund in his possession or under his control in any securities the interest of which is or shall be guaranteed by Parliament to the same extent and in the same manner as he may invest such trust fund in such securities as aforesaid (a). COUNTY COURTS. An Act to amend the Acts relating to the Jurisdiction of the County Courts. 30 Sf 31 Vict. c. 142.— 20th August, 1867. Trustees may pay Trust Moneys or transfer Stock and Securi- ties into the Court. 24. Any moneys, annuities, stocks, or securities vested in any persons as trustees, executors, administrators, or otherwise, upon (a) See page 124, ante. County Courts. 351 trusts within the meaning of an Act passed in the session of Par- liament holden in the tenth and eleventh years of the reign of her present Majesty, chapter ninety-six, " for better securing " trust funds, and for the relief of trustees," where the same does not exceed ia amount or value the sum of five hundred pounds, upon the filing by such trustees or other persons, or the major part of them, to or with the registrar of the county court withia the dis- trict of which such persons or any of them shall reside, an affidayit shortly describing the instrument creating the trust according to the best of their knowledge, may in the case of money be paid into a post-office saviugs bank established in the town in which the county court is held in the name of the registrar of such court, in trust to attend the orders of the Court, and upon such persons filing with the registrar the receipt or other document given to them by the officer of the said bank the registrar shall record the same, and give to them an acknowledgment in such form as may be directed by any rule of practice, which acknowledgment shall b6 a sufficient discharge to such persons for the money so paid, and in the case of stocks or securities may be transferred or de- posited into or in the names of the treasurer and registrars of such Court, in trust to attend the orders of the Court, and the certificate of the proper officer of the transfer or deposit of such stocks or securfties shall be a, sufficient discharge to such persons for the stocks or securities so transferred or deposited ; provided that where there is not a treasurer a person shall be nominated by rule of practice to whom the transfer or deposit in conjunction with the registrar may be made. Extension of Powers given iy 12 ^- 13 Tict. o. 74, to Court of Chancery to County Cowrts. 25. For the purposes of the last section all the powers and au- thorities given to the Court of Chancery by the Act passed in the session of Parliament holden in the twelfth and thirteenth years of the reign of her present Majesty, chapter seventy-four, " for the further relief of Trustees," shall be possessed and exer- cised by the County Courts, and any order made by virtue of such powers and authorities shall fully protect and indemnify all per- sons acting under or in pursuance of such order. 352 Appendix. POLICIES OF ASSURANCE. An Act to enable Assignees of Policies of Life Assurance to sue thereon in their own Names. 30 Sr 31 Vict. c. lU.— 20th August, 1867. WhbkbAs it is expedient to enatle assignees of policies of life assnrance to sue thereon in their own names : 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 : Assignees ofZife Policies may sue in their omn Names. 1. Any person or corporation now being or hereafter becoming entitled, by assignment or other derivatiTe title, to a policy of life assurance, and possessing at the time of action brought the right in equity to receive and the right to give an effectual discharge to the assurance company liable under snch policy for moneys thereby assured or secured, shall be at liberty to sue at law in the name of such person or corporation to recover such moneys. Defence or Reply on eq%Atable Grounds may he pleaded. 2. In any action on a policy of life assurance, a defence on equit- able grounds, or a reply to snch defence on similar grounds, may be respectively pleaded and relied upon in the same manner and to the same extent as in any other personal action. Notice of Assignment to he given. 3. No assignment made after the passing of this Act of a policy of life assurance shall confer on the assignee therein named, his executors, administrators or assigns, any right to sue for the amount of snch policy, or the moneys assured or secm'ed thereby, until a Policies of Assurance. 353 written notice of the date and purport of sucli assignment shall have been given to the assurance company liable under such policy at their principal place of business for the time being, or in case they have two or more principal places of business, then at some one of such principal places of business, either in England or Scotland or Ireland, and the date on which such notice shall be received shall regulate the priority of all claims under any assignment ; and a payment bona fide made in respect of any policy by any assurance company before the date on which such notice shall have been re- ceived shall be as valid against the assignee giving such notice as if this Act had not been passed. Principal Places of Business to ie specified on Policies. 4. Every assurance company shall, on every policy Issued by them after the thirtieth day of September, one thousand eight hundred and sixty-seven, specify their principal place or principal places of business at which notices of assignment may be given in pursuance of this Act. AssignTTient iy Bndorsemewt or separate Instrument. 5. Any such assignment may be made either by endorsement on the policy or by a separate instrument in the words or to the effect set forth in the Schedule hereto, such endorsement or separate in- strument being duly stamped. Notices of Assignment to he achnowledged. 6. Every assurance company to whom notice shall have been duly given of the assignment of any policy under which they are liable shall, upon the request in writing of any person by whom any such notice was given or signed, or of his executors or administrators, and upon payment in each case of a fee not exceeding five shillings, deliver an acknowledgment in writing under the hand of the manager, secretary, treasurer, or other principal officer of the as- surance company of their receipt of such notice ; and every such written acknowledgment, if signed by a person being de jure or de facto the manager, secretary, treasurer, or other principal officer of the assurance company whose acknowledgment the same pur- ports to he, shall be conclusive evidence as against such assurance 354 Appendix. company of their having duly received the notice to which such ac- kuovrledgment relates. Interpretation of Terms. 7. In the construction and for the purposes of this Act the ex- pression " Policy of Life Assurance," or "Policy," shall mean any instrument by which the payment of moneys, by or out of the funds of an assurance company, on the happening of any con- tingency depending on the duration of human life, is assured or secured ; and the expression " Assurance Company " shall mean and include every corporation, association, society, or company now or hereafter carrying on the business of assuring lives or survivorships, either alone or in conjunction with any other object or objects. JVbt to a/pply to Contracts under certain Acts. 8. Provided always, that this Act shall not apply to any policy of assurance granted or to be granted or to any contract for a pay- ment on death entered into or to be entered into in pursuance of the provisions of the Acts, sixteenth and seventeenth Victoria, chapter forty-five, and twenty-seventh and twenty-eighth Victoria, chapter forty-three, or either of those Acts, or to any engagement for pay- ment on death by any friendly society. Short ntle. 9. Por all purposes this Act may be cited as " The Policies of Assurance Act, 1867" (a). SCHEDTTLB. I A. B. of, ^'c, in consideration of, ^c, do hereby assign unto C. D. of, S^c, his executors, administrators and assigns, the [within] policy of assurance granted, Sj'c. [here describe the policy']. In witness, ^c. (a) This Act was considered in Scotiish A. A. Society v. Fuller, 2 Ir. Kep. Eq. 53. APPENDIX B. ORDERS AND RULES OF COURT. CoNSOL. Oedek XXXV. The business to be disposed of by the Master of tlie Eolls and the Vice-Chancellors, respectiTely, while sitting at Chanibers, shall comprise (inter alia) : — (1.) Applications for payment to any person of the dividends or interest of any stocks, funds or securities, standing to the credit of any cause or matter depending to the sepa- rate account of such person. (3.) Applications under the Teusteb Relief Acts in all cases where the trust fund does not exceed 300Z. cash or 300Z. stock, as the case may be. (4.) Applications under the TRUSTEE Acts, 1850 and 1852, in all cases where any decree or order shall have been made by the Court for the sale or conveyance of any lands or hereditaments, corporeal or incorporeal, whatever may be the estate or interest therein (a). TEUSTEE BELIEF ACT. CoNSOL. Oedek XLI. Contents of Affidavit. EuLE 1. Any trustee desiring to pay money, or transfer stock or securities into the name of the Acconntant-General of the Court of Chancery, under the stat. 10 & 11 Vict. c. 96, shall file an affidavit, (a) See Morgan, Ch. St. & Ord. (4th ed.) p. 543, et seq. For forms of proceed- ings, see " Forms to Daniell's Ch. Pr.," by Field and Bunn, pp. 1935—1947. 