13 & 14 Vict. c. 60, s. 5. Vesting orders as to stock. Power to transfer stock of deceased person. Court of Chancery may convey estates of infant trustees and mortgagees. Form of orders vesting real estate. for the said Lord Chancellor to make an order vesting 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, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons, together with any other person or persons the said Lord Chancellor may appoint (7). (1) The wife of a lunatic was sole surviving trustee of stock. An order was made, appointing new trustees in the place of the married woman and the deceased trustees, and vesting in the new trustees the right to transfer the stock. (Re Wood, 3 De G., F. & J. 125.) Where one of the three executors of a surviving trustee of canal shares was of unsound mind, and the other two refused to act, an order was made vesting the right to transfer the shares in the persons beneficially entitled. (Re White, L. R., 5 Ch. 698.) The court will not, under the act, make an order as to the retransfer of stock which has been transferred out of the names of the trustees. (Re Stewart, 8 W. R. 297.) As to the effect of an order vesting the right to transfer stock, see sect. 26, post, and 15 & 16 Vict. c. 55, s. 6. Directions may be given as to how such a right is to be exercised. (Sect. 31, post.) Where a person of unsound mind was entitled to a sum of stock, as to part as trustee, and as to the residue beneficially, an order was made vesting in new trustees a right to call for a transfer of the trust stock, and to receive the arrears of dividends. It was found that the Bank could not pay arrears of dividends on part of a sum of stock, and an order was therefore made enabling the new trustees to receive the arrears of dividends on the whole sum of stock, upon an undertaking to invest in the name of the old trustee the dividends to which he was entitled beneficially. (Re Stewart, 2 De G., F. & J. 1; as to the indivisibility of dividends, see also Skynner v. Pelichet, 9 W. R. 191.) As to the form of an order vesting the right to transfer stock, see further the note to sect. 22, post. As to the practice under the act in Lunacy, see note to sect. 3, ante. 6. When any stock shall be standing in the name of any deceased person whose personal representative is a lunatic or person of unsound mind, or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting 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, in any person or persons he may appoint. 7. Where any infant shall be seised or possessed of any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the infant trustee or mortgagee had been twenty-one years of age, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate (m). (m) It was at first doubted whether under this section real estate could be ordered to go to uses to bar dower in favour of the cestui que trust (In re Howard's Estates, 21 Law J., Ch. 437; 5 De G. & S. 435); but in a subsequent case an order was made under this act that the legal estate outstanding in a trustee should vest to uses to bar dower in favour of a purchaser. (Davey v. Miller, 17 Jur. 908; 1 Sm. & G., App. xix.) And it is said that the same practice might be adopted under other sections, enabling the court to make vesting orders. (Ex parte Grieve, 5 De G. & S. 436, where the form of the order is stated: the court refused to insert a declaration against dower.) Where the executor and executrix (a married woman) of a mortgagee applied for a vesting order, the court instead of vesting the property in the executor and executrix, who was a feme covert, and who, in order to part with it, would have to acknowledge the deed, vested it in such person or persons as the executor and executrix should appoint, and, in default thereof, in the executor and executrix. (Re Powell, 4 Kay & J. 338.) A petition was presented under this act for an order to vest the legal estate, which was outstanding, in the infant heir of an intestate mortgagee. The owner of the equity of redemption had devised it to his three daughters, charged with a legacy of 2007. The three daughters applied that the estate might be vested in them subject to the legacy, and the court made the order. (In re Ellerthorpe, 18 Jur. 669.) An order vesting real estate should contain some description of the property intended to be comprised in it. (Re Ord, 3 W. R. 386.) See, further, as to the forms of order vesting real estate, the note to sect. 10 and sect. 34, post. 13 & 14 Vict. c. 60, s. 7. For forms of orders under this section, see Seton, 790. Where a mortgagee died leaving an infant heir, and having given all his Infant heir of "securities for money" to his executrix, it was held that the legal estate mortgagee. passed to the executrix, and a vesting order was refused. (Re King, 5 De G. & S. 644.) See Re Field, 9 Hare, 414; Knight v. Robinson, 2 K. & J. 503. And as to where the legal estate in mortgaged property passes under a devise, see further Re Finney, 3 Giff. 465, post; Re Stevens' Will, L. R., 6 Eq. 597; Martin v. Laverton, L. R., 9 Eq. 563; Lewin on Trusts, 187. The infant heir of a person who has died intestate leaving real estate, Infant heir of which he had in his lifetime contracted to sell, is not a constructive trustee vendor. for the purchaser within this act, unless he has been declared to be so by a decree of the court. (Re Carpenter, Kay, 420.) But where a vendor dies before completion of a compulsory sale to a railway company, both an infant heir (Re Russell's Estate, W. N. 1866, p. 125) and an infant devisee (Re Lowry's Estate, L. R., 15 Eq. 78) are trustees within the act, and orders