paying money into court, and investing money paid into court, see the Chancery Funds Rules, 1872 (L. R., 7 Ch. xxxv); and the Practice under them by Field and Dunn, pp. 12, 24. 49. Where, in any suit commenced or to be commenced in the Court of Chancery, it shall be made to appear to the court by affidavit that diligent search and inquiry has been made after any person made a defendant, who is only a trustee, to serve him with the process of the court, and that he cannot be found, it shall be lawful for the said court to hear and determine such cause, and to make such absolute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the same manner as if such trustee had been duly served with the process of the court, and had appeared and filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of such cause: provided always, that no such decree shall bind, affect, or in anywise prejudice any person against whom the same shall be made, without service of process upon him as aforesaid, his heirs, executors, or administrators, for or in respect of any estate, right or interest which such person shall have at the time of making such decree for his own use and benefit, or otherwise than as a trustee as aforesaid (o). (0) The court will order the clerk of records and writs to certify that a cause is fit to be set down, where a defendant trustee who has not entered an appearance cannot be found. (Westhead v. Sale, 6 W. R. 52; Burrell v. Maxwell, 25 L. T., N. S. 655.) 13 & 14 Vict. c. 60, s. 49. Court may make a decree in the absence of a trustee. 50. When any person shall, under the provisions of this act, Powers of the apply to one of the masters of the Court of Chancery in the master. first instance, and adduce evidence for the purpose of obtaining the certificate of such master as a foundation for an order of the said Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, it shall be lawful for the said master to order service of such application upon any person, or to dismiss such application, and to direct that the costs of any persons consequent thereon shall be paid by the person making the same; and all orders of the master under this act shall be enforced by the same process as orders of the court made in any suit against a party thereto. paid out of the estate. 51. The Lord Chancellor, intrusted as aforesaid, and the Costs may be Court of Chaneery, may order the costs and expenses of and relating to the petitions, orders, directions, conveyances, assignments, and transfers to be made in pursuance of this act, or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the said Lord Chancellor or court shall think proper (p). (p) Under a power in a settlement of real estate, a new trustee was duly Mode of raising appointed in the place of a sole trustee deceased. The heir of the de- costs. ceased trustee could not be found, and on petition an order was made to vest the estate in the new trustee, and that upon consent he might pay the costs of the proceedings, and that such costs with interest at 41. per cent. 13 & 14 Vict. c. 60, s. 51. Costs by whom payable. Costs against respondents. Between vendor and purchaser. Commission con cerning person of unsound mind. Suit may be directed. might form a charge on the inheritance. (Ex parte Davies, 16 Jur. 882.) Trustees were authorized to raise the costs of an appointment of new trustees by a mortgage of the realty of which the trust estate entirely consisted. (Re Crabtree, 14 W. R. 497.) On the appointment of new trustees of two trust funds, the costs will be paid out of each fund in proportion to the value of the funds. (Re Grant's Trusts, 2 Johns. & H. 754.) If the application be solely for the benefit of a life tenant, he will pay the costs; but the costs of an application for the general benefit of the estate, such as the appointment of new trustees, should be defrayed out of corpus, and as between solicitor and client. (Seton, 817, quoting Re Parby, 29 L. T. 72; Carter v. Sebright, 26 Beav. 374.) Where a legacy had been bequeathed to a sole trustee upon trust for a tenant for life and then for reversioners absolutely, the costs of a petition by the reversioners for the appointment of an additional trustee were ordered to be paid by the petitioners. (Re Brackenbury's Trusts, L. R., 10 Eq. 45.) Where two petitions for the appointment of new trustees of the same will were presented on the same day by different beneficiaries, but the earlier one only prayed a reference to chambers to make the appointment, while the later one proposed the appointment of two persons whose fitness was proved in the usual way; Bacon, V.