356 Appendix. entitled " In the Matter of the Act and of the Trust," and setting forth— I. His own name and address. II. The place where he is to be served with any petition or any no- tice of any proceedings or order of the Coxirt or of the judge in Chambers, relating to the trust fund. III. The amount of the money, stock or securities, which he pro- poses to pay or transfer into, or deposit, transfer to, or pay into Court, to the credit of the trust. IV. A short description of the trust, and of the instrument cre- ating it. V. The names of the parties interested in or entitled to the fund, to the best of the knowledge and belief of the trustee. VI. The submission of the trustee to answer all such inquiries relating to the application of the money, stock or securi- ties, transferred, paid in or deposited under the Act, aa the Court or the judge in Chambers may think proper to make or direct Payment of the Mind into Court. EuLB 2. The Accountant-General, on production of an office copy of the affidavit, shall give the necessary directions for pay- ment, transfer or deposit, and place the money, stock or securities, to the account of the particular trust ; and such payment, transfer or deposit, shall be certified in the usual manner. Investment, ^c. 3. Provides for the investment and accumulation of the fund. Notiee to the Parties interested. 4. The trustee having made the payment, transfer or deposit, shall forthwith give notice thereof to the several persons named in his affidavit, as interested in, or entitled to the fund. Applications to the Court respecting tlie Fund. 5. Such persons, or any of them, or the trustee, may apply by petition, or in cases under 300Z. by summons, as occasion may re- quire, respecting the investment, payment out, or distribution of the fund, or of the dividends or interest thereof. Orders and Rules of Court. 357 Service on the Trustee. 6. The trustee shall he served with notice of any application made to the Court or the judge, respecting the fund, or the divi- dends or interest thereof, by any party interested therein, or enti- tled thereto. Service on all Parties interested. 7. The persons interested in, or entitled to the fund, shall be served with notice of any application made by the trustee to the Court or the judge, respecting the fund in Court, or the interest or dividends thereof. Residence of Petitioner. 8. No petition shall be set down to be heard and no summons shall be sealed, until the petitioner or applicant has first named in his petition or summons a place where he may be served with any petition, or with notice of any proceeding or order of the Court, re- lating to the trust fund. Title of Petitions and Affidavits. 9. Petitions presented, summonses issued, and aflidavits filed, under the said Act, shall be entitled " In the Matter of the said Act (10 & 11 Vict. c. 96), and in the Matter of the particular Trust." II. Proceedings under the Charitable Trusts Act, 16 & 17 Vict. c. 137. 10. Any application to a judge in Chambers under the Charitable Trusts Act, 1853, s. 28, shall be made by summons, and such sum- mons may be in the form set out in Sched. K, No. 1, or as near thereto, as the nature of the case may permit. 11, 12 and 13 relate to fees, costs and appeal ; and will be found in Morgan, Ch. St. (4th ed.), 598. III. Proceedings under the Settled Estates Act. The Enles will be found in Morgan, Ch. St., as above. 358 Appendix. INVESTMENTS^LOED ST. LEONARDS' ACT. Oedee of Couet, 1st Feb. 1861. As to Investment of Sums of Money in pursuance of Stat. 23 ^ 24 Vict. c. 38. 1. Cash under the control of the Court may be invested in Bank Stock (a), East India Stock (J), Exchequer BUls, and 21. Ws. per Cent. Annuities, and upon mortgage of freehold and copyhold es- tates respectively in England and Wales ; as well as in Consolidated 31. per Cent. Annuities, Keduced Bl. per Cent. Annuities, and Nev^ SI. per Cent. Annuities. 2. Every petition for the purpose of the conversion of any SI. per Cent. Bank Annuities into any other of the stocks, funds or secu- rities, hereinbefore mentioned, shall be served upon the trustees, if any, of such Bank 31. per Cent. Annuities, and upon such other persons, if any, as the Court shall think fit (c). THE RATE OF INTEREST. The Court rate of interest is fixed at four per cent, by Cons. Ord. XLII., Rules 9, 10. See Morgan Ch. St. & O. (4th ed.), p. 612. In Ireland the Court rate of interest has lately been fixed by the following Gen. Order of 1867 :— No. 211. The Court rate of interest shall be deemed to be and be calculated at four per cent., save with respect to the balances due by receivers, guardians, sequestrators, executors, administrators, and trustees : and the Court rate of interest as to such balances shall be calculated sAjive per cent. (a) An order ol Lord Eldon (frequently renewed), which dii-ected payment of part only of tlie large dividend arising from bank stock, and re-investment of the balance, is now regarded as obsolete. See Morgan, Ch. St. (3rd ed.) 334. As regards future orders to pay dividends, the whole dividend on bank stock wiU be di-awn, under order of 16th August, 1S61, Morgan (4th ed.), p. 630. (6) For the meaning of "East India Stock" see the Act of 1867, which will be found p. 349. (c) For the forms of proceedings under the Trustee Acts and Trustee Relief Acts, see '* Forms to Daniell's Ch. Practice," by Field and Dunn, pp. 1935 — 1947. Orders and Rules of Court. 359 EQUITY PEOCEDUEE. An Act to amend the Practice and course of Proceeding in the High Court of Chancery. 15 Sf 16 Vict. c. m.—lst July, 1852. Sect. 42, Rule 9. In all suits concerning real or personal estate which is rested in trustees under a will, settlement or otherwise, such trustees shall represent the persons beneficially interested under the trust, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit ; but the Court may upon consideration of the matter on the hearing, if it shall so think fit, order such persons or any of them to be made parties. [A similar rule appears in the Irish Chancery Act, 30 & 31 Vict. c. 44, s. 66, Rule 10.] SPECIAL CASE UNDEE SIE G. TUENEE'S ACT. An Act to diminish the Delay and Expense of Proceed- ings in the High Court of Chancery in England. 13 ^ 14 Vict. c. 35.— 15th July, 1850. Sect. 15. And be it enacted, that every executor, administrator, trustee or other person making any payment or doing any act in conformity with the declaration contained in any decree made upon a special case, shall in all respects be as fully and effectually pro- tected and indemnified by such declaration as if such payment had been made or act done under or in pursuance of the express order of the said Court made in a suit between the same parties instituted by bill, save only as to any rights or claims of any person in re- spect of matters not determined by such declaration. [A similar clause appears in the Irish Chancery Act, 30 & 31 Vict. ^. 44, s. 125.] 360 Appendix. TRUSTEE RELIEF ACT (IRELAND). Ordeb of the Codbt of Chancery in Ireland of October 9th, 1848. Contents of Affidavit. 1. Any trustee desiring to pay money, or transfer stock or secu- rities into the name of the Accountant-General of the Court of Chancery, under the said Act, is to file an affidavit, entitled in the matter of the Act and of the Trust, and setting forth — I. His own name and address. II. The place where he is to be served with any petition, or any notice of any proceeding or order of the Court relating to the trust fund. III. The amount of stock, securities, or money which he proposes to deposit or transfer, or to pay into Court, to the credit of the trust. IV. A short description of the trust, and of the instrument cre- ating it. V. The names of the parties interested in or entitled to the fund, to the best of the knowledge and belief of the trustee. VI. The submission of the trustee to answer all such inquiries relating to the application of the stocks, securities or money transferred, deposited or paid in, under the Act, as the Court may think proper to make or direct. Side-bar Rule. 2. The party filing such affidavit, on production of an attested copy thereof, is to be at liberty to enter a side-bar rule to lodge or invest the money, stock or security specified in such affidavit, in the Sank of Ireland, with the privity of the Accountant-General, to the account of the particular trust. Lodging tlie Money. 3. The Accountant-General, on production of an office copy of the affidavit and rule, is to give the necessary directions for trans- fer, deposit or payment, and to place the stock, securities or money to the account of the particular trust ; and such transfer, deposit or payment is to be certified in the usual manner. Orders {Ireland). 361 Notice to Cestuipw Trust. i. The trustee having made the payment, transfer or deposit, is forthwith to give notice thereof to the several persons named in his affidavit, as interested in, or entitled to the fund. Paying out of Fund. 5. Such persons, or any of them, or the trustee, may apply hy petition, as occasion may require, respecting the investment, pay- ment out, or distribution of the fund, or of the dividends or interest thereof. Notice to the Trustee. 6. The trustee is to be served with notice of any application made to the Court respecting the fund, or the dividends or interest thereof, by any party interested therein, or entitled thereto. Notice to all Parties interested. 7. The parties interested in, or entitled to the fund, are to be served with notice of any application made to the Court by the trustee, respecting the fund in Court, or the interest or dividends thereof. Residence of Petitioner. 