will be made on petition without bill filed. A mortgage in fee was made of real estate. The mortgagor died, having Equitable estate devised the estate to an infant. A claim of foreclosure was filed by the of infant. mortgagee against the infant, and an order for sale was made therein. A vesting order as to the equity of redemption in the infant, against whom the decree for sale had been made, was refused on the ground that the mortgagee had the legal estate, and that all equitable estates were bound by the order for sale. (In re Williams' Estate, 5 De G. & S. 515; 21 Law J., Ch. 437.) In the case of an infant tenant in tail, a vesting order under this act will, Infant tenant in if the protector consents to it, bar all estates in remainder. (Powell v. tail. Matthews, 1 Jur., N. S. 973; and see Hargreaves v. Wright, 1 W. R. 408; Singleton v. Hopkins, 4 W. R. 107.) A petition under this act for the appointment of a person to convey in the Service. place of an infant heir of a deceased mortgagee, need not be served on the infant. (Re Willan, 9 W. R. 689; Re Wise, 5 De G. & Sm. 415.) Where a vendor died before executing the conveyance, the court held that service on his infant heir was necessary, and that a guardian must be appointed. (Re Russell's Estate, W. N. 1866, p. 125.) Service of a petition for vesting in newly-appointed trustees lands which had descended to the infant heir of the former sole trustee upon the guardian of the infant heir was held unnecessary. (Re Little, L. R., 7 Eq. 323; Re Tweedy, 9 W. R. 398.) But see Re Cooper (9 W. R. 531), where the court required the appointment of a guardian ad litem. 8. Where any infant shall be entitled to any contingent right Contingent rights in any lands upon any trust or by way of mortgage, it shall be of infant trustees and mortgagees. 13 & 14 Vict. c. GO, s. 8. Court of Chancery may convey the out of the jurisdiction of the court. lawful for the Court of Chancery to make an order wholly releasing such land from such contingent right, or disposing of the same to such person or persons as the said court shall direct; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the contingent right (n). (n) For forms of orders under this section, see Seton, 791. 9. When any person solely seised or possessed of any lands estate of a trustee upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall be lawful for the said court to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate (o). Where heir could not be found. (0) A testator devised lands in trust to sell for the payment of debts; the trustees disclaimed and the heir at law could not be found. The lands were sold under a decree in an administration suit; and it was held that an order was properly made, under sects. 9 and 20, appointing a person to convey to the purchasers. (Wilks v. Groom, 6 De G., M. & G. 203; 2 Jur., Heir out of juris- N. S. 1077.) And where a testator directed his real estate to be sold without naming anyone to sell, and there was no devise of the real estate, and it was doubtful whether the executor had a sufficient power of sale to convey the legal estate to a purchaser, and the heir was out of the jurisdiction, the court in an administration suit declared the heir to be a trustee, and made an order vesting his interest in the executor. (Hooper v. Strutton, 12 W. R. 367; see Re Badcock, 2 W. R. 386.) diction. Co-heiress out of jurisdiction. Mortgagor absconding. A testator devised copyholds to A., one of his daughters; after his death his two daughters A. and B., being his co-heiresses, were admitted as tenants in common; and subsequently, on an enfranchisement, the conveyance was made to A. and B., their heirs and assigns. B. was out of the jurisdiction it was held that an order, vesting in trustees for A. the legal estate which was in B., was properly made under sect. 9, and not under sect. 10. For as to the legal estate in the copyhold; A. and B. were admitted as tenants in common, and B. was solely seised of one moiety as trustee for A. And as to the legal estate in the freehold; B. was the only trustee, and sect. 10 was excluded, which only applied where two were jointly seised upon a trust. (McMurray v. Spicer, L. R., 5 Eq. 527.) Where a mortgagor, the defendant in a foreclosure suit, had absconded, an order was made declaring him a trustee and vesting the estate in the mortgagee. (Lechmere v. Clamp, 30 Beav. 218; 31 Beav. 578.) But the court will not make such a declaration on motion to make the order of foreclosure absolute; a separate application must be made. (Smith v. Boucher, 1 Sm. & G. 72.) Leases were granted to A. B. for certain terms of years. He subdemised to C. D. for terms less ten days. C. D. mortgaged to E. F. & Co. for securing money, and subdemised for the last-mentioned terms less one day, with a power of sale, and covenanted to assign the last day of each term to a purchaser. The mortgagees (E. F. & Co.) sold to G. H., and assigned the mortgage terms. G. H. then bought of A. B. the improved ground rents, and took an assignment of the leases granted to him. C. D., the mortgagor, being abroad, G. H. petitioned under this act, that the court would declare the last day of each of the terms created by the underlease to him vested in the petitioner, but the court, concurring in the opinion of one of the Vice-chancellors, dismissed the petition. (In re Probert's Purchase, 22 L. J., Ch. 948.) For forms of orders under this section, see Seton, 791. The case of a trustee of stock being out of the jurisdiction or impossible to find is pro- 13 & 14 Vict. vided for by sect. 22, post. 10. When any person or persons shall be seised or possessed of any lands (p) jointly with a person out of the jurisdiction of the Court of Chancery, or who cannot be found, it shall be lawful for the said court to make an order vesting the lands in the person or persons so jointly seised or possessed, or in such last-mentioned person or persons together with any other person or persons, in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate (q). (p) This section is to be read "when any person or persons shall be seised or possessed of any lands upon any trust jointly," &c. (Per Malins, V.