THE TRUSTEE ACT, 1850. 13 & 14 VICTORIA, C. 60. An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Property vested in Mortgagees and Trustees. [5th August, 1850.] WHEREAS an act was passed in the first year of the reign of his 13 & 14 Vict. late majesty King William the Fourth, intituled "An Act for c. 60, s. 1. amending the Laws respecting Conveyances and Transfers of 11 Geo. 4 & 1 Estates and Funds vested in Trustees and Mortgagees, and for Will. 4, c. 60. enabling Courts of Equity to give Effect to their Decrees and Orders in certain Cases:" and whereas an act was passed in the fifth year of the reign of his late majesty King William the 4 & 5 Will. 4, Fourth, intituled "An Act for the Amendment of the Law c.23. relative to the Escheat and Forfeiture of Real and Personal Property holden in Trust:" and whereas an act was passed in the second year of the reign of her present Majesty, intituled 1 & 2 Vict. c. 69. "An Act to remove Doubts respecting Conveyances of Estates vested in Heirs and Devisees of Mortgagees:" and whereas it is expedient that the provisions of the said acts should be consolidated and enlarged: be it therefore enacted, that all proceedings under the said acts or any of them commenced before the passing of this act may be proceeded with under the said recited acts, or according to the provisions of this act, as shall be thought expedient, and, subject as aforesaid, that the said recited acts shall be and the same are hereby repealed: provided always, that the several acts repealed by the said recited acts shall not be revived, and that such repeal shall only be on and after this act coming into operation. terms. 2. And whereas it is expedient to define the meaning in Interpretation of which certain words are hereafter used; it is declared, that the several words hereinafter named are herein used and applied in the manner following respectively; (that is to say,) The word "lands" shall extend to and include manors, messuages, tenements and hereditaments, corporeal and incorporeal, of every tenure or description, whatever may be the estate or interest therein; The word "stock" shall mean any fund, annuity or security transferable in books kept by any company or society established or to be established, or transferable by deed alone, or by deed accompanied by other formalities, and any share or interest therein (a); 13 & 14 Vict. c. 69, s. 2. 3 & 4 Will, 4, c. 74. The word "seised" (b) shall be applicable to any vested estate for life or of a greater description, and shall extend to estates at law and in equity (c), in possession or in futurity, in any lands: The word "possessed" shall be applicable to any vested estate less than a life estate, at law or in equity, in possession or in expectancy, in any lands: The words "contingent right," as applied to lands, shall mean a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent (d): The words "convey" and "conveyance" applied to any person, shall mean the execution by such person of every necessary or suitable assurance for conveyance or disposing to another lands whereof such person is seised or entitled to a contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, together with the performance of all formalities required by law to the validity of such conveyance, including the acts to be performed by married women and tenants in tail in accordance with the provisions of an act passed in the fourth year of the reign of his late majesty King William the Fourth, intituled " An Act for the Abolition of Fines and Recoveries, and the Substitution of more simple Modes of Assurance" (e), and including also surrenders and other acts which a tenant of customary or copyhold lands can himself perform preparatory to or in aid of a complete assurance of such customary or copyhold lands (ƒ): The words "assign" and "assignment" shall mean the execution and performance by a person of every necessary or suitable deed or act for assigning, surrendering, or otherwise transferring lands of which such person is possessed, either for the whole estate of the person so possessed or for any less estate: The word "transfer" shall mean the execution and per- The words "Lord Chancellor" shall mean as well the Lord The word "trust" shall not mean the duties incident to an shall extend to and include cases where the trustee has The word "lunatic" shall mean any person who shall have The word "devisee" shall, in addition to its ordinary signi- The word "person" used and referred to in the masculine gender shall include a female as well as a male, and shall include a body corporate: And generally, unless the contrary shall appear from the context, every word importing the singular number only shall extend to several persons or things, and