8. No petition is to be set down to be heard, until the petitioner has first named a place where he may be served with any petition, or notice of any proceeding or order of the Court, relating to the trust fund. Title of Affidavit. 9. Petitions presented, and affidavits filed, and rules entered, under the said Act, are to be entitled " In the Matter of the said Act (H & 12 Vict. c. 68), and in the Matter of the particular Trust." 362 Appendix. INVESTMENTS— LOED ST. LEONAEDS' ACT. The following is the order of the Irish Court of Chancery, made 24th May, 1861 :— 1. Cash, under the control of the Court, may be invested in Bank of Ireland Stock, and upon mortgage of freehold and copyhold (a) estates, respectively, in Ireland, as well as in Government New SI. per Cent. Stock, and Consolidated 31. per Cent. Stock. 2. Every petition for the purpose of the conversion of any Go- vernment New 3Z. per Cent. Stock, into any other of the stocks, funds or securities, hereinbefore mentioned, shall be served upon the trustees of any of such 31. per Cent. Stock, and upon such other persons as the Court shall think fit (J). TEUSTEE ACT (lEELAND). [In order that the Court may be fully informed, and that a reference to chambers may be unnecessary, practitioners should be careful in their petitions and affidavits to follow the directions of May, 1853, which, although originally designed for statements of facts under the old practice, are, with the alterations of a few words, equally applicable to the new practice. In re Crane, Ir. L. Times, 1868, p. 226, V.-C] Statements required for Appointment of new Trustee, Orders of May, 1853. To be embodied in the Petition and Affidavit: — (1). A precise statement of the beneficial interest of the party by whom, or on whose behalf (in case of disability) the application is made. (2). In setting forth the instrument creating the trusts, a brief but distinct specification of all the trust funds and pro- (a) There are, in fact, no copyhold estates in Ireland. (6) See pp. 123-12G, anU. Orders {Ireland). 363 perty comprised, and of the several trusts created, dis- tinguishing such of the trusts (if any) as have ceased or been determined, and such as are subsisting. (3). Whether all the trust funds and property are still existing and available, and the present circumstances, and date of investment, of the funds. (4). If any portion of them should not be existing or available, when, how and by whose act or default (if any) they have been lost. (5). The names, descriptions, and places of abode of the several persons beneficially interested, and whether any and which of them are infants, lunatics, or under any other, and what incapacity or disability. (6). Whether all the persons interested have been applied to, and concur in the appointment of the proposed trustee or trustees ; and if not, why not ? (7). The written consent of any who shall have concurred should be procured, and stated to be in their hand-writ- ing, or signed by them, as the case may be. (8). The name, addition and full address of each trustee, or representative of a deceased trustee, in whose stead a new trustee is sought to be appointed ; and whether he has executed the trust deed (if any), or ever accepted, or acted in the trust. (9). In the case of an existing trustee refusing or being nn- wilUng to act, the reason or reasons for such refusal or unwillingness, with apositive allegation that the applicant knows not, and has not been informed and does not be- lieve, that such trustee ever assigned or had any other cause or reason for not acting or continuing to act, as the case may be, save as therein set forth. (10). When a trustee is sought to be removed on the ground of being out of the jurisdiction, at what time he left the jurisdiction, where (if known) he is at present residing, and whether such residence is permanent or temporary (if not known), and what inquiries have been made to discover his place of abode. (11). The name, addition and address in full, and profession e2 364 Appendix. or occupation of each person proposed as a trustee, and that he is solvent, and in all other respects a fit, proper and unexceptionable person to be appointed trustee. (12). A positive statement that the proposed appointment is expedient and necessary, and is required tona fide and solely for the benefit of all persons now or hereafter to become interested in the trust property, and without any collusion, fraud, understanding, or agreement that any act or thing shall be done, or omitted, in any manner in- consistent with the due execution of the trusts, or any of them. ' (13). That no other suit, proceeding or application of any kind is pending, or has been instituted or made, in any Court, or to any judge, for the appointment of a trustee or trustees in the place of the person sought to be removed, or deceased (as the case may be). (14). All matters within the applicant's knowledge, shall be stated positively, and other matters shall be stated ex- pressly from information and belief, and verified by affidavit. In Ireland, affidavits must now be prepared in conformity with Sect. 104 of the Chancery Act of 1867, and Nos. 152, 153, 154 and 165, of the General Orders of October, 1867. Forms of Petitions, &c., will be found in "Keilly's Summary Petitions." APPENDIX C. PRECEDENTS. No. 1. — Power to appoint nem Trustees. 2. — Trustee's Indemnity Clause. 3. — Trustee's Receipt Clause in a Will. i. — Power to appoint new Trustees of a Will. 5. — Trustee's Indemnity Clause in a Will. 6. — Trustee's Reiiniursement Clause. 1. — Appointment of new Trustees of a Will of Real and Personal Estate. ^.—Appointment of new Trustees of a Marriage Settle- ment (to he endorsed). 9. — Clause supplemental to new Statutory Provisions, spe- cifying how new Trustees to he appointed and giving special Indemnity. 10. — Deed of Disclaimer. No. 1. POWEE TO APPOINT NEW TEITSTBES (a). Provided always and it is hereby agreed and declared by and between tbe said parties hereto, that if the said trustees hereby con- stituted or any or either of them, or any future trustee or trustees to be appointed as hereinafter mentioned, shall happen to die or shall go to reside abroad, or shall be desirous of being discharged, (a) This can hardly be considered as necessary, as Lord Cranworth's Act, 23 & 24 Vict, c. 145, imports a similar clause into newly executed deeds, see p. 337, ante. 366 Appendix. or shall decline or become incapable to act in the trusts or powers herein contained, before the same shall be fully performed or other- wise satisfied, then, and in every such case, it shall be lawful for the said A. B. and C. D. during their joint lives, and after the decease of either of them for the survivor of them, and after the decease of such survivor for the surviving or continuing trustees or trustee for the time being of these presents, or the acting executors or admi- nistrators of the last surviving or continuing trustee (and for this purpose a retiring trustee shall, if willing to act in the execution of this power, be considered a continuing trustee), by any deed or deeds, instrument or instruments in writing, to substitute and appoint any other person or persons to be a trustee or trustees in lieu of the trustee or trustees so dying, going to reside abroad, desiring to be discharged, or declining or becoming incapable to act as aforesaid ; and upon every or any such appointment the number of trustees may be augmented or diminished. And that when any new trustee or trustees shall have been appointed as aforesaid, all the said trust estates, moneys, funds, and securities which shall be then vested in the trustees or trustee for the time being, or in the heirs, executors, or administrators of the last surviving or continuing trustee, shall, if, and so far as the nature of the property and other circumstances shall require or admit, with all convenient speed be conveyed, as- signed, transferred and paid, so as effectually to vest the same in the surviving or continuing trustees or trustee, and such new or other trustee or trustees ; or if there shall be no surviving or con- tinuing trustee, then in such new trustees or trustee only ; upon the same trusts as are hereinbefore declared concerning the same, or such of the same trusts as shall be subsisting or capable of taking efEect. And it is heeebt agreed aud declAEED, that every such new trustee shall, as well before as after such transfer of the trust property, in all things act and assist in the management and execu- tion of the trusts and powers to which he shall be so appointed, as effectually and with the same powers, authorities, and discretion, as if he had been originally, by these presents, nominated a trustee for the purposes aforesaid. Precedents. 