-C., McMurray v. Spicer, L. R., 5 Eq. 539.) (1) Where one of a bankrupt's assignees had gone abroad, the court made an order declaring him a trustee, and vesting the estate in the other assignees. (Re Joyce, L. R., 2 Eq. 576.) A mortgagee having died intestate, the estate descended upon two coparceners, one of whom was out of the jurisdiction; the court made an order under this section vesting the estate in the other alone. Templer's Trust, 4 N. R. 494.) (Re But where realty was mortgaged to A. and B., of whom A. afterwards went abroad, and upon sale of the mortgaged property by the mortgagor so much of the purchase-money as was payable to the mortgagees was invested in their joint names: it was held, that the court had no jurisdiction under this section upon a petition presented by the mortgagor and B., to make an order vesting in the purchaser the estate of A. (Re Osborn's Mortgage Trusts, L. R., 12 Eq. 392.) c. 60, 8. 10. Court may make order in cases seised of lands jointly with pardiction of court, where persons are ties out of juris &c. Under this section the court will make an order vesting lands in a new Form of order. trustee jointly with continuing trustees, notwithstanding the doubts sug. gested in Re Watt's Settlement (9 Hare, 106), and Re Plyer's Trust (9 Hare, 220). (Re Bute (Marquis), Johns. 15. See also Smith v. Smith, 3 Drew. 72, quoted in note to sect. 34, post.) For form of order under this section, see Seton, 791. 11. When any person solely entitled to a contingent right in Contingent rights any lands upon any trust shall be out of the jurisdiction of of trustees. the Court of Chancery, or cannot be found, it shall be lawful for the said court 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 court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right (r). (r) For forms of orders under this section, see Seton, 792. 12. When any person jointly entitled with any other person or persons to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery or cannot be found, it shall be lawful for the said court to make an order disposing of the contingent right of the person out of the jurisdiction, or who cannot be found, to the person or persons so jointly entitled as aforesaid, or to such last-mentioned person or persons together with any other person or persons; and Court may make order in cases where persons are jo tly entitled the jurisdiction of the court to a conlands. with others out of tingent right in 13 & 14 Vict. c. 60, s. 12. When it is uncertain which of several trustees was the survivor. When it is uncertain whether the last trustee be living or dead. When trustee dies without an heir. the order shall have the same effect as if the trustee out of the 13. Where there shall have been two or more persons jointly seised or possessed of any lands upon any trust, and it shall be uncertain which of such trustees was the survivor, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the survivor of such trustees had duly executed a conveyance or assignment of the lands in the same manner for the same estate (t). (t) For form of order under this section, see Seton, 792. 14. Where any one or more person or persons shall have been seised or possessed of any lands upon any trust, and it shall not be known, as to the trustee last known to have been seised or possessed, whether he be living or dead, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the last trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate (u). (u) For form of order under this section, see Seton, 792. 15. When any person seised (x) of any lands upon any trust shall have died intestate as to such lands without an heir, or shall have died and it shall not be known who is his heir or devisee, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the lands in the same manner for the same estate (y). (a) From the use of the word "seised" it was inferred that this section does not apply to leaseholds. (Re Mundel, 8 W. R. 683.) (y) In consideration of money lent, real estate was conveyed to the lender, his heirs and assigns, upon trust, in case the principal money and interest should be repaid by a given day, for the borrower, his heirs or assigns; but in case default should be made, then upon trusts for sale; and the trusts of the purchase-money were declared to be for payment of the principal money, interest and costs, and subject thereto for the borrower, "his executors, administrators or assigns." Default having been made: it was held, that the trust of the surplus being for the borrower, "his executors, administrators or assigns," and not for him, "his heirs or assigns;" the deed operated to convert the property as between his real and personal representatives. It was, therefore, more than merely a security for money, more, that is, than a "mortgage," as defined by the 2nd section of this act, it was a deed of "trust" within the meaning of this section; and the lender having died intestate, and it being impossible to find his heir, the court had power to make a vesting order under that section. (Re Underwood, 3 Kay & J. 745.) |