every word importing the plural number shall apply to one person or thing, and every word importing the masculine gender only shall extend to a female. (a) Shares in a joint stock banking company come within this definition of stock. (In re Angelo, 5 De G. & S. 278.) Shares in ships registered under the "Merchant Shipping Act, 1854," are also included. (18 & 19 Vict. c. 91, s. 10.) (b) This word does not apply to leaseholds. (Re Harvey, Seton, 819. See Re Mundel, quoted under sect. 15, post. (c) See Re Williams, 5 De G. & Sm. 515, quoted under sect. 7, post. (d) This definition of "contingent right" is taken from the 8 & 9 Vict. c. 106, s. 6, (ante, p. 638,) with the view of including in this act all the estates and interests which may be disposed of under the former act. (e) A vesting order under this act will, if consented to by the protector of the settlement, bar all estates in remainder, and not pass a base fee only under 3 & 4 Will. 4, c. 74, s. 34. (Powell v. Matthews, 1 Jur., N. S. 973, ante, p. 339, n.) (f) See Rowley v. Adams, 14 Beav. 130. (g) See Re Osborn's Mortgage Trusts, L. R., 12 Eq. 392, where it was held, that, having regard to these words, the court had no authority to convey the estate of a mortgagee who had been paid off. See, also, Re Underwood, 3 K. & J. 745, quoted under sect. 15, post. (h) As to constructive trustees, in the case of stock, see Re Angelo, 5 De G. & Sm. 278; Re Davis' Trusts, L. R., 12 Eq. 214; in the case of a sale of land, Re Badrock, 2 W. R. 386; Re Carpenter. Kay, 418; Re Wilkinson, 12 W. R. 522; Re Weeding, 4 Jur., N. S. 707; and in the case of a mortgage of leaseholds, see Re Probert, 1 W. R. 237. (i) As to the meaning of mortgage in the act, see Re Underwood, 3 13 & 14 Vict. c. 60, s. 2. 13 & 14 Vict. c. 60, s. 3. Lord Chancellor may convey estates of lunatic gagees. K. & J. 745, quoted under sect. 15, post, and see Lawrence v. Galsworthy, 3 Jur., N. S. 1049. 3. When any lunatic or person of unsound mind shall be seised or possessed of any lands upon any trust or by way of trustees and mort- mortgage, it shall be lawful for the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics to make an order that such lands be vested in such person or persons in such manner and for such estate as he shall direct; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate (k). Orders under this section. Form of order. Practice on applications under this act in lunacy. Lord Justices acting in lunacy. Whether appli cation should be or lunacy. (k) Where one of three trustees was a lunatic, though the will contained a power to appoint new trustees, an order was made, appointing a new trustee, and vesting real estate and leaseholds in him jointly with the continuing trustees. (Re Davies, 3 Mac. & G. 278.) And where one of four trustees was a lunatic, and another unfit to act, an order was made appointing two new trustees, and vesting real estate and the right to call for a transfer of stock in the new trustees jointly with the two continuing old ones. (Re Chauncey, 14 W. R. 849.) But as the section speaks of conveyance and assignment, it was held, the court could not act under this section where the lunatic had only a power of sale. (Re Porter, 3 W. R. 583; where the order was subsequently made, Seton, 818; and see Re Boyce, 12 W. R. 359.) For form of petition by committee of lunatic mortgagor, on payment off of mortgage, see Elmer, Pr. Lun. 240, 5th ed.; and for form of vesting order, and of order appointing person to convey estates vested in lunatic, see Elmer, 241–244. See, further, as to the form of orders vesting real estate, the note to sects. 7, 10, and 34, post. It was considered that the Lords Justices acting in lunacy under the royal sign manual had jurisdiction to make a vesting order under this section. (Re Waugh's Trusts, 2 De G., M. & G. 279.) And it has since been enacted, that all the jurisdiction and all the powers and authorities of a judicial nature, given by 11 Geo. 4 & 1 Will. 4. c. 65, by the Trustee Act, 1850, and by any other acts or act of parliament then (1st July, 1852) in force, to the Lord Chancellor intrusted by virtue of the Queen's sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic or of unsound mind, shall belong to and may be exercised by all or any of the persons or person, for the time being, intrusted as aforesaid. (15 & 16 Vict. c. 87, s. 15; and see 15 & 16 Vict. c. 55, s. 11, post.) Where a trustee is lunatic, and there is no other disability, it has been held, that the Court of Chancery has no jurisdiction (Re Good Intent made in chancery Benefit Society, 2 W. R. 671; Re Ormerod, 3 De G. & J. 249); and that a petition in lunacy is necessary. (Jeffries v. Drysdale, 9 W. R. 428.) Where, however, the