367 No. 2. Teustbb's Indemnity Clause (a). Provided also, and it is hereby agreed and declared by and between the said parties hereto, that the trustees or trustee for the time being of these presents shall be chargeable, respectively, only for such moneys, stocks, funds, and securities as they shall actually receive, notwithstanding their respectively signing any receipt for the sake of conformity, and shall not be answerable or accountable the one for the other or others of them, or for any banker, broker, or other person with whom the said trust moneys, or any part thereof, may be lodged for safe custody, or for the insufficiency or deficiency of any stocks, funds, or securities wherein the same may be invested in pursuance of these presents, nor for dispensing, wholly or in part, with the production or investigation of the lessor's title on lending money on any leasehold security, nor for any defect in title in any hereditaments or premises, on the security whereof the said trust moneys, or any part thereof, may be invested [or which may be purchased under the power for that purpose herein- before contained], nor for any other loss, unless the same shall happen through their own wilful default respectively. No. 3. Teustbe's Receipt Clause in a Will. (^STiort Form.) And I hereby declare that the receipt in writing of the trustees or trustee for the time being, acting in the execution of any of the trusts hereof, for the purchase-money of property sold, or for any moneys, funds, shares, or securities, paid or transferred to them or him in pursuance hereof, or of any of the trusts hereof, shall effectually discharge the purchaser or purchasers, or other the per- son or persons paying or transferring the same, therefrom, and from (a) This clause is of little, if any, real value ; altliough usually inserted in trust deeds. It does not protect one trustee against the consequences of a breach of trust committed by his co-trustee ; and when no breach of trust is committed, the trustee is liable for his own acts and receipts only. This clause is now imported into instruments by the recent Acts. See p. 828 of the text. 368 Appendix. being concerned to see to the application, or being answerable for the non-application or misapplication thereof. No. 4. Power to appoint new Trustees in a Will. {Short Form.') And I HEREBY DECLARE that if the said trustees hereby appointed, or any of them, shall die in my lifetime, or if they or any of them, or any trustee or trustees to be appointed as hereinafter is provided, shall die, or desire to be discharged, or refuse or become incapable to act, then and so often the said trustees or trustee (and for the purpose any retiring trustee shall be considered a trustee), may appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying or desiring to be dis- charged, or refusing or becoming incapable to act ; AND upon everr such appointment, the said trust premises shall be so transferred, that the same may become vested in the new trustee or trustees, jointly with the surviving or continuing trustees or trustee, or solely, as the case may require ; and every such new trustee shall (both be- fore and after the said trust premises shall have become so vested) have the same powers, authorities, and discretion as if he had been hereby originally appointed a trustee (a). No. 5. Trustee's Indemnity Clause in a Will (V). {Short Form.') And I declare that the trustees or trustee for the time being, of this my will, shall be chargeable only with such moneys as they or he shall actually receive, and shall not be answerable the one for the other of them, nor for any banker, broker, or other person in whose (a) See note to Precedent No. 2. (&) See note to Precedent No. 1. Precedents. 369 hands any of the trust moneys shall be placed, nor for the insuffi- ciency or deficiency of any stocks, funds, shares, or securities, nor otherwise for inroluntary losses. No. 6. Tetjstee's Ebimbussbment Clause («). And that the said trustees or trustee for the time heing, may reim- burse themselves or himself out of the moneys which shall come to their or his hands under the trusts aforesaid, all expenses to be in- curred in or about the execution of the aforesaid trusts. No. 7. Appointment op new Tetjstees Of a Will of real and personal Estate. This Indenture, made, &c., between E. F. and G. H. ^surviving trustees'] of the first part, and L. M. [^nem trustee] of the second part : Wheeeas A. B. late of &c. duly made and executed his will, dated the day of , and thereby, after giving divers specific legacies, devised aU his real estate unto the said E. F., and Q. H., and I. K., their heirs and assigns, upon trusts and with powers thereby declared of the same ; and bequeathed all his per- sonal estate (except chattels real included in the said devise of real estate, and except what he thereby otherwise disposed of) unto the said E. F., G. H., and I. K., their executors, administrators, and assigns, upon trusts and with powers thereby declared of the same ; and devised all the freehold hereditaments vested in him upon mort- gage unto the said E. F., G. H., and I. K., their heirs and assigns, subject to the equity of redemption subsisting therein respectively; and appointed the said E. F., G. H., and I. K. executors of his said will ; and declared that in case the said trustees, &c., [^recite the power to appoint new trustees] (i). And wheeeas the said (a) This clause, although often inserted, is unnecessary, as eveiy trustee is en- titled to repayment of the expenses incident to the fulfilment of the trust, without any special direction ; and his right is declared by statute. See p. 266, ante. (6) The terms of the power must be strictly followed. e5 370 Appendix. A. B. died, -without having revoked or altered his said will, and the same was proved by his said executors in the Court of , on the day of ; And whereas the' said I. K. died in the month of last : Now this Indentuee WITNESSETH, that they, the said E. F. and G. H., do hereby, in exercise of the aforesaid power, and all other powers enabling them in this behalf, appoint the said L. M. to be a trustee of the said will in the place of the said I. K. ; And this Indenture also witnesseth, that in obedience to the aforesaid direction in this behalf, they, the said E. F. and G. H., do hereby grant imto the said L. M., and his heirs, all the said real estate and premises by the said will of the said A. B. devised unto the said E. F., G. H., and I. K., their heirs and assigns, upon trust as aforesaid, with the rights, easements, and appurtenances, and all the estate and interest of them, the said E. F. and G. H. in the premises ; to hold the said premises unto the said L. M. and his heirs TO the rsE of the said E. F., G. H., and L. M., their heirs and assigns, UPON THE TRUSTS and with the powers upon and with which the same ought to be held by virtue of the said wiU. And this Indenture also witnesseth that, in obedience to the aforesaid direction in this behalf, they, the said E. F. and G. H., do hereby assign unto the said E. F., G. H., and L. M. their executors, administrators, and assigns, all the said per- sonal estate of the said A. B., by the said will bequeathed unto the said E. P., G. H., and I. K., their executors, administrators, and assigns, and now vested in the said E. F. and G. H. : and all the estate and interest of them, the said E. F. and G. H., in the pre- mises, to hold the said premises unto the said E. F., G. H., and L. M., their executors, administrators, and assigns, UPON trust forthwith to assign the same unto the said E. F., G. H., and L. M., their executors, administrators, and assigns, upon the trusts and with the powers upon and with which the same ought to be held by virtue of the said will : And this Indenture also WITNESSETH, that, in obedience to the aforesaid direction in this behalf, they, the said E. F. and G. H. do hereby grant unto the said L. M. and his heirs, all the freehold hereditaments which were vested in the said testator at his death upon mortgage, with their rights, easements, and appurtenances, TO hold the said premises unto the said L. M. and his heirs TO THE USE of the said E. F., G. H., and L. M., their Precedents. 371 heirs and assigns, subject to tlie equity of redemption now subsist- ing therein respectively : And each of them, the said E. F. and G. H., so far as relates to his ovm acts, doth hereby, for himself, his heirs, executors, and administrators, covenant with the said L. M., his heirs, executors, administrators, and assigns respectively, that they, the said E. E. and G-. H., respectively, have not done, or knowingly suffered, anything whereby the said premises, hereby granted and assigned respectively, or any part thereof, are, is, or can be impeached, incumbered, or affected in title or otherwise. In WITNESS, &c. (a). No. 8. Appointment op new Teustees op a Maeeiage Settlement. (lb ie endorsed on the Settlement.') This Indbntueb, made, &c., between the within named A. B. and C. B., his wife (at the date and execution of the vrithin written Indenture, the within named C. D., spinster) [Imsband and wife, donees of the power (J)] of the first part, the within named G. H. {retiring trustee'] of the second part, and I. K., of &c., and L. M., of &c. \new trustees'] of the third part : WHEREAS the marriage in the within written Indenture said to be intended, was solemnized shortly after the date thereof : And wheeeas the within named E. F. is dead, and the said G. H. desires to be discharged from the trusts of the within written Indenture : Now this Indentuee WITNESSETH that they, the said A. B. and C. B., do hereby, in exercise of the power in that behalf in the within written Indenture contained, appoint the said I. K. and L. M., respectively, to be trustees of the within written Indenture in the place of the said E. F. and G. H., respectively : And it is heeebt declared that the said I. K. and L. M., their executors, administrators, and assigns, (dl It was formerly necessary to assign by one deed to a provisional trustee, who ty a second deed reassigned. But sect. 21 ol stot. 22 & 23 Vict. c. 36, enables any person to assign personal property directhj to himself and anotlier or other persom. lb) n thepowerof making a new appointment be not conferred upon them, the form will be altered accordingly ; in executing the power, its terms must be strictly followed. 