Sect. 35, sub-s. (1).

who, on the appointment, are the trustees; and

(B.) Where the person whose right is dealt with by the order was entitled jointly with another person, the right shall be vested in that lastmentioned person either alone or jointly with any other person whom the court may appoint.

(2.) In all cases where a vesting order can be made under this section, the court may, if it is more convenient, appoint some proper person to make or join in making the transfer.

(3.) The person in whom the right to transfer or call for the transfer of any stock is vested by an order of the court under this Act, may transfer the stock to himself or any other person, according to the order, and the Banks of England and Ireland and all other companies shall obey every order under this section according to its tenor.

(4.) After notice in writing of an order under this section it shall not be lawful for the Bank of England or of Ireland or any other company to transfer any stock to which the order relates or to pay any dividends thereon except in accordance with the order.

(5.) The High Court may make declarations and give directions concerning the manner in which the right to any stock or chose in action vested under the provisions of this Act is to be exercised.

(6.) The provisions of this Act as to vesting orders shall apply to shares in ships registered under the Acts relating to merchant shipping as if they were stock.

Vesting Orders as to Stock and Choses in Action.-The several provisions of the Trustee Acts, which relate to vesting

orders as to stock and choses in action, are here grouped Notes to together, as those which relate to land are collected in s. 26, Sect. 35. ante.

The enactments replaced by this section are ss. 20, 22, 23, 24, 26, 31, and 35 of the Trustee Act, 1850; ss. 3, 4, and 6 of the Trustee Act, 1852; and s. 10 of the Merchant Shipping Act, 1855 (18 & 19 Vict. c. 91).

Section 25 of the Trustee Act, 1850, and s. 5 of the Trustee Act, 1852, are not in terms replaced by any provision in this Act. They provide that where any stock shall be standing in the sole name of a deceased person, and his personal representative shall be out of the jurisdiction, or cannot be found, etc., a vesting order may be made. In cases such as Re Ellis' Settlement, 24 Beav. 426, and Re Trubee's Trusts, (1892) 3 Ch. 55, where the personal representative could not be held to be a trustee of the stock, the present section would seem not to apply. Section 4 of the Trustee Act, 1852, was not limited like the present section to the case of a trustee.

Practice. For the practice as to vesting orders, see note to s. 26, ante.

"Entitled Alone."-The words "entitled alone," in sub-s. (1) (ii), do not confine the section to the case of a sole trustee Re Hyatt's Trusts, 21 Ch. D. 846.

Official Liquidator.-An official liquidator seems to be a trustee for the purposes of this section: Capital Fire Insurance Co., 31 Sol. J. 94.

Form of Order.—A vesting order of stock or shares should, as a general rule, direct the trustees to transfer into their own names (Re Gregson, (1893) 3 Ch. 233; Re Price, W. N. (1894) 169), but not where liability would be incurred by doing so: Re New Zealand Trust Co., (1893) 1 Ch. 403.

Beneficiary. A person who is absolutely entitled, cannot obtain an order vesting stock in him beneficially, but he may be appointed a trustee for himself: Re Dickson, 21 W. R. 220; Re Price's Settlement, W. N. (1883) 202. The same rule prevails in lunacy Re Currie, 10 Ch. D. 93.

Number of Trustees. On making a vesting order the nnmber of trustees need not be kept up either in Chancery (Re Price, W. N. (1894) 169; Dugmore v. Suffield, W. N. (1896) 50; Re Lees' Trusts, (1896) 2 Ch. 508) or in Lunacy: Re Leon, (1892) 1 Ch. 348.

entitled to

orders.

36.—(1.) An order under this Act for the appoint- Persons ment of a new trustee or concerning any land, stock, apply for or chose in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock, or chose in action, whether under

Sect. 36, disability or not, or on the application of any person sub-s. (1). duly appointed trustee thereof.

Powers of new trustee

by court,

(2.) An order under this Act concerning any land, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage.

Persons Entitled to Apply for Orders. This section replaces s. 37 of the Trustee Act, 1850, repealed by s. 51, post.

66

A person having a contingent interest is beneficially interested" within the meaning of this section (Re Sheppard's Will, 4 De G. F. & J. 423), and also a purchaser under a sale by the court after he has paid his purchase-money into court (Ayles v. Cox, 17 Beav. 584); but it seems that the plaintiff in the action should join in the application: Rowley v. Adams, 14 Beav. 130.

The committee of a lunatic cestui que trust is not "beneficially interested:" Re Bourke, 2 De G. J. & S. 426.

