shall be deemed in law his heirs and assigns, within s. 30 (1), (2), the meaning of all trusts and powers. (2.) Section four of the Vendor and Purchaser Act, 1874, and section forty-eight of the Land Transfer Act, 1875, are hereby repealed. (3.) This section, including the repeals therein, applies only in cases of death after the commencement of this Act. (3). TRUST AND MORTGAGE ESTATES ON DEATH. 37 & 38 Vict. c. 78. 38 & 39 Vict. c. 87. This section includes copyholds which are "an estate or interest of Copyholds inheritance" in "tenements," and operates to constitute the executor included. or administrator devisee of trust and mortgage estates. Whether as to any particular land he is such devisee will be shewn in the same manner as if there were an actual devise. The word "hereditaments" includes, more clearly than the word Also a personal "land," a personal inheritance, as an annuity to one "and his heirs." inheritance. (See Co. Lit. 2 a, 20a; Stafford v. Buckley, 2 Ves. Sen. 170; Holder nesse v. Carmarthen, 1 Brown, C. C. 377.) Such annuities are sometimes granted by corporations (Manchester, for instance) charged on the borough fund. arises. No question as to assent by an executor arises under this section. No question as He is put in the position of devisee, and cannot properly convey a trust to assent estate except to a duly appointed trustee; nor does an executor generally assent to a bequest of leaseholds held in trust, as he only assigns them to a duly appointed trustee; nor to a bequest of leaseholds in mortgage, as he retains the legal estate in order to get in and receive the money. The constitution of the personal representative to be trustee of course Heir excluded excludes the heir from being trustee, just as a devise would exclude as trustee. him. estates no longer proper It will now be unnecessary, and also useless, to make any devise of Devise of trust trust or mortgage estates. Their devolution is assimilated in all respects to the devolution of a term of years, which must pass to the personal representative. Notwithstanding any devise, the personal representative is the person to convey, and is in all cases the "heir” and “assign” for the purpose of exercising all trusts and powers. On the death of a personal representative a new representative must be constituted just as in case of personalty. Then if the executor of a trustee die and there is no executor to his estate, letters of administration must be taken out to the trustee. The title to a freehold trust estate will in fact be made exactly in the same way if it had been a term of years held in trust. Title to freehold trust estate same as leasehold. Though a trust estate now passes to the personal representative it Trust estate must still be conveyed to the trustees" and their heirs," or "in fee simple" (see s. 51), in order to give them the fee simple. must still be This section renders obsolete, as regards persons dying after 1881, Cases affected. SS 30, 31. TRUST AND TRUSTEES AND Powers of trustees. all the decisions as to what words pass trust and mortgage estates, and as to whether the trusteeship passes to the devisees of trust estates, discussed in 1 Jarm. Wills, p. 709 et seq. 4th ed. If a testator wishes that his trust estates should go to particular persons, he can appoint them executors for that special purpose: see Wms. Exors. 387, 8th ed. As to the sect. of the Land Transfer Act, 1875, repealed by this sect., see note to V. & P. A. s. 5, ante. VII. TRUSTEES AND EXECUTORS. The following is a summary of the powers conferred on trustees by the C. A., and the provisions relating to trustees and trust estates contained in that Act and the V. & P. A. Trustees (i.) May under a trust or power of sale, sell, or concur in selling, by auction or private contract, together or in lots, &c. : C. A. s. 35 ; (ii.) May as vendors or purchasers adopt the conditions implied in the C. A. (see s. 66 of that Act), or in s. 2 of the V. & P. A. (see s. 3 of that Act); (iii.) May give receipts: C. A. s. 36; (iii.) is retrospective, (i.) and (ii.) are not, and apply so far as a contrary intention is not expressed in the instrument of trust. (iv.) May manage land of an infant, but in case of a female only while she is unmarried, apply income thereof for maintenance education, or benefit, and accumulate surplus: C. A. s. 42; (v.) May apply in like manner the income of any property in which any infant is interested: C. A. s. 43; (iv.) and (v.) apply only so far as a contrary intention is not expressed in the instrument under which the infant's interest arises; (v.) is retrospective, (iv.) is not. (vi.) Trustees or an executor (but not an administrator), may compound and compromise, and an executor may pay or allow any debt or claim: C. A. s. 37; (vii.) Powers or trusts given to executors or trustees are exercisable by the survivors or survivor: C. A. s. 38. (vi.) Is retrospective, (vii.) is not; (vi.) in regard to trustees, and (vii.) in regard to executors or trustees, apply only if a contrary intention is not expressed in the instrument of trust. (viii.) A married woman being a bare trustee of freeholds or copyholds may convey or surrender them as a feme sole: V. & P. A. s. 6. The C. A. contains also provisions: (ix.) For the appointment of new trustees with power to increase the number but without any obligation to appoint more than one where only one was originally appointed