13 & 14 Vict. c. 60, 8. 22.

When trustee of stock refuses to transfer.

Request by

entitled.

Orders have been made under this section vesting the right to transfer stock in a cestui que trust, who was absolutely entitled. (Ex parte Bradshaw, 2 De G., M. & G. 900; Re Ryan, 9 W. R. 137; and see Re White, L. R., Ch. 698. See contra, Re Brass, 4 W. R. 764; and Re Dickson, ante, p. 660.) For forms of orders, see Seton, 795-797.

23. Where any sole trustee (1) of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person absolutely entitled thereto (m), it shall be lawful for the Court of Chancery to make an order vesting the sole 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 such person or persons as the said court may appoint (n).

(1) Where stock was standing in the names of two trustees, both of whom refused to transfer, it was held that the 23rd and 24th sections did not apply. (Re Spanforth's Settlement, 12 W. R. 978.)

(m) The person entitled for life to the dividends of stock held in trust persons absolutely requested in writing two executors of a sole deceased trustee, in whose name the trust stock was standing in the bank books, to receive the dividends, and they made default for twenty-eight days in doing so. Upon the petition of the person entitled for life to the dividends, the court declared, that the right to receive the dividends which accrued due prior to such request was vested in the petitioner, but it was held, that the court had no authority to make any order as to any dividends accrued or to accrue subsequent to the date of the request. (In re Hartnall, 5 De G. & S. 111; 16 Jur. 33; 21 L. J., Chanc. 384.)

Service.

One of several trustees of stock is not a person absolutely entitled within the meaning of the 23rd and 24th sections of this act, nor is a cestui que trust who has only a life interest in the dividends, at least where the application is to transfer the stock. (Mackenzie v. Mackenzie, 5 De G. & Sm. 338; 16 Jur. 723.)

The surviving trustee of a sum of stock neglected for twenty-eight days after a request in writing had been made to him by persons who had been duly appointed new trustees to transfer the stock to them. The court held, that they were persons absolutely entitled to the stock within the meaning of this act, and ordered the stock to be transferred to them. (Ex parte Russell, 1 Sim., N. S. 404.) A trustee having refused to transfer certain shares to new trustees duly appointed, a notice was served upon him under sect. 24, and on a petition being afterwards presented the court made a vesting order. (Re Baxter's Will, 2 Sm. & G. App. v.) And where the executor of a surviving trustee had not proved the will, and had neglected to transfer stock on the requisition of new trustees appointed by the court, an order was made vesting the right to transfer stock in the new trustees. (Re Ellis's Settlement, 24 Beav. 426.)

(n) A petition under sects. 23 and 24 need not be served on the recusant trustee. (Re Baxter's Will, 2 Sm. & G. App. v.; Ex parte Armstrong, 16 Sim. 296; see Re Mount, 24 L. T., N. S. 290, post.)

The case of a trustee refusing to obey an order of the Court of Chancery was not provided for by this act. (Mackenzie v. Mackenzie, 5 De G. & Sm. 338.) See now 15 & 16 Vict. c. 55, ss. 4, 5, post.

The case of a trustee refusing or neglecting to convey lands is provided for by 15 & 16 Vict. c. 55, s. 2, post.

For forms of orders under this section, see Seton, 797, 798.

13 & 14 Vict.

c. 60, s. 24.

of stock refuses

over dividends.

24. Where any one of the trustees of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such When one of chose in action according to the directions of the person abso- several trustees lutely entitled thereto, for the space of twenty-eight days next to transfer or after a request in writing for that purpose shall have been made receive and pay to him or her by such person, it shall be lawful for the Court of Chancery 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, in the other trustee or trustees of the said stock or chose in action, or in any person or persons whom the said court may appoint jointly with such other trustee or trustees (o).

(0) Where two executors of a surviving trustee refused to transfer a trust fund to the persons absolutely entitled, and the third executor was a lunatic, it was held by James, V.-C., that a vesting order could not be made under this section. (Re Nicholl's Trusts, 21 L. T., N. S. 818.) On appeal, Giffard, L. J., held that a petition in lunacy must be presented, and expressed an opinion that even if the lunatic executor had been sui juris, a vesting order could not have been made by the Court of Chancery. (18 W. R. 443.) On a petition presented in lunacy and chancery, an order was subsequently made vesting the right to transfer the shares in the persons beneficially entitled. (Re White, L. R., 5 Ch. 698.) See further the note to sect. 23.

For forms of orders under this section, see Seton, 797, 798.

name of a de

25. When any stock shall be standing in the sole name of a when stock is deceased person, and his or her personal representative shall be standing in the out of the jurisdiction of the Court of Chancery, or cannot be ceased person. found, or it shall be uncertain whether such personal representative be living or dead, or such personal representative shall neglect or refuse to transfer such stock, or receive the dividends or income thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person entitled as aforesaid, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said court may appoint (p).