372 Appendix. shall hold the within mentioned sum of £ , Bank Annuities, which is intended to be transferred into their names immediately after the execution of these presents (a), and the annual income thereof, upon the trusts, and subject to the powers, upon and sub- ject to which the same ought to be held by virtue of the within written Indenture (J). No. 9. Clause specifying by whom new Trustees are to he appointed and giving special Indemnity, as supplemental to Statutory Provisions (c). And it is hereby agreed and declared that the power of appoint- ing a new trustee or trustees of these presents, in the place of any trustee or trustees who shall die, or desire to be discharged, or refuse or become- unfit or incapable to act, shall be exercisable by the said [ ] and [ J during their joint lives, and by the survivor of them during the life of such survivor, and after the death of such survivor by the surviving or continuing trustees or trustee for the time being, or the acting executors or executor, ad- ministrators or administrator, of the last surviving and continuing trustee or by the last retiring trustees or trustee ; and upon every or any such appointment the number of trustees may be augmented or reduced ; and (in addition to the ordinary indemnity and right to reimbursement by law given to trustees) the trustees for the time being of these presents shall be at liberty to dispense, wholly or partially, with the investigation or production of the lessor's title on lending money on leasehold securities, or otherwise to lend on any security with less than a marketable title, and shall not be answerable for any loss thereby occasioned. (a) Care must be taken that the transfer is duly made. See p. 112. (6) If there have been any dealings with the trust property since the date of tlie settlement, they must be stated, so as to show the funds now subject to the settlement. (c) Suggested, 3 Davidson's Precedents C2nd ed.), p. 565, to meet the case where the receipt clause and other clauses not actually necessary are omitted, and it is only desired to specify by whom new trustees are to be be appointed, and to sup- plement the statutory provisions as to indemnity. Precedents. 373 No. 10. Deed op Disclaimer, By a person named as Trustee and ExBCtrTOB of a Will, and Guardian of the Testator's Children (a). To All to whom these presents shall come, E. F., of &c., sendeth greeting : Whereas [Sere recite the will of the testator, stating briefly tlie devises, and more particularly the devise of the estate, SfC, in trust, also the appointment of the executors and guardians of the testator's children'] -. And whereas the said A. B. died, on the day of without having in anywise revoked or altered his said will, and the same was proved by [the otJier executor] on the day of in the Court of , the said E. P. having first duly renounced probate of the same ; And whereas the said B. F. has in no wise administered to the estate of the said testator, and has in no wise acted or inter- fered in the execution of the trusts of the said will or any of them, or as guardian of the children of the said testator, and has declined to administer to the estate of the said testator, or to act or interfere in the execution of the trusts of the said will, or as guardian of the said children : Now THESE PRESENTS WITNESS that he, the said E. F., hath renounced and disclaimed, and by these presents doth renounce and disclaim all and singular the said freehold and leasehold messuages [if-c] and all and singular other the real and personal estate and effects whatsoever given, devised, or bequeathed by the said will, and all devises, bequests, and legacies, expressed to be made or given to him, whether alone or jointly with any other person or persons by the said will, and also the said offices of trustee and executor of the said will, and guardian of the children of the said testator, and all and singular trusts, powers, and authorities whatsoever under the said will. In witness, &c. (a) It has been before stated (Chapter I.) that a trustee who has once accepted or acted in the trust is not at hberty to disclaim ; and that a person who resolves not to accept the office should forthwith evidence his refusal by a deed of dis- claimer. The disclaimer should not affect to convey the estate, for it is doubtful whether such conveyance would not per se evidence an acceptance of the trust, 5 Martin's •Conv. by Davidson, 607, 610. INDEX. ABSENCE: of trustee from the country, 36. if temporary, does not incapacitate him from acting, 36. ACCEPTANCE OF TRUST : [See Disclaimer.] should be by execution of the trust deed, 14. may be shown by the trustee acting in the trust, 15. may be evidenced by interference, 15. may be presumed from length of time, 15. under some circumstances may disentitle the trustee to costs, 273. ACCOUNTS OF THE TRUSTEE: may include disbursements, 264 ; and costs paid, 270. should be regularly kept, 286, n. must be produced to cesiuique trust, if required, 100, 277. [5ee Advances ; Lien.] ACCRETIONS : of charity fund, application of, 254. ACQUIESCENCE: of cesiuique trust in breach of trust, 147. what conduct amounts to, 149. meaning of the word stated, 151. "ACTING TRUSTEE:" not recognized by the law, 72. ADMINISTRATOR: [See Executor.] ADVICE : of an equity judge may now be obtained without suit, under 22 & 23 Vict. c. 35.. 260. of the charity commissioners may be obtained, 238. of counsel, how far a protection to the trustee, 142, 276, n. ADVOWSON : nomination to, must be by cestuique trust, 94. 376 Index. AFFIDAVIT : on lodging trust money under T. R. Act, 166, 168. AGENTS : may be employed by trustee where necessary, 106. ALIEN : no trust of real property allowed for, 8. may be a trustee of personalty only, 12. ALLOWANCE: none made for time and trouble of trustee, 93. unless specially stipulated for before trust be accepted, 94. for costs, expenses, and outgoings, 264. trust deed is now deemed to contain a clause giving tlie trustee his expenses (22 & 23 Vict. >;. 35), 265. APPOINTMENT OF NEW TRUSTEES: under a power contained in the settlement, 26. clauses enabling parties to appoint, in Lord Cranworth's Act, 28, 335. disposition of the court to uphold, 30. of more than the original number, 31. by a retiring trustee, 33. under Lord Cranworth's Act, 29. should not be made pendente lite, 37. by the Court of Chancery, under its old jurisdiction, 40. under the Trustee Act, 47, et seq. by the County Court, 71, 344. of religious congregations under Act of 1850. .250. of relatives, and of persons beneficially interested, 14. [iJce Power.] APPORTIONMENT: of profits on trust money, 99. of costs of suit against trustee, 271. ASSIGNEES : [See Bankruptcy.] ASSIGNMENT : [See Conveyance ; Lease.] ASSURANCE : policy of, duty of the trustee as regards, 140. [See Premium.] ATTORNEY : [See Solicitor.] ATTORNEY-GENERAL : a necessary party to any proceeding under Romilly's Act, 237. and to any prosecution of a fraudulent trustee, 110. AUCTION: [See Sale.] Index. 377 BANKER: loss through failure of, 76. lodgment of trust funds with, 77 — 80. BANK OF ENGLAND OR IRELAND: admits of no more than four trustees of stock, 12. must recognize vesting orders under Trustee Acts, 54. bank stock may now be purchased with trust money, 122, 126. BANKRUPTCY: of trustee, effect of, 2i. may render him unfit for the office unless where certificate ob- tained, 25. assignee in, mixing private funds and trust funds, 80. assignees in, of husband of cestuique trust, entitled to a share of trust fund, 143. BENEFICIARY: [See Cestuique Trust.] BILLS OF EXCHANGE: may be used for transmission of trust money, 78. BOARD OF CHARITY COMMISSIONERS : [See Charitable Trusts.] BREACH OF TRUST: when it constitutes a simple contract, and when a specialty debt, 15, 16. may subject a trustee to be tried in a criminal court (under stat. 24 & 25 Vict. c. 96), 110. through omission to have stock transferred, 112, arising from delegation of duties, 72. from omission to prove in bankruptcy, 79. prevention of, by active inquiries on the part of co- trustee, 88. duty of trustee to inquire into conduct of co-trustee, 88. suits in respect of, may be by co-trustee or cestuique trust, 90. suits in respect of, may be instituted where the loss occurred after death of trustee, 89, n. acquiescence of cestuique trust in, 147. release of, should be obtained from cestuique trust, 154. may be incurred by devising the trust estate, 231. [See Acquiescence ; Release; Suit.] CALLING IN THE TRUST FUND: [See Duties j Invest- ment.] duty of trustee to call in debts, &c., of testator, 114. not bound to call in within twelve months after testator'.s death, 115. may leave trust money outstanding on good real security, but should call in if the security doubtful, 117. 378 Index. CATHOLIC : \_See Roman Catholic] CESTUIQUE TRUST: should be informed of a new appointment, 37. concurring in a breach of trust, 147. when barred by lapse of time, 152. may claim profit made by the use of bis fund, 96, 98. when a married woman, 143. has the right of presentation to a living, 95. right to conveyance or assignment, 156, 227. has an option of setting aside sale to trustee, 210. his right to have stock replaced, 133. suit by, where there has been a breach of trust, 90, 276, 278. may proceed in a Criminal Court against a defaulting trustee, 110. release or confirmation by, its requisites, 149, 152. CHAPEL: [S'ee Charitable Trusts.] CHARITABLE DONATIONS and bequests (Ireland), 258. CHARITABLE (Public or Religious) TRUSTS: peculiar rules of construction as to, 233. not limited, like private trusts, in their duration, 234. secret trusts, sometimes not binding on the donee, 234. when they can be enforced, 235. The " Mortmain " Acts, 235. common law as to, information, 236. Sir S. Romilly's Act, 237. acts relating to, since 1853.. 