This section does not affect the general rule that all persons beneficially interested must be before the court either as applicants or respondents. See Re Richards' Trust, 5 De G. & S. 636; Re Sloper, 18 Beav. 596.

Mortgage. See ss. 28, 29, ante, as to vesting orders in the case of mortgages.

37. Every trustee appointed by a court of comappointed petent jurisdiction shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

Powers of New Trustee Appointed by Court. This section replaces s. 33 of the Conveyancing Act, 1881 (repealed by s. 51, post), which had re-enacted, with amendments, part of s. 27 of Lord Cranworth's Act. Previously to that Act, trustees appointed by the court could neither exercise powers operating under the Statute of Uses, nor appoint new trustees, nor execute trusts involving the exercise of an arbitrary power: Newman v. Warner, 1 Sim. (N.S.) 457; 3 Dav. Conv. 242, 3rd ed. This enactment empowers the trustees to act before the property is

vested in them, and effects in the case of trustees appointed by a court what s. 10 (3), ante, effects for trustees appointed under the statutory power. Both can act as if they had been originally appointed trustees of the instrument creating the trust, and if they purport to exercise the powers they can only do so subject to any restrictions imposed on the original trustees.

Notes to

Sect. 37.

charge costs

estate.

38. The High Court may order the costs and Power to expenses of and incident to any application for an on trust order appointing a new trustee, or for a vesting order, or of and incident to any such order, or any conveyance or transfer in pursuance thereof, to be paid. or raised out of the land or personal estate in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the court may seem just.

Costs. This section replaces s. 51 of the Trustee Act, 1850, with the addition of the words "and by such persons.' The court can now, either by reason of these words or under the general powers conferred by s. 5 of the Judicature Act, 1890 (53 & 54 Vict. c. 44), order a recusant trustee to pay the costs of the proceedings: Re Knox's Trusts, (1895) 2 Ch. 483. Formerly there was no jurisdiction to do so Re Primrose, 23 Beav. 580; and see Re Sarah Knight's Will, 26 Ch. D. 82.

Of Appointment of New Trustees.-As a general rule, the appointment of new trustees being for the benefit of all the persons interested, the costs are payable out of capital; but the tenant for life (Re Fellowes, 2 Jur. (N.s.) 62) or the remaindermen (Re Brackenbury's Trusts, L. R. 10 Eq. 45) may be ordered to pay them.

Of Vesting Order. The costs of a vesting order on the occasion of a new trustee being appointed also, as a general rule, fall upon capital. As between mortgagor and mortgagee, the costs of the application are payable by the former as costs of reconveyance, except in the case where the application has been rendered necessary by the lunacy of the mortgagee. See Re Wheeler, 1 De G. M. & G. 434; Re Phillips, L. R. 4 Ch. 629; Re Jones, 2 Ch. D. 70; Re Sparks, 6 Ch. D. 361. When a vesting order has to be obtained on a sale the vendor has generally to bear the costs of it: Bradley v. Munton, 16 Beav. 294; Ayles v. Cox, 17 Beav. 584.

charities.

39. The powers conferred by this Act as to vesting Trustees of orders may be exercised for vesting any land, stock,

Sect. 39.

Orders made upon certain allegation to be

or chose in action in any trustee of a charity or society over which the High Court would have jurisdiction upon action duly instituted, whether the appointment of the trustee was made by instrument under a power or by the High Court under its general or statutory jurisdiction.

Trustees of Charities. This section replaces s. 45 of the Trustee Act, 1850, repealed by s. 51, post.

The Charity Commissioners now have power under the Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136), s. 2, to appoint or remove trustees of any charity and to make vesting orders, and may exercise the jurisdiction in contentious cases: Re Burnham National Schools, L. R. 17 Eq. 241.

40. Where a vesting order is made as to any land under this Act or under the Lunacy Act, 1890, or conclusive under any Act relating to lunacy in Ireland, founded 53 & 54 Vict. On an allegation of the personal incapacity of a c. 5. trustee or mortgagee, or on an allegation that a

evidence.

trustee or the heir or personal representative or devisee of a mortgagee is out of the jurisdiction of the High Court or cannot be found, or that it is uncertain which of several trustees or which of several devisees of a mortgagee was the survivor, or whether the last trustee or the heir or personal representative or last surviving devisee of a mortgagee is living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir or has died and it is not known who is his heir or personal representative or devisee, the fact that the order has been so made shall be conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order; but this section shall not prevent the High Court from directing a reconveyance or the payment of costs occasioned by any such order if improperly obtained.

Orders made Evidence. This section replaces s. 44 of the Trustee Act, 1850, and s. 140 of the Lunacy Act, 1890 (both