-C., appointed the two persons proposed, and directed that the costs of the second petition only should be borne by the estate. (Re Pring, 55 Law Times, W. N. 27.) Upon a petition under this act for the appointment of a new trustee, the court has no jurisdiction to award costs adversely against third parties cited to appear as respondents to the petition. (Re Primrose, 23 Beav. 590.) But where a respondent introduced unnecessary charges into his affidavit, he was ordered to pay the costs of such charges. (Re Willis, 12 W. R. 97.) And where a trustee improperly opposed a petition for the appointment of new trustees, he was ordered to pay his own costs of the opposition, and the costs occasioned to the other parties by his opposition were deducted from the costs payable to the trustee. (Re Wiseman, 18 W. R. 574.) As between vendor and purchaser, the costs of proceedings under this act should be paid by the vendor. (Bradley v. Munton, 16 Beav. 294; Ayles v. Cox, 17 Beav. 584.) As to the costs of proceedings under this act occasioned by the Innacy of a trustee, or of a mortgagee or his heir, see the note to sect. 3, ante, p. 651. 52. Upon any petition being presented under this act to the Lord Chancellor, intrusted as aforesaid, concerning a person of unsound mind, it shall be lawful for the said Lord Chancellor, should he so think fit, to direct that a commission in the nature of a writ de lunatico inquirendo shall issue concerning such person, and to postpone making any order upon such petition until a return shall have been made to such commission (q). (q) As to the order for inquiry and proceedings thereon, see Elmer, Pr. Lun. 10 et seq., 2nd edit. 53. Upon any petition under this act being presented to the Lord Chancellor, intrusted as aforesaid, or to the Court of Chancery, it shall be lawful for the said Lord Chancellor or the said Court of Chancery to postpone making any order upon such petition until the right of the petitioner or petitioners shall have been declared in a suit duly instituted for that purpose (r). () Two partners in a brewery, part of the property of which consisted of freehold and copyhold estates, covenanted that the survivor should have the option of purchasing the share of the deceased partner in the property of the partnership at a valuation, and the survivor accordingly exercised such option, and paid to the executors of the deceased partner the amount at which the share was valued. The share of the deceased partner and his legal estate in part of the freehold and copyhold estates of the partnership descended or became vested in his infant heir: but the court refused upon petition or motion under this act, without suit, to declare the infant heir a trustee for the surviving partner. (Re Burt, 9 Hare, 289.) In Re Carpenter, Kay, 418, Wood, V.-C., refused to make an order without suit. Suits were directed in Re Collinson, 3 De G., M. & G. 409; Re Weeding, 4 Jur., N. S. 707. 13 & 14 Vict. c. 60, s. 53. extend to pro 54. The powers and authorities given by this act to the Powers of Court Court of Chancery in England shall extend to all lands and of Chancery to personal estate within the dominions, plantations, and colonies perty in the belonging to her Majesty (except Scotland) (s). (8) The Lord Chancellor of Great Britain sitting in lunacy has not a concurrent jurisdiction over lands in Ireland. (Re Davies, 3 Mac. & G. 278.) But vesting orders have been made by the English Court of Chancery as to lands in Ireland (Re Hewitt, 6 W. R. 537; Re Taitt, W. N. 1870, p. 25), and in Canada (Re Schofield, 24 L. T. 322; Re Groom, 11 L. T., N. S. 336). The provisions of the Trustee Acts have been extended to the private property of the sovereign in England and Ireland. (25 & 26 Vict. c. 37, s. 10.) 55. The powers and authorities given by this act to the Court of Chancery in England shall and may be exercised in like manner, and are hereby given and extended to the Court of Chancery in Ireland with respect to all lands and personal estate in Ireland. 56. The powers and authorities given by this act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall extend to all lands and personal estate within any of the dominions, plantations, and colonies belonging to her Majesty (except Scotland and Ireland). 57. The powers and authorities given by this act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall and may be exercised in like manner by and are hereby given to the Lord Chancellor of Ireland, intrusted as aforesaid, with respect to all lands and personal estate in Ireland (t), (t) See Re Smith's Trusts, I. R., 4 Eq. 180. colonies. 58. In citing this act in other acts of parliament, and in legal short title. instruments, and in legal proceedings, it shall be sufficient to use the expression, "The Trustee Act, 1850." 59. This act shall come into operation on the first day of Commencement of November, one thousand eight hundred and fifty. act. 60. This act may be amended or repealed by any act to be Act may be passed in this session of parliament. amended, &c. THE TRUSTEE ACT EXTENSION. 15 & 16 VICTORIA, c. 55. An Act to extend the Provisions of "The Trustee Act, 1850." [30th June, 1852.] 15 & 16 Vict. WHEREAS it is expedient to extend the provisions of the Trustee Act, 1850: be it therefore enacted, c. 55, s. 1. 