237, 238. powers of the Board of Charity Commissioners recently enlarged, 240. trustees of, can obtain advice and directions from the Board, 238. application for advice, form of, etc., 242, u. for Roman Catholic purposes, 242. for religious congregations, administration of, 243, 247. in the absence of written directions, 243. usage relied on in certain cases, 247. control of the trustee, defined by Lord Langdale, 245. the Dissenters' Chapels Act, 1844 (Peto's Act), 250. where doctrine, &o., defined, no change allowable, 248. removal of minister, 249. meetings of trustees, 250. appointment of new trustees under general jurisdiction, 251. appointment of new trustees under Charitable Trusts Act, 251, n., 258. eligibility of trustees of, 252. unanimity not required of trustees of, 253, school, trustees of, 253. Index. 379 CHARITABLE (Public or Religious) T^V?,TS— continued. grammar schools, special act affecting, 253. resolution of majority of trustees binding on minority, 253. enactment as to sales, etc., by majority of two-thirds of the trustees, ?41. sales of charity estates, 255. leases of chari y estates, 256. should not be to a trustee, 256. with improper covenants may subject trustee to costs, 282. powers of the Board as to sales and leases, 255, 256. in r eland, 2o8. official trustees of charities, 257. law affecling, in Ireland, 258. costs and expenses of trustees ordinarily allowed, 282. CHOSE IN ACTION : of testator must be recovered within twelve months, 114. is within the Trustee Act, 47. efiFect of a vesting order of, 54. of the wife, when recovered in Equity, 143, 144. CHURCH BUILDING ACTS, referred to, 244. COMMISSIONERS OF CHARITIES: [See Charitable Trusts.] COMPANIES AND ASSOCIATIONS : bound by orders under Trustee Acts, 54. COMPENSATION: for land, payable to trustees in certain cases, 218. COMPOUND INTEREST: formerly charged on trust money retained by trustee, 98. not approved of by Lord Brougham, 99. COMPOUNDING: of debts, by the trustee, 185, 186, n., 336. CONSIDERATION: not necessary to support a clearly created trust, 9, 10. CONSOLS: the fund always sanctioned by the Court, but other investments are legalized by recent acts, 122, et seq. CONTINGENT REMAINDERS: how affected by 8 & 9 Vict. c. 106. . 187. trustees to preserve, duties of, 187. CONTROL : of the trustee over trust estates, 185. in charity cases, 245. 380 Index. CONVERSION: of general residuary estate by trustee of a will, 114. of personalty bequeathed in succession, 131. CONVEYANCE : definition of, in the Trustee Act, 48. of the trust estate by trustee, 227, 229. should not be executed by disclaiming trustee, 1 8. to beneficial owner, when the trust is fulfilled, 155. trustee is not bound to covenant in, 229. by a trustee should be by one and not by several deeds, 229. of land to charitable uses must be in accordance with Statutes of Mortmain, 235. ' COPYHOLDS: within Statute of Frauds, 5. vesting order of, under Trustee Act, 54. are authorized securities under recent acts, 123. COSTS ; (1.) General costs of trustees : allowed as incident to the trust by rule of the Court, and now by statute, 264. may be disallowed where the conduct of the trustee has been vexatious, 273, 278. of a trustee retiring allowed as of course where his conduct is unimpeached, 42, 266. of employing a solicitor or agent allowed, 105, 106. of obtaining counsel's opinion allowed, 106. of his solicitor can be claimed against trustee alone, 266. taxation by the cestuique trust, 268. costs may be moderated, 267. costs of suit usually given to trustee at the hearing, 270. one set of costs allowed to joint trustees, 271. not always given against the trustee where a decree against him, 275. or where technical breach of trust unaccompanied by loss, 279. ordered to be paid by trustee only where his conduct is repre- hensible, 277, 280. paid by trustee may be included in his accounts, 264, 270. interest not allowed on costs paid, 285. lien of the trustee for, 285. in relation to charity trusts are ordinarily allowed, 282. (2.) Of trustees who are solicitors : costs out of pocket only allowed on taxation, 101. but full costs may be expressly stipulated for, 104. of solicitor of defending his partner, a trustee, 102. Index. 381 COSTS — conthtued. (3.) Under Trustee Act : allowed out of the trust estate, 268. unless misconduct of trustee disentitle him to costs, 269. (4.) Under Trustee Relief Ads : costs may be deducted on lodging the fund, 178. but not the costs of lodging a legacy, 178. the Court acts on its ordinary rules as to costs, giving the trustee all his costs, except where his conduct has been vexa- tious, 180, 274. the Court may award costs against the trustee, 274. COUNSEL : opinion of, may be taken by trustee whenever necessary, 106. unless in a clear case merely for his own satisfaction, 265. will not always protect him from costs, 142. must sign a "statement" for judicial advice under Lord St. Leonards' Act, 261. COUNTY COURTS: jurisdiction of, as to appointing trustees under Trustee Act, 71. trust moneys under £500 may be lodged in, 182. COVENANTS : by trustee will render him liable for specialty debt, 15. no equitable, as distinguished from legal, 16. for title cannot be required in conveyance by trustee, 229. in lease, liability of trustee to answer, 220. [See Conveyance.] CRIMINAL LAW: affecting trustees, 110. CUSTODY: of chattels in trust, 78, n. of trust funds generally, 76, 78. of a policy of assurance in trust, 140. of title deeds, 77, ". DEBENTURES : Mortgage on land (28 & 29 Vict. c. 78, s. 40), 343. DEBTS : must be called in expeditiously by trustee of a will, 114. compounding of, by trustees, 186, 336. trust for sale, for payment of, 204. charge of, will confer on trustees, by implication, the power of giving receipts, 205. [iSee Chose IN Action ; Receipts.] 382 Index. DECLARATION: of trust may be by parol, 5. of secret trust for charity, 231. DELEGATION: of trust not permitted, except in minor points where conveni- ence requires it, 7", 86. of minor duties to an agent, bailiff, or collector of rents allowed, 106. of custody of title deeds is permitted to one trustee, 77, n. DEVISE BY TRUSTEE: of his estates, when it passes his trust estates, 230. of trust estates may amount to a breach of trust, 231. DIRECTIONS OF AN EQUITY JUDGE: may be obtained summarily, without suit, 260. of charity commissioners, 238. DISCHARGE: under the Court, a protection from all claims, 155. as an insolvent, does not affect the trust property, 24. \_See Release.] DISCLAIMER: of trust should be evidenced by deed, 18. but not by deed of conveyance, 19. effect of deed of disclaimer, 19. after executing, the trustee is in position of a stranger, 19. precedent of deed of disclaimer, see Appendix. DISCRETIONARY POWERS: implying personal confidence, 20. exercisable by trustees appointed by the Court, 64, 338. must be exercised by all the trustees jointly, 80, 82. except in charitable trusts, where the majority may act, 253. exercise of, will not usually be controlled by the Court unless wantonly exercised, 83. DISTRINGAS: to prevent transfer of stock, 113. DIVIDENDS: [5eeST0ck.] DIVORCE COURT: orders of, may affect the beneficial interest, 145. Index. 383 DUTIES: of trustees of stock, transfer of stock, 112. of trustees of a will, reduction into possession, 114. calling in, and investing the trust property, 115. he is allowed twelve months for calling in money invested in shares, &c., 115. trustee not bound to call in real securities, unless the security be questionable, 117. duties as to distribution of the fund, 141. as to correcting conduct of a co- trustee, 88. inquiring into proper application of the fund by co- trustee, 90. in trusts for femes covertes, 1 43. duty of keeping alive judgments held on trust, 132. of seeing to the payment of premiums on insurances, 140. of trustees for charities, see Chapter VIII. notice to claimants on a fund paid in under T. R. Act, 171. of trustees of real estate, 183, et seq. of trustees of contingent remainders, 187. and powers of trustees for sale, 192. with regard to trusts created since August, 1860. . 196. duties under Succession Duty Act, 217. as regards conveyance of trust estate, 229. devise by will, 231. [&e Conversion i Investment; Trustee.] EJECTMENT: by trustee as legal owner, 183. EQUITY: trusts are cognizable only in, 7. will be enforced by, 8. appointment of new trustees in, 40. judge in, may give judicial advice to trustees without suit, 260. of married woman to a settlement, 143. rules of, affecting charities, 233. ESCHEAT: to the Crown, prevented where there is a trustee, 107. of estate held in trust prevented, 67. except so far as trustee is beneficially interested, 67. EXCHANGE : power of, what it will authorize, 194. does not authorize a partition, 195. [See Power.] EXECUTOR: difference between office of, and of trustee, as regards liability for joining in receipts, 87, n. 384 Judex. EXECUTOR— conHMucii. in the Indies, allowed a commission, but must renounce any legacy, 101. duty of, as to calling in, 115. custody of funds, 116. liability of, where the fund has depreciated, 134, et seq. may pay a legacy into court, under T. R. Act, but should not deduct costs of so doing, 165. can give valid discharges to bona fide purchasers, 203. liability of, to covenants in a lease, 220. on assigning, should obtain indemnity, 221. liability of, diminished by Lord St. Leonards' Act, as to rent and covenants in leases, 221. EXPENSES: of trustee properly incurred, will be repaid or allowed on pass- ing the accounts, 264. his right to them declared by statute C22 & 23 Vict c. 35, s. 31), 265. trustee's lien for, on the estate, 285. \_See Chapter X. — Costs and expenses of trustees.] FEME COVERTE: [Sec Married Woman.] FINES: on renewals, how to be raised, 223. apportionment of, 224. \_See Renewable Leaseholds.] FORFEITURE: of trust property, through the trustee's act, 67. [See Escheat.] FRAUDULENT TRUSTEES may now be punished (stat. 24 & 25 Vict. u. 96, s. 80), 110. FREEHOLDS : [5ee Disclaimer ; Renewable Leaseholds.] FUNDS: [&e Investment; Consols.] GENERAL ORDERS : authorizing investment in Bank stock, India stock and real securities, 123. For Orders in extenso, see Appendix. under Trustee Relief Acts, 167. as to issue of distringas on stock, 113. GOVERNMENT SECURITIES: lodgment of, in Court, under Trustee Relief Act, 169. investment of trust funds in, 122, et seq. Index. 