legal estate in land, sold under the order of the court, was vested in a person of unsound mind, not found a lunatic, an order was made in Chancery by Lord Hatherley and Selwyn, L. J., appointing a person to convey such legal estate. (Herring v. Clark, L. R., 4 Ch. 167.) A vesting order has been made upon a petition presented in chancery, and also in lunacy. (Re Stewart, 8 W. R. 297.) As to the power of the court to appoint new trustees, on a petition in lunacy alone, see 15 & 16 Vict. c. 55, s. 10, post, and note. Lunatic trustee who is an infant. Where stock is standing in the name of a trustee, who is of unsound mind, but not found a lunatic, which it is desired to bring into court to the credit of a cause, the cause should be first heard by the judge to whose court it is attached, and then a petition in lunacy should be presented. (Re Dawson, 6 N. R. 346.) Where a trustee is an infant as well as a lunatic, the Court of Chancery has jurisdiction, and recourse need not be had to the jurisdiction in lunacy. (Re Arrowsmith, 6 W. R. 642.) 13 & 14 Vict. c. 60, s. 3. Trustee of un found lunatic. Where a person has not been found lunatic by inquisition, it seems that the court has jurisdiction, even where the fact of the lunacy is disputed. (Re Viall, 8 De G., M. & G. 439; and see sect. 52, post; see contra, Re Campbell, 18 L. T. 202, and Re Walker, Cr. & Ph. 147.) A petition for an order, vesting in new trustees property, a trustee of which sound mind not has become lunatic, ought to be served on his committee. (Re Saumarez, 8 De G., Mac. & G. 390. And see Re Parker, 32 Beav. 580; Re Wylde, 5 De G., M. & G. 25.) Where the committee of a lunatic mortgagee presents a petition for an order enabling him to re-convey to the mortgagor, the petition should not be served on the mortgagor. (Re Rowley, 1 De G., J. & S. 417; Re Phillips, L. R., 4 Ch. 629.) Where the heir of a mortgagee was a lunatic, and on payment off of the mortgage debt a petition for a vesting order was presented by the mortgagor, the mortgagor was ordered to pay the costs. (Re Stuart, 4 De G. & J. 317; Re Jones, 2 De G., F. & J. 554.) When the mortgagee himself was a lunatic, and the mortgagor petitioned, the costs were ordered to be paid out of the lunatic's estate. (Re Townsend, 2 Phil. 348.) It seems, however, that the petition should be presented by the committee (Re Wheeler, 1 De G., M. & G. 434); and Lord St. Leonards has laid down that, when the lunatic is beneficially interested in the mortgage money, and the committee petitions for a vesting order, the costs of the petitioner should come out of the lunatic's estate. (Re Wheeler, 1 De G., M. & G. 434; Re Rowley, 1 De G., J. & S. 417.) The costs of the mortgagor's appearance as respondent on such a petition, even where he is served, will not be allowed out of the lunatic's estate. (Re Phillips, L. R., 4 Ch. 629.) Where a mortgagee was a lunatic, and the mortgagor petitioned for a reconveyance, and it appeared on the face of the mortgage deed that the mortgagee was a trustee, the costs were ordered to be paid by the mortgagor. (Re Lewes, 1 Mac. & G. 23.) But where the existence of the trust did not appear on the face of the mortgage deed, the costs were paid out of the estate of which the lunatic was trustee. (Re Townsend, 1 Mac. & G. 686.) Where a mortgagee was a lunatic and the purchaser of the mortgaged property under a decree in a suit for the administration of the mortgagor's estate petitioned for a vesting order, part of the costs were ordered to be paid to the petitioners out of the mortgage money, the remainder of the costs to be costs in the cause. (Re Viall, 8 De G., M. & G. 439.) Service. Costs where mortgagee or his heir is a lunatic. Where a trustee becomes lunatic, and consequently an application in Where trustee lunacy is necessary to obtain a transfer of the trust funds, no order will be a lunatic. made as to costs. (Re Garden, 6 N. R. 347.) may be conveyed. 4. When any lunatic or person of unsound mind shall be Contingent rights entitled to any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said Lord Chancellor shall direct; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or disposing of the contingent right. may transfer stock 5. When any lunatic or person of unsound mind shall be Lord Chancellor solely entitled to any stock or to any chose in action upon any of lunatic trustees trust or by way of mortgage, it shall be lawful for the Lord and mortgagees. Chancellor, intrusted as aforesaid, to make an order vesting in any person or persons the right 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; and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or chose in action upon any trust or by way of mortgage, it shall be lawful |