or to fill up the original number where more than two were originally appointed: s. 31. (x.) For the retirement of a trustee without appointing a successor: SS. 30, 31 (1). s. 32; (xi.) For giving trustees appointed by the Court the powers of original trustees: s. 33; (xii.) For vesting the trust property on the appointment of a new trustee, or the retirement of a trustee under (x.): s. 34, with the exceptions mentioned in subs. 3; (xiii.) For the devolution of the trust estate on the personal representatives of a sole trustee dying after 1881, notwithstanding his will: s. 30; (ix.) to (xi.) are retrospective; (xii.) applies only to deeds appointing new trustees or authorizing retirement under s. 32, executed after 1881; (xiii.) is not retrospective. TRUSTEES AND Where petitions now unnecessary. of new trustees, vesting of trust property, &c. Petitions for the appointment of new trustees ought not to be presented where the power given by the following section can be exercised: In re Gibbon's Trusts, W. N. 1882, p. 12. 31.-(1.) Where a trustee, either original or substi- Appointment tuted, and whether appointed by a Court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unfit, or being incapable, as aforesaid. This section includes the case of disclaimer. After disclaimer, which relates back, the person disclaiming is considered as never having been a trustee, but up to the time of disclaimer the trust estate remains vested in him, otherwise there would be nothing to disclaim. The estate being vested in him on trust at the moment of disclaimer, he necessarily is then a trustee, and is a trustee who refuses. The estate passes to him without any express assent, but subject to the right of dissenting: see Lewin, 176, 6th ed.; Smith v. Wheeler, 1 Vent. 128; Siggers v. Evans, 5 Ell. & Bl. 367, 382. In D'Adhemar v. Bertrand, 35 Beav. 19, it was assumed that a disclaiming trustee was included in A disclaiming trustee is a refusing trustee. the words "trustee who shall refuse to act" under Lord Cranworth's Act, s. 27; see also Lewin, 541, 6th ed. A bankrupt trustee is a trustee unfit to act: Re Barker's Trusts, 1 Ch. D. 43. He is bound to retire if requested, and may be removed under s. 117 of the Bankruptcy Act, 1869 Re Adams' Trust, 12 Ch. D. 634; and a new trustee may be appointed in his place under this section: Re Gibbons' Trust, W. N. 1882, p. 12. If the power to appoint new trustees given by a settlement does not extend to all the cases provided for by this section, if for instance it does not apply where a trustee remains out of the United Kingdom for more than twelve months, then in the omitted cases there is not any "person or persons nominated for the purpose by the instrument creating the trust," and the appointment should be made under this section by the surviving or continuing trustees. This holds good whether the settlement be made before or after the commencement of this Act. In settlements made since Lord Cranworth's Act, the form of the power will generally be "that A. B. shall have power to appoint new trustees" without specifying in what cases. Under this form, the power being unlimited, A. B. will be the "person nominated for the purpose" within the meaning of this section. (2.) On an appointment of a new trustee, the number of trustees may be increased. This subs. is applicable to the appointment of more than one new trustee, as singular imports the plural, see n. to s. 50, post. (3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees, where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust. (4.) On an appointment of a new trustee any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done. This subs. must be read in connection with s. 34 (1), post, rendering a conveyance of the trust property unnecessary on the appointment of a new trustee, except in cases within subs. 3 of that s. (5.) Every new trustee so appointed, as well before as (7), (8); S. 32 (1). after all the trust property becomes by law, or by assur- S. 31 (5), (6), ance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (6.) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator; and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (7.) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. Where under an instrument, whether dated before this Act or subsequently, a limited power to appoint a new trustees is given to a specified person, say, in case only of a trustee refusing, it is conceived that the power given to the surviving or continuing trustee by subs. (1) applies to all the other cases there mentioned, and that the omission to provide for all those cases is not sufficient to shew a contrary intention within this subs. (8.) This section applies to trusts created either before or after the commencement of this Act. TRUSTEES AND Whether omission of particular contrary intention. cases shews This and the subsequent sections included in Part VII. of this Act replace Part III. of Lord Cranworth's Act, which is repealed (see second schedule, Part III.). The power to appoint new trustees applies to all Power instruments past and future, including those dated before Lord Cran- retrospective. worth's Act, and to which that Act did not apply. 32.-(1.) Where there are more than two trustees, if Retirement of one of them by deed declares that he is desirous of being trustee. discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place. |