385 GRAMMAR SCHOOL: special act affecting, 253. master of, not removable under Charitable Trusts Acts, 253. HEIR: of lands decreed to be sold, 55. trustee dying without, 50. under disability, legal estate vested in, 48. HONORARY : nature of the office of trustee, 93, et seq. HOUSES held in trust, repairs of, by trustee, 186. collection of rents arising from, 106. IMPROVEMENTS: allowed for, on estate purchased by trustee, and which he has to reconvey, 214. in mansion house, must only be of a necessary and substantial character, 186. INDEMNITY: clause of, implied in every trust deed (22 & 23 Vict. c. 35, s. 31), 74. to trustee acting on judicial advice, 260. in charity cases, 238. to trustee, on assigning a lease, 220, 221. INFANT should not be appointed a trustee, 12. estate vested in, maj' be conveyed under Trustee Act, 48. stock in the name of, may be transferred, 51. contingent right of, may be released, 48. rights of, whether extinguished by the Act, 56. maintenance and advancement of, 138. income of property held in trust for, is applicable towards his maintenance (stat. 23 & 24 Viet c. 145), 139. cestuique trust may nominate to a living, 185, n. trust for, may enable trustee to give discharges, 206. estate of, purchased by trustee, costs decreed against the trustee, 283. INFORMATION: [&e Suit.] INSOLVENCY: of trustee, renders him " unfit" for office, 36. does not affect his legal ownership of trust property, 24. INSURANCE : [See Policy ; Premium.] U. S 386 Index. INTEREST: charged on trust money retained or misapplied by trustee, 95, 133. rate of, 98. compound interest, 99. allowed on advances necessarily made, 106. but not on costs paid by the trustee, 283. rate of, in Ireland, 358. INVESTMENT: of trust money on personal security, not allowed, 120. power of so investing, strictly construed, 121. in 3 per cent, consols, formerly required, 122. loss from an unauthorized investment, 122. trustees should not lend on second mortgage, 131. or on judgments charged on land, 132. should be after full inquiry as to value, 129. on leaseholds and house property not recommended, 130. unless a long term at a nominal rent, 130. when directed in the funds, 133. on railway mortgages, 117, n. of trust money in Ireland, by general order of 1 861 . . 123. investments may now be made in Bank and East India Stock and on real securities, 122, et seq. and may be varied, in discretion of the Court (23 & 24 Vict. c. 145, s. 25), 126. [See Mortgage ; General Orders.] IRELAND: investment on mortgage of lands in, 127. rate of interest in, 358. general order as to investment of trust funds, 123. JUDGMENT: held in trust, must be kept alive by registry, 132. JUDICIAL ADVICE: to trustees, under Lord St. Leonards' Act, 260. statement for, must be signed by counsel, 261. JUS DISPONENDI : assignment to beneficiary, 155, 227. LACHES: [See Acquiescence.] may bar the right of cestuique trust, 149, 211. what conduct amounts to, 212. LANDS CLAUSES CONSOLIDATION ACT: authorizes nomination of trustees to receive a fund under £200, 218. Index. 387 LEASES : \_See Renewable Leaseholds.] should not be granted without authority, 255. of settled estates under the act, 186. liability to rent and covenants in, now limited by 22 & 23 Vict. c. 35.. 221. of charity lands, should be at full rents, 255. sanction of the Charity Commissioners for, 256. LEASEHOLDS: investment on, a breach of trust, 130. renewable in perpetuity are within 4 & 5 Will. 4, c. 29.. 128, n. renewable, duties with regard to, 221. duties of trustees of renewable leaseholds, defined by recent act, 225. terminable, must be disposed of, when, 134. liability of trustees for covenants, 219. assignment of, by trustees, 220. the liability in respect of rent and covenants, of executors, now limited by statute, 221. leaseholds are liable to succession duty, 217, n. [See Investment J Fines.] LEGACIES: [See Executor.] owner of land subject to, not a trustee, 164. may be paid in under Trustee Relief Acts, 165. without deduction for costs, 178. LIABILITY OF TRUSTEE: for loss of trust funds by a banker, agent, &c., 76. trustee not liable where trust funds have been lost in the ordi- nary course of business, 78. where power of attorney revoked at the time of payment under it, 146. to be convicted criminally for a fraudulent breach of trust, 110. [See Costs; Suit.] LIEN: of trustee of a policy of insurance, &c. for advances, 141. of trustee generally on the trust property, 285. cannot be enforced by his agent, 285, n. of parties claiming under the trustee, 286. LIMITATION, STATUTES OF: do not apply in express trusts, 92. analogy followed in constructive trusts, 92. LIVING: presentation to, must be by the cestuique trust, 94. S ^ 388 Index. LOSS OF TRUST FUNDS : visited on trustee, where there has been neglect on his part, 116, 122. indemnity clause is now presumed in every trust deed, 74. LUNATIC: trustee may be removed by the Court, &o., 48. or contingent riglit released, 49. commission may be directed concerning, 67, 68. property of, must be dealt with " in Lunacy," by the L. C, 48. MAINTENANCE : of infant, application of trust fund for, 138. such application now expressly authorized by Lord Cranworth's Act (23 & 24 Vict. c. 145), 139. MAJORITY of charity trustees may bind the minority, 253. MARRIAGE SETTLEMENT: imposes on the trustee an obligation to renew leases, 222. [5ee Duties; Settlement; Feme Coverte.J MARRIED WOMAN: not eligible for the office of trustee, 12. chattels of, pass to her husband, when, 143. her equity to a settlement out of moneys held in trust, 144, division of fund with her husband's assignees, 144. liability of separate estate of, in respect of breach of trust, 147, 148. MASTER of school: [5ee Charitable Trusts.] MINISTER: [See Charitable Trusts.] MORTGAGE: should not be called in unnecessarily, 117. should be called in, if the security be questionable, 118. on a lease for lives only, instance of, 130. on real securities in Ireland, 127. should be after inquiry as to value of security, 129. of leaseholds, &c., not recommended, 130. investment on second, should also be avoided, 131. trust money may now be invested in, under Lord St. Leonards' Act and general order of Court, 125, 127, et seq. MORTMAIN ACTS referred to, 235. NEW TRJjSTEES: [5ee Trustees; Duties.] power of appointing, 26. form of, 370, ei seq. Index. 389 NEW TRUSTEES— conMn«e(i. legal transfer of trust property to, 27, 38. Court may appoint more or fewer than the original number, but will not appoint one trustee to act alone, 31. should not be appointed penrfenie lite, 37. should ascertain that fund is actually transferred to them, 38. inherent power of Court of Chancery to appoint, 40. appointment of, under the Trustee Act, 43. under later Act (applying to trusts created since August, 1860), 28. under the Charitable Trusts Act, 239, 251, n. under Peto's Act, 250. general power of appointing, 58. powers of, (Trustee Act,) 62, 64. number of, in discretion of the Court, 31. NONCONFORMIST CHAPELS: [5ee Charitable Trusts ] NOTICE: as affecting purchaser for valuable consideration, 22. assignee of a new lease or renewal obtained by trustee, 227. to landlord before assigning a lease of no value, 220. to trustee, by purchaser of, or creditor on, the trust fund, 156, 157. of application to convert 3 per cents, into bank stock, &c„ must be served on trustees, 123. of meeting of trustees of charities, 250. NUMBER OF TRUSTEES : more than_/bttr not allowed, of stock, 12. three recommended in ordinary cases, 14. whether it may be increased on a new appointment, 31. appointed under Trustee Act, in the discretion of the Court, and sometimes different from the original number, 32. one trustee never appointed by the Court to act alone, 31. OFFICIAL TRUSTEE: of charities, to whom money may be paid, 257. as to private trusts desirable, 288. ORDER: {See Vesting Order; Investment; General Order.] PARTITION: whether authorized by power of sale and exchange, 194. not authorized by a power of sale, 195. S3 390 Index. PAYMENT: of trust funds into Court under Trustee Relief Acts, 160, et seq. moneys held in trust may be paid into Court, 164. unnecessarily will subject the trustee to costs, 164, n., 274. by personal representatives, 164. of purchase-money, where trustees cannot give discharges, 165. proceedings under the acts, 166 — 172. of premiums on policy held in trust, 140. of money under power of attorney, 145, 146. into County Court, of trust moneys under £500. .182. to official trustee in charity cases, 257. of money should be to the principal, not the agent, 145. [See Costs ; Investment; Sale.] PERSONAL SECURITY: [See Investment.] PETITION: for appointment of new trustees under the Trustee Act, 66. procedure by, not suited for all cases, 67. under Trustee Relief Acts, 171. service of, 172. Court will not adjudicate on breach of trust on petition under this act, 174. jurisdiction of the Court is founded on, 172. money cannot be paid out on motion without petition, 172. what questions may be decided on, 174. may be presented by the trustee, 176. for conversion of trust funds into bank stock, &c., under general order, 122, et seq. of RIGHT, the only remedy against the Crown, 12. [See Costs ; Suit.] POLICY OF ASSURANCE : must be kept up by trustee if he have funds available, 140. if there are no funds, he may advance premiums, and have a Hen^ 141. if necessary, he may sell or surrender the policy, 141. claims on, of persons claiming through the trustee, 286. POSSESSION: [See Calling in.] of trustee not adverse to his cestuique trust, 92. reduction into, of personal estate by trustee, 114. of the trust estate, when trustee is entitled, 183, 184. of chattels, title deeds, &c., 78. POWER OF APPOINTING NEW TRUSTEE: usual form of, 26. [See Appendix, pp. 369—372.] is deemed to exist in deeds executed since August, 1860. .28. Index. 