trust, although the appointment confers the character upon the new trustee, it is insufficient to clothe him with the trust estate. To effect this, an actual conveyance or assignment of the trust property must be made to him by the outgoing trustee and continuing trustees (if any), or the representatives of the last existing trustee, according to the particular nature and quality of the trust premises: (Warburton v. Sandys, 14 Sim. 622; Bennett v. Burgis, 5 Hare, 295.)

Points to be carefully attended to in making appointment.] -In making the appointment of a substituted trustee, care ought to be taken, not only to follow the precise terms of the power, but also to show in the expressions by which it is exercised, that such terms have been duly complied with; as, for example, if the consent in writing of some particular person is required, or if it is also required that the instrument of appointment is to be executed and attested in the presence of a certain number of witnesses, it should be stated in the first instance, that the appointment is made with such consent in writing; and in the other, that it is made by an instrument attested by the required number of witnesses.

Where a single instrument will suffice, and where two will become necessary.]-If entirely new trustees, or only a single trustee is appointed to fill the vacant office, or if the whole of the trust property consists of real estate, then one instrument will be sufficient to perfect the assurance, and the appointment of the new trustee, and conveyance or assignment of the trust estate may be both contained in the same deed. But if the new trustee is to have a joint estate vested in him with the continuing trustee, and the trust property, or any part of it, consists of chattels, whether real or personal, then a second instrument will be required to execute the joint estate. That is to say, the only effectual way in which this can be done is for the continuing trustees, and all persons in whom the trust property is vested, first to assign the same to a temporary trustee upon trust that the latter shall, by a deed then already prepared, reassign the trust premises to the continuing trustees and new trustee upon the trusts of the original settlement: (see the form 3 Con. Prec., Part X., No. III., clause 11, p. 149, 2nd edit.) And such assignment must be made accordingly: (see the form, ib. No. IV., 151.)

Cause of two instruments being requisite.]-The necessity for the two instruments arises from the circumstance that assignments of personal property, whether consisting of

chattels real or personal, are not within the operation of the Statute of Uses, so that a trustee cannot, as in the case of a freehold estate, be used as a conduit-pipe, through the medium of which parties may grant and take back a legal estate by the same instrument. But where the trust property consists of a freehold estate, then, by the continuing trustees or trustee and the retiring trustee conveying the same to a temporary trustee to uses, such estate may be limited to such temporary trustee and his heirs to the use of the continuing and new trustee and their heirs, by which means the whole legal fee will become effectually vested in such new trustee jointly with the continuing trustees without the necessity of any further assurance, and, in fact, as effectually to all intents and purposes as any modern mode of assurance is capable of accomplishing.

How instrument appointing new trustees and vesting trust estate should be penned.]-If the appointment of the new trustees, and conveyance and assignment of the trust estate, are both contained in the same instrument, that instrument ought to be an indenture in preference to a deed poll. The new trustee should execute the deed, and thereby bind himself by estoppel to an acceptance of the trusts, which neither his appointment, or even being named as a grantee in the conveyance of the trust estate, would afford conclusive evidence of.

How instrument appointing new trustee should be penned.] -The proper parties will be the donees of the power, who are to appoint the new trustee of the first part; the continuing trustees, and also the retiring trustee, if living, or the representatives of the last existing trustee, or any other persons in whom the legal estate is vested, of the second part; the trustee to serve the uses, or to be the temporary assignee of the personal estate, of the third part; and the continuing and new trustee of the fourth part. The settlement or will appointing the trustees should be then recited, and the power to appoint the new trustees should be clearly stated, setting out at the same time the terms, if any, which are prescribed for executing such power. After this, the cause of the office of trusteeship becoming vacant, as by death, desire to retire from office, incapacity or unwillingness to act any longer in trusts, and so forth, should be stated, according to the circumstances, as also the intention to appoint the new trustee to the vacant office. The appointment of the new trustee should then be made, which, as we

have just before noticed, should be made in strict accordanc with the terms of the power; and it should then be declared that the new trustees have consented to accept the trusts: (see the form 3 Con. Prec., Part X., No. III., clauses 1 to 5 inclusive, pp. 145, 148, 2nd edit.)