(p) See Re Ellis's Settlement, quoted under sect. 23, ante, p. 662; and Cockell v. Pugh, 6 Beav. 293, Re Lunn's Charity, 15 Sim. 464, decided under 11 Geo. 4 & 1 Will. 4, c. 60. Sce also 15 & 16 Vict. c. 55, s. 6, post. For form of order, see Seton, 798.

vesting the legal

26. Where any order shall have been made under any of the Effect of an order provisions of this act vesting the right to any stock (q) in any right to transfer person or persons appointed by the Lord Chancellor, intrusted stock. as aforesaid, or the Court of Chancery, such legal right shall vest accordingly, and thereupon the person or persons so appointed are hereby authorized and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order; and the Bank of England, and all companies and asso

13 & 14 Vict. c. 60, s. 26.

Effect of an order vesting legal right in a chose in action.

Effect of an order

vesting copy hold ing any person to

lands, or appoint

convey copyhold lands.

ciations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order as the said Bank of England, or such companies, associations or persons, would have been bound and compellable to comply with the requisitions of the person in whose place such appointment shall have been made, and shall be equally indemnified in complying with the requisition of such person or persons so appointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made; and after notice in writing of any such order of the Lord Chancellor, intrusted as aforesaid, or of the Court of Chancery, concerning any stock, shall have been given, it shall not be lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose place an appointment shall have been made in any matter whatever relating to the transfer of such stock, or the payment of the dividends or produce thereof.

(4) See sect. 35, post. Where an order was made on petition, directing that the right to certain sums of stock should vest in new trustees appointed under the petition, and that this right should be exercised in obtaining transfers of the sums of stock into their own names, it was held, that in point of form the order should have vested in the trustees the right to call for a transfer" of the stock. (Re Smyth's Settlement, 2 De G. & Sm. 781; 4 De G. & Sm. 499.) See now 15 & 16 Vict. c. 55, s. 6, post.

66

27. Where any order shall have been made under the provisions of this act, either by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, vesting the legal right to sue for or recover any chose in action or any interest in respect thereof in any person or persons, such legal right shall vest accordingly, and thereupon it shall be lawful for the person or persons so appointed to carry on, commence and prosecute, in his or their own name or names, any action, suit or other proceeding at law or in equity for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action.

28. Whensoever, under any of the provisions of this act, an order shall be made, either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, vesting any copyhold or customary lands in any person or persons, and such order shall be made with the consent of the lord or lady of the manor whereof such lands are holden, then the lands shall, without any surrender or admittance in respect thereof, vest accordingly (s): and whenever under any of the provisions of this act, an order shall be made either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, appointing any person or persons to convey or assign any copyhold or customary lands, it shall be lawful for such person or persons to do all acts and execute all instruments for the purpose of completing

c. 60, s. 28.

the assurance of such lands; and all such acts and instruments 13 & 14 Vict. so done and executed shall have the same effect, and every lord and lady of the manor, and every other person, shall, subject to the customs of the manor and the usual payments, be equally bound and compellable to make admittance to such lands, and to do all other acts, for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments (t).

lord.

(s) An order vesting copyhold lands can be made without the consent Order vesting of the lord. Thus, where a trustee of copyholds devised them to A. (not copyholds withhis customary heir), and A. disclaimed, the court, upon the petition of the out consent of cestui que trusts, which was not served on the lord, made an order appointing B. trustee in the place of the testator, and vesting in B. all the estate in the copy holds which would have vested in A., if A. had accepted the devise. It was held, that such an order was properly made without the consent of the lord, and did not prejudice his right to fines. (Paterson v. Paterson, L. R., 2 Eq. 31; Re Flitcroft, 1 Jur., N. S. 418; Re Hurst, Seton, 799. See, however, Cooper v. Jones, 2 Jur., N. S. 59; 25 L. J., Ch. 240, and Re Howard, 3 W. R. 605.) Where such an order is made without the lord's consent, the person in whom the property is vested applies for admission as an ordinary surrenderee would have done. (Lewin, 765, n. (a). See the remarks of Bovill, C. J., Bristow v. Booth, L. R., 5 C. P. 92.)

Where a vesting order is made with the lord's consent, surrender and with consent of admission are unnecessary. For the purpose of consenting, it is not lord. necessary for the lord to appear in court; à verified certificate of his consent is sufficient. (Ayles v. Cox, 17 Beav. 584. See Cooper v. Jones, 25 L. J., Ch. 240.) For form of consent and verifying affidavit, sce Dan. Ch. Forms, 2052.