1. When any decree or order shall have been made by any court of equity directing the sale of any lands for any purpose whatever, every person seised or possessed of such land, or entitled to a contingent right therein, being a party to the suit or proceeding in which such decree or order shall have been made, and bound thereby, or, being otherwise bound by such decree or order, shall be deemed to be so seised or possessed or entitled (as the case may be) upon a trust within the meaning of the Trustee Act, 1850; and in every such case it shall be lawful for the Court of Chancery, if the said court shall think it expedient for the purpose of carrying such sale into effect, to make an order vesting such lands or any part thereof, for such estate as the court shall think fit, either in any purchaser or in such other person as the court shall direct; and every such order shall have the same effect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assignments of such lands for such estate (a). (a) Where a sale has been ordered by decree of property, in which infant and possible unborn children are interested, though such decree was made before the passing of this act, and though the purpose of the sale is not confined to the payment of debts, the court has authority under the Trustee Act, 1850, and this act taken together to make a vesting order. (Wake v. Wake, 17 Jur. 545.) See further the note to 13 & 14 Vict. c. 60, s. 29, ante, p. 665. 2. That sections numbered seventeen and eighteen in the Queen's printer's copy of the Trustee Act, 1850, be repealed; and in every case where any person is or shall be jointly or solely seised or possessed of any lands or entitled to a contingent right therein upon any trust, and a demand shall have been made upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly-authorized agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be lawful for the Court of Chancery, if the said court shall be satisfied that such trustee has wilfully refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person, in such manner and for such estate as the court shall direct, or releasing such contingent right in such manner as the court shall direct; and the said order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands, or a release of such right, in the same manner and for the same estate (b). 15 & 16 Vict. c. 55, 8. 2. (b) An order has been made under this section to defeat an attempt at Cases under this extortion on the part of the trustee. (Re O'Donnell's Trust, 19 W. R. section. 522.) By a decree in a suit A. was declared a trustee of leaseholds for the plaintiff, and ordered to assign the premises to her, but he refused to execute the deed. Notice of motion for an order directing A. to execute the deed within four days, or for a vesting order, was served on A., who did not appear. The motion having stood over for twenty-eight days, a vesting order was made under this section on an ex parte application. (Knight v. Knight, W. N. 1866, p. 114.) And where the defendant had been declared a trustee for the purpose of executing a lease to the plaintiff, and neglected to do so for twenty-eight days after formal demand, an order was made that on the consideration money being brought into court, the chief clerk should execute the lease. (Derham v. Kiernan, I. R., 5 Eq. 217.) See also Warrender v. Foster, Seton, 822. Where a mortgagor covenanted to surrender copyholds to his mortgagee, and neglected to make such surrender for twenty-eight days after demand and tender of engrossment by mortgagee, a vesting order was made on the petition of the mortgagee, without service on the mortgagor being required. (Re Crowe's Mortgage, L. R., 13 Eq. 26.) See also, as to the instrument to be tendered in the case of copyholds, Rowley v. Adams, 14 Beav. 130. An order vesting lands, which were subject to an annuity, was made under this section, without requiring service on the annuitant. (Re Winteringham's Trust, 3 W. R. 578.) The case of trustees refusing or neglecting to transfer stock is provided for by 13 & 14 Vict. c. 60, ss. 23, 24. For form of order under this section, see Seton, 809. order for the transfer or receipt an infant trustee. 3. When any infant shall be solely entitled to any stock upon Power to make an any trust, it shall be lawful for the Court of Chancery to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof; and when any infant shall be entitled jointly with any other person or persons to any stock upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in him or them, together with any other person or persons the said court may appoint (c). (c) This section of the act is supposed to have been introduced in consequence of the decision, that the court had no jurisdiction to make a vesting order with regard to stock held by an infant sole trustee, who was out of the jurisdiction of the court. (Cramer v. Cramer, 5 De G. & S. 312.) Where a father transferred stock into the joint names of himself, his wife and an infant child, and the evidence showed that no trust was intended, and that the transfer was made under a mistake, the court declared the infant a trustee for the father and made an order under this section. |