Conveyance and assignment of the trust estate.]—The conveyance or assignment of the trust estate must next follow. If real estate is to be conveyed, the conveyance must be made by the continuing trustees and the retiring trustee, if he be then living; but if the vacancy has occurred by his death, the concurrence of his heir would not only be unnecessary, but incorrect, where the trust estate was limited, as it ought to be, and in fact almost invariably is, to the trustees as joint tenants; because in that case, on the decease of any one of them, his estate would survive to his companions; but if, by any accident, the trustees were limited to take as tenants in common, then the concurrence of the heir of any deceased trustee would be requisite. The trust property must be conveyed to the trustee to uses, To hold to him, his heirs and assigns, to the use of the continuing and new trustee, their heirs and assigns, upon the trusts of the original settlement: (see the form 3 Con. Prec., Part X., No. ÏII., clauses 6 and 7, pp. 148, 149, 2nd edit.)

Where the vacancy occurs by the retirement or death of a sole or only surviving trustee.]—If the vacancy occurs in consequence of the retirement of a sole or of an only surviving trustee, then he alone, if living, will be the proper conveying party; and if dead, his representatives, according to the nature of the property, must stand in his place. If it consists solely of real estate, his heir must convey; if of personal, his personal representatives must assign; and if it consists both of real and personal property, his heir must convey the freehold portions of such trust estate, and his personal representatives assign those portions which consist of personal property.

Where the trust property consists of personal estate.]—In an assignment of personal estate, if it be made to entirely new trustees, or in case no trustee is appointed, but the retiring trustee only assigns his interest in the trust property to a continuing trustee or trustees, then it will be sufficient to limit the assigned premises to such new trustees or continuing trustees. But if a new trustee is appointed to act conjointly with the continuing trustees, then, for the reasons

already given (ante, p. 633), the assignment must be made to a temporary trustee, To hold unto the latter, upon trust to assign the same trust estate and premises to the continuing and the new trustee, which must be carried into effect by a subsequent instrument: (see the form 2 Con. Prec., Part X., No. III., pp. 145, 150, 2nd edit.) This instrument may be either a deed poll or an indenture; but the former is generally adopted for that purpose. By this it will be proper to recite the accompanying deed by which the new trustees are appointed; after which, the temporary trustee should assign the trust property to the continuing, and the new trustee or trustees, so as to vest the same in them as joint tenants, which it is thereby declared they are to hold upon the same trusts as are declared by the original settlement: (see the form 3 Con. Prec., Part X., No. IV., pp. 151, 153, 2nd edit.)

Where the trust estate consists of stock.]—Where the trust estate consists of stock in the public funds, the stock should be transferred from the names of the old into the names of the new trustee or trustees; and a memorandum of acknowledgment by the new trustees that the stock has been duly transferred accordingly ought to be indorsed on the original deed of settlement: (see the form 3 Con. Prec., Part X., No. V., p. 155, 2nd edit.) A memorandum of this kind does not require a stamp.

CHAPTER VII.

APPOINTMENTS IN EXERCISE OF POWERS.

PREVIOUSLY to the preparation of any instrument for exercising a power of appointment, it will be necessary to examine the instrument creating the power, in order to ascertain the extent to which the donee is authorized to exercise it; and in penning the instrument of appointment, due care must be taken that the terms of the power are strictly complied with; for the liberal assistance which a court of equity has ever been ready to afford in the aid of a defective execution of powers, affords no excuse to the practitioner through whose neglect or carelessness such defects arise as to render this equitable assistance necessary, which can never be obtained without incurring some considerable expense.

As to the instrument by which the power is to be executed.] -If a power of appointment is limited to a party in general terms, the donee of such power will be thereby authorized to make an appointment by any instrument by which the property over which the power extends could have been disposed of to a third party; but if a particular instrument only is specified, then by that particular instrument only can the power be exercised. If, therefore, the power be to appoint by deed, it cannot be exercised by will, and so vice

versa.

As to the mode in which the power is to be executed.]-No particular mode of execution is required by law for the execution of a power, and if the donor of the power imposes none, any instrument by which the appointment is authorized to be made and executed in the usual manner will be sufficient for the purposes; still it must be borne in mind, that although the law requires no particular solemnities, the