For form of order vesting copyholds, see Seton, 798; Re Crowe's Mortgage, L. R., 13 Eq. 26.

(t) Where a person is appointed to convey copyholds, the person so appointed must surrender, and the surrenderee must be admitted. (Lewin, 765, n. (a).) The Court of Queen's Bench will give effect to such an order by a mandamus to the lord. (Re Lane and Irving, 12 W. R. 710.) Persons have been appointed to convey, in Re Collingwood's Trusts, 6 W. R. 536; Re Cuming, L. R., 5 Ch. 72. For form of order appointing a person to convey, see Re Hey, 9 Hare, 221.

Order appointing

person to convey copyholds.

made for sale of

29. When a decree shall have been made by any court of When a decree is equity directing the sale of any lands for the payment of the real estate for debts of a deceased person, every person seised or possessed of payment of debts. such lands, or entitled to a contingent right therein, as heir or under the will of such deceased debtor, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this act; and the Court of Chancery is hereby empowered to make an order wholly discharging the contingent right, under the will of such deceased debtor, of any unborn person (u).

(u) Where part of a testator's real estate had been contracted to be sold by order of the court, to provide a fund for payment of costs, it was held, that the 29th and 30th sections did not apply. (Weston v. Filer, 5 De G. & Sm. 608; 16 Jur. 1010.) This difficulty has been removed by 15 & 16 Vict. c. 55, s. 1, post. (See Wake v. Wake, 17 Jur. 545.)

Where copy holds devised to an infant for life, remainder to his first and other sons in tail, were decreed to be sold to pay the debts of the testator, and an order was made in the cause, pursuant to the i Will. 4, c. 47, that

13 & 14 Vict. c. 60, s. 29.

Court to declare what parties are trustees of lands

the guardian of the infant should surrender them to the purchaser: it was held, that the purchaser was entitled to require that an order should be made discharging the contingent rights of the unborn issue of the infant under this section. (Wood v. Beetlestone, 1 Kay & J. 213.)

For forms of orders under this section, see Seton, 799, 800. Applications under this and the following section must be made in chambers. (Cous. Ord. XXXV. 1 (4); Clark v. Ward, 14 W. R. 241.) As to which, see Dan. Ch. Pr. 1175 et seq., 5th ed.

Provisions for facilitating the conveyance of the lands of a deceased debtor, where a decree for sale has been made, are also contained in 11 Geo. 4 & 1 Will. 4, c. 47, ss. 11, 12, ante, pp. 472, 473.

30. Where any decree shall be made by any court of equity for the specific performance (x) of a contract concerning any comprised in any lands, or for the partition (y) or exchange of any lands, or

suit, and as to

the interests of persons unborn.

Specific perform

ance.

Partition.

generally when any decree shall be made for the conveyance or assignment of any lands (z), either in cases arising out of the doctrine of election or otherwise, it shall be lawful for the said court to declare, that any of the parties to the said suit wherein such decree is made are trustees of such lands or any part thereof, within the meaning of this act, or to declare concerning the interests of unborn persons who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased, who was during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of this act, and thereupon it shall be lawful for the said Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights and interests of such persons, born or unborn, as the said court or the said Lord Chancellor might under the provisions of this act make concerning the estates, rights and interests of trustees born or unborn (a).

(a) A donee of a power of jointuring under settlement was ordered, in a suit for specific performance instituted by his wife, to execute the power by a deed to be approved by the master, whereby 1,0007. per annum was to be appointed as the plaintiff's jointure. On his refusal to obey the decree, it was held, that under the Trustee Acts, 1850, 1852, he might be declared a trustee of all the rights, interests, estates and property acquired by him under the settlement, and the court appointed a person to execute the requisite deeds in his place under this act. (Wellesley v. Wellesley, 4 De G., M. & G. 537; 21 L. J., Ch. 966.)

(y) In a partition suit, instead of giving an infant entitled to a share a day to show cause, the court may declare him to be a trustee of such parts of the property as are allotted to other parties. (Bowra v. Wright, 4 De G. & Sm. 265.) Where in a suit for partition of lands, to which a lunatic was entitled to an undivided share, a partition had been made and the lunatic had been declared a trustee within this act: it was held, on a petition by the owner of the other undivided moiety, that the court had jurisdiction to carry out the petition by a vesting order under this act, notwithstanding the doubt (Re Bloomar, 2 De G. & J. 88) attributed to the court. (Re Molyneux, 10 W. R. 512.) And where a decree had been made for partition of lands, an undivided share in which was vested in a lunatic as tenant in tail, an order was made in lunacy and chancery directing the committee to execute all necessary assurances for giving effect to the partition. (Re Sherard, 1 De G., J. & S. 421.) Where the shares of the parties to a