391 POWER OF APPOINTING NEW TRUSTEE— coM«inMerf. must be adhered to in making an appointment, 27. sliould not be exercised pendente lite, 37. of charity trusts, 240, 250, 251. \_See Appointment ; New Trustees.] POWER OF ATTORNEY: payment bona fide to holder of, will protect the trustee though power be revoked, 116. POWERS: may be exercised by surviving trustees, unless they imply a personal confidence, 20. may be exercised by trustees appointed by the Court, 28, 29. exercise of discretionary, 63, 64. how far their exercise will be enforced, or controlled, 83. of sale, how they should be exercised, 189. of sale and exchange, do not authorize a partition, 195. of mortgage do not authorize a sale, 193, n. of giving discharges for purchase-money, 202, 204. enlarged (as to recently created trusts) by the acts of 1859 and I860.. 208. of trustees appointed under Trustee Acts, 64. of trustees of charities, 245. [5ee Duties; Leases; New Trustees; Receipts.] PREMIUM: on a policy held in trust, 140. if advanced by trustee, will give him a lien for the amount with interest, 141. PURCHASE: \_See Purchaser ; Trustee for Sale.] PURCHASER: for value without notice, may hold discharged of trust, 22, 227. when bound to see to the application of the money, 119, 201. [5ee Receipts ; Trustee for Sale.] REAL SECURITIES: trust money may now be invested in, under Lord St. Leonards' Act, and general orders, 122, et seq. [See Investment ; Mortgage.] RECEIPTS OF TRUSTEES : when signed merely for the sake of conformity, will not render the trustee accountable, 85. for purchase-money not, in general, valid discharges, 201. executors selling bona fide, can give discharges, 87, n. 392 Index. RECEIPTS OF TRUSTEES— con««Kerf. are (with regard to newly created trusts only ) made valid dis- charges by statute, 119. will be valid discharges : (1.) Where trust of a general character, as for payment of unascertained debts, 204'. (2.) Where immediate sale directed for the benefit of persons who cannot give receipts, 205. (3.) Where the application of the money requires exercise of discretion by trustee, 206. RECONVEYANCE: by trustee who has purchased, terms of, 214. REGISTERED TrTLES: sales by trustees of, 200. REGISTRY: of deed or judgment, where required by law, must be looked to by trustee, 116, n., 132. REIMBURSEMENT. {See Advances; Costs; Expenses.] RELEASE : of breach of trust, form and requisites of, 152. executed in ignorance may be a nullity, 152. trustee having performed his trust, has no absolute right to, 154. the advantage of obtaining a release, 155. RELIGIOUS TRUST. \_See Charitable Trust.] RELINQUISHMENT OF TRUST. [5ee Withdrawal.] REMOVAL OF TRUSTEE : by the Court of Chancery, 44, 60. [/See Trustee Acts; Trustee.] of schoolmaster, 253. of minister, 249. REMUNERATION : to trustee under very special circumstances, 104. but not usually allowed, 100. RENEWAL : when it is the duty of a trustee of leaseholds to obtain, 221. must be obtained by trustees of a settlement, 222. fines, how to be raised, apportionment of, 223. expenses of, may be raised by mortgage, 224. obtained by trustee in his own name, must be made over to the cestuique irust, 226. Index. 393 REPAIRS : of mansion house by trustee, 186. RESALE : of estate purchased by trustee for sale, terms on which it will be directed, 214. costs consequent upon, 280. act authorizing trustees to buy in and resell, without being liable for loss on resale, 192. REVERSIONARY INTEREST OF MARRIED WOMAN: created since 25th August, 1857, may be released, see stat. 20 & 21 Vict. u. 57. cannot by the surrender of the husband's life estate, become capable of being released, 144. RIGHT TO RELEASE : where there has been departure from terms of the trust, 154. ROMAN CATHOLIC CHARITIES (England and Wales): are now included under the Charitable Trusts Acts, 258. special act affecting, 242. ROMILLY'S ACT: for regulating charities, 237. SALE: power and duties of trustees for, 188 — 192. trusts for sale created since August, 1860 (Lord Cranworth's Act), 196. (For the Jet, see Appendix of Statutes, p. 331.) of settled estates, under the Settled Estates Act, 199. of charity lands, 241, 255. to a trustee for sale not allowed, 209. how a trust for, is to be exercised, 1 92, et seq, by public auction, to be preferred, 189. power of, whether it will authorize a mortgage, 193. will not authorize a partition, 195. by auction, regulated by new Act, 190. SCHOOL. [See Charitable Trusts.] SECURITIES. [See Investment; General Order; Mort- gage.] SETTLED ESTATES ACT: referred to, 186. {For practice under, see Morgan's Ch. St. and Orders.) SETTLEMENT : estates in [see Doties], 185. equity of a married woman to, on herself and children, 143. 394 Index. SOLICITOR: who is trustee will not be allowed professional charges, but costs out of pocket only, 100. if authorized to charge, must limit charges to such as are professional, 100. special agreement may be made for full charges, 104. who has committed a breach of trust is liable to be struck off the roll, 109. retained by trustee, has no claim against the estate, 266. and is not primarily accountable to cestuique trust, 267. but the latter may obtain an order to tax the costs of the solicitor who has acted in the trust, 268. costs may be moderated, after payment, 267. can claim no lien on trust property, 285, u. \_See Costs.] STATEMENT OF TRUSTEE: for judicial advice, contents and service of, 260, must be signed by counsel, 261. ST. LEONARDS' ACT (LORD): judicial advice may be obtained under, 260. {For this Act, see Appendix of Statutes, p. 324'.) STOCK : effect of a recital of transfer of, 38. definition of, in the Trustee Act, 47. standing in the name of a lunatic trustee, 48. in the name of an infant trustee, 52. when trustee of, is out of the jurisdiction, or refuses to transfer, 51. order for dividends accrued on, 52, n. standing in the sole name of a deceased person, 53. effect of an order vesting right to transfer, 54. ordinary duties of trustee of, 112. power of attorney to receive dividends of, 112. distringas, to prevent transfer of, 113. may be lodged under Trustee Relief Acts, 162 — 168. investment in, by the Accountant-General, 168, 169. three per cent, no longer the only stock in which trust funds may be invested, 122, et seq. of the Bank now authorized as an investment for trust money, 123. East India, an authorized investment, 124. SUCCESSION DUTY: payable by the trustee, on property coming into his hands, 217. liability of leaseholds to, as quasi rea\ property, 217, n. returns to be furnished to Inland Revenue, 218. for appointment of new trustees, 40. Index. 395 SUIT: may be directed, when Court considers procedure under Trustee Act inapplicable, 67, 68. against trustee, by cestuique trust, 89 ; by a wrong doer, 90. defended by trustee who is a solicitor, 101, 102. may be directed, under Trustee Relief Act, 173, 174. trustee's costs of, ordinarily allowed, 264, 269, 274. in charity cases, with concurrence of the Attorney-General, 236. under Romilly's Act, 237. [See Costs ; Trustee.] SURVIVORSHIP: of trust, on death of one of several trustees, 20. TAXATION: of costs of trustees, 267, 268. ^ frequently avoided by a fixed sum being awarded for costs, 278. THREE TRUSTEES : recommended in all cases, 14. TITLE DEEDS: trustee, when legal owner, may hold, 184. trustees may entrust the deeds to one of themselves, 184. TRUST: definition of, 2. classification of, 3. how created, 5, 6. will be fulfilled by the Court, 7. in conformity with the rules of equity, 8. acceptance of, how evidenced, 14. after being accepted, cannot be renounced, 17. trust devolves upon surviving trustee, 20. attaches to the estate, after conveyance, except as against purchaser for value without notice, 22, attaches to new lease or renewal obtained by trustee, 226. of a public or charitable nature, 233, et seq. [&e Disclaimer ; Trustee.] TRUSTEE : definition of, 2. who is eligible for the office, 13. living abroad or becoming bankrupt, 24, 36. refusing to act or disclaiming, 17. liability of, for breach of trust, 15. may continue although abroad temporarily, and although be- come bankrupt, if certificate obtained, 13, 24, 36. appointing a successor, should give notice, 37. 396 Index. TRUSTEE— c