33.—(1.) Every trustee appointed by the Sect. 33. Court of Chancery, or by the Chancery Division Powers of of the Court, or by any other court of competent new trustee appoinjurisdiction, shall, as well before as after the trust ted by property becomes by law, or by assurance, or court. 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.

(2.) This section applies to appointments made either before or after the commencement of this Act.

This section is in reality a re-enactment of a part of Powers of sect. 27 (now repealed, see sect. 71, post), of Lord Cranworth's new trustee appoinAct (23 & 24 Vict. c. 145), with this alteration, that a ted by trustee appointed by the court now can act before the trust court. property has become vested in him as if he had been an original trustee. See sect. 31, sub-sect. 5.

trust pro

perty in

trustees.

34.-(1.) Where a deed by which a new Vesting of trustee is appointed to perform any trust contains a declaration by the appointor to the effect that new or any estate or interest in any land subject to the continuing trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right.

By this section it is provided that where, after the Vesting 31st December, 1881, a new trustee is appointed by a deed, trust pro

Note to containing a declaration that the trust property shall vest S.34,ss.1. in such trustee, such declaration shall, without any conveyance or assignment, vest the property in "the persons who by virtue of the deed become and are the trustees."

perty in

new or

continuing trustees.

Stamp.

It appears to be questionable whether the Act applies to the case of an appointment of a new trustee to act with continuing trustees, because it can scarcely be said that the latter are "persons who by virtue of the deed become and are the trustees for performing the trust," and such declaration as mentioned in this section would therefore have the effect of vesting the whole estate in the new trustees alone.

With respect to the mode of vesting trust estates, see Lewin on Trusts, 7th Edit., ch. XXIV., s. 6. And with regard to the trust property expressly excepted from the operation of this section, see sub-sect. 3, post.

It is to be noticed that this section only applies when a trustee is appointed by deed, therefore if a trustee has been appointed by writing (see sect. 31) it is evident that the section is inapplicable, unless the trustees are re-appointed on their "being desirous of retiring." In re Crowe's Trusts, 14 Ch. D. 610.

By sect. 78 of the Stamp Act, 1870 (33 & 34 Vict. c. 97), it is provided that a conveyance or transfer made for effectuating the appointment of a new trustee is not to be charged with any higher duty than 10s. ; but in the case of Hadgett v. Commissioners of Inland Revenue, 3 Ex. D. 46, it was held that an order of charity commissioners, by which new trustees of a charity are appointed, and the property of the charity vested in them, did not come within this proviso, but was chargeable under sect. 8 of that Act.

(2.) Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing

trustees alone, as joint tenants, and for the pur- Sect. 34. poses of the trust, the estate, interest, or right to which the declaration relates.

As to the retirement of trustees, see sect. 32.

(3.) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner prescribed by or under Act of Parliament.

It is to be noticed that the provisions of this section do Property

from oper

not apply to all descriptions of trust property, copyholds, excepted customary lands, lands conveyed by way of mortgage for ation of securing money subject to trusts, and stock transferable in section. books kept by a company being expressly excluded from the operation of this section.

(4.) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act.

(5.) This section applies only to deeds executed after the commencement of this Act.

trustees for

35.—(1.) Where a trust for sale or a power Power for of sale of property is vested in trustees, they may sale to sell sell or concur with any other person in selling, all by auction, or any part of the property, either subject to

&c.

Sect. 35. prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title, or other matter, as the trustees think fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss.

Power for

This section extends the provisions contained in the trustees for 1st and 2nd sections of Lord Cranworth's Act, and as those sale to sell, sections are not repealed by this Act, they will read in conjunction with this section.

&c.

Trustees

By Lord Cranworth's Act it was enacted that :—

23 & 24 "1. In all cases where by any will, deed, or other Vict. c. 145, instrument of settlement, it is expressly declared that ss. 1, 2. trustees or other persons therein named or indicated shall empowered have a power of sale, either generally, or in any particular to sell may event, over any hereditaments named or referred to in or sell in lots, from time to time subject to the uses or trusts of such will, by auction deed, or other instrument, it shall be lawful for such trustees or private or other persons, whether such hereditaments be vested in

and either

contract.

Sale may, be made under

them or not, to exercise such power of sale by selling such hereditaments either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid for any other hereditaments in England, or Wales, or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange.

"2. It shall be lawful for the persons making any such sale or exchange to insert any such special or other stipulations, either as to title or evidence of title, or otherwise, in any conditions of sale, or contract for sale or exchange, as they shall think fit, and also to buy in the hereditaments tees may or any part thereof at any sale by auction, and to rescind or buy in, &c. vary any contract for sale or exchange, and to re-sell the

special conditions, and trus

hereditaments which shall be so bought in, or as to which Note to the contract shall be so rescinded, without being respon- S.35,ss.1. sible for any loss which may be occasioned thereby, and no purchaser under any such sale shall be bound to inquire whether the persons making the same may or may not have in contemplation any particular reinvestment of the purchase money in the purchase of any other hereditaments or otherwise."

And by sect. 32 it was declared that none of the powers conferred by the statute should be exerciseable if it was declared in the instrument creating the power that they should not take effect.

It will be noticed on comparison that the power of sale conferred by this section on trustees is with respect to "property," whereas in Lord Cranworth's Act (sect. 1) it is in reference to "hereditaments," id. est., land.

See note to sect. 42, sub-sect. 5 (iii.).

(2.) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(3.) This section applies only to a trust or power created by an instrument coming into operation after the commencement of this Act.

It will be observed that this section applies only to a trust or power created by an instrument coming into operation after the commencement of this Act, 31st December, 1881, whereas the provisions contained in Lord Cranworth's Act extended only to persons entitled or acting under an instrument executed after the passing of that Act (28th August, 1860). Sect. 34.

receipts.

36.—(1.) The receipt in writing of any trus- Trustees" tees or trustee for any money, securities, or other personal property or effects payable, transferable,

G