22 & 23 Vict. c. 35, s. 30. Who may apply. Form of petition &c. Service. or the assets of any testator or intestate, such application to be served upon or the hearing thereof to be attended by all persons interested in such application, or such of them as the said judge shall think expedient; and the trustee, executor or administrator, acting upon the opinion, advice or direction given by the said judge, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor or administrator in the subject-matter of the said application: provided nevertheless, that this act shall not extend to indemnify any trustee, executor or administrator, in respect of any act done in accordance with such opinion, advice or direction as aforesaid, if such trustee, executor or administrator, shall have been guilty of any fraud or wilful concealment or misrepresentation in obtaining such opinion, advice and direction; and the costs of such application as aforesaid shall be in the discretion of the judge to whom the said application shall be made (s). (q) An order has been made under this section on the petition of a cestui que trust (Re Ward, 14 W. R. 96) and of one of several trustees (Re Muggeridge, Johns. 625). Where the domicile of a testator and one of the trustees of his will was Irish, and the domicile of the other trustee and of the tenant for life under the will was English, and the trustees (there having been no previous application to the Irish Court of Chancery) made an application under this section to the English Court of Chancery with reference to certain investments, the court made the order. (Re French, L. R., 15 Eq. 68.) (r) In applications under this section the petition or statement shall be signed by counsel, and the judge by whom it is to be answered may require the petitioner or applicant to attend him by counsel either in chambers or in court where he deems it necessary to have the assistance of counsel. (23 & 24 Vict. c. 38, s. 9, post, p. 726.) All petitions, summonses, statements, affidavits and other written proceedings under this section shall be intituled in the matter of the act, and in the matter of the particular trust, will or administration; and every such petition and statement shall be marked in manner directed by the 6th of the Consolidated General Orders, rule 6; and every such petition or statement shall state the facts concisely, and shall be divided into paragraphs numbered consecutively; and every such summons shall, except as to its title, be in the form of the general summons in schedule (K.), No. 1, subjoined to the Consolidated General Orders. (Order, March 20, 1860, rule 1.) Morgan, 618, 4th ed. (For form of petition, summons and statement, see Dan. Ch. Forms, 2177-2179; and for forms of orders, see Seton, 773, 774.) At the time when any such summons is sealed, the statement upon which the same is grounded shall be left at the chambers of the judge, and shall on the conclusion of the proceedings be transmitted to the registrar by the chief clerk with the minutes of the opinion, advice or direction given by the judge, and the registrar shall cause such statement to be transmitted to the Report Office to be there filed. (Rule 2, Ib.) Every such petition or summons shall be served seven clear days before the hearing thereof, unless the person served shall consent to a shorter time. (Rule 3, Ib.) Wood, V.-C., laid down that a petition under this section ought not in the first instance to be served upon any one, but an application should be made in chambers as to the persons upon whom the petition should be served. (Re Muggeridge, Johns. 625.) But Kindersley, V.-C., decided that the petitioners must serve such persons as they think proper, and must not bring on the petition merely in order to ascertain who ought to be served (Re Green, 6 Jur., N. S. 530; 29 L. J., Ch. 716; 8 W. R. 403); and the usual foot note as to service should be added. (Ib.) From the words of the section it seems that the petition should be served 22 & 23 Vict. c. 35, s. 30. on all persons interested in the application. Where trustees of a will made an application with reference to a sale of certain mining and bank shares of the testator, Malins, V.-C., held the children need not be served. (Re Tuck, W. N. 1869, p. 15; and see Re French, L. R., 15 Eq. 68.) The opinion, advice or direction of the judge shall be passed and entered Passing and enterand remain as of record in the same manner as any order made by the court ing opinion of or judge, and the same shall be termed "a judicial opinion," or "judicial judge. advice," or "judicial direction," as the case may be. (Order, March 20, 1860, rule 4.) As to passing and entering orders, see Dan. Ch. Pr. 869 et seq. The fees of court and the fees and allowances to solicitors on proceedings Costs. under this section shall be the same as are now payable under the Consolidated General Orders 38 and 39, and by the practice of the court for business of a similar nature. (Rule 5, Ib.; Morgan, 619, 4th ed.) (8) On such a petition the court will not direct an inquiry at chambers. (Re Mockett, Johns. 628.) No affidavits can be read on such a petition, (Re Muggeridge, Johns. 625; Re Barrington, 1 J. & H. 142.) The court will not give an opinion under this section upon matters of detail which cannot be properly dealt with without the superintendence of the court and the assistance of affidavits. Therefore, where trustees of a settlement having a power of purchasing lands on the request of tenants for life, desired the opinion of the court as to the propriety of applying 1,2007. on such request in repairs and permanent improvement, no answer was given on the petition. (Re Barrington, 1 J. & H. 142.) Under this section court will not direct an inquiry, nor receive affidavits, nor deal with matters of detail, The court will not give an opinion on an hypothesis: therefore, where or an hypothesis. a petition was presented under this section to obtain the advice of the court as to the mode in which calls not yet made on account of certain shares specifically bequeathed by the testator were to be met, the court ordered the petition to stand over till the call had been actually made (Re Box, 11 W. R. 945); but after a call had been made, the court dealt with the question. (1 H. & M. 552.) Questions of construction were at first in some cases decided upon peti- Questions of contions under this section. (Re Petts, 27 Beav. 576; Re Michel, 28 Beav. struction. 39; Re Davies, 29 Beav. 93; Re Jacob, id. 402; Re Green, 1 Dr. & Sm. 68; Re Elmore, 9 W. R. 66; Re Lang, id. 589.) But Kindersley, V.-C., laid down that the court would not upon a petition presented by a trustee or an executor under this section for the opinion, advice, or direction of the court, construe an instrument or make any order affecting the rights of parties to property, and that such petitions should relate only to the management and investment of trust property. (Re Lorenz, 1 Dr. & Sm. 401.) The Master of the Rolls has refused, on a petition under this section, to construe an instrument (Re Hooper, 29 Beav. 656), or to decide whether an intestate's estate was liable upon a covenant to be implied in his marriage settlement (Re Evans, 30 Beav. 232); and Wood, V.-C., has laid down that where an important and difficult question is involved, the proper course is to file a bill instead of presenting a petition. (Re Mockett, Johns. 628; Re Barrington, 1 J. & H. 142; Re Burnett, 10 Jur., N. S. 1099; Re Box, 1 H. & M. 552.) See, however, Re Ware, 20 W. R. 142, when, under the circumstances, Bacon, V.-C., decided a question of construction on a petition under this section. Suits were subsequently instituted, and the questions of construction determined in that manner in Re Mockett, Johns. 628; Re Barrington, i J. & H. 142; see Marsh v. Att.-Gen., 2 J. & H. 61. On petition under this section the court has decided questions as to the Questions decided appointment of foreign trustees. (Re Long, 17 W. R. 218; Re Smith, under this section. 20 W. R. 695.) As to the power of trustees to mortgage with power of sale (Re Chawner, L. R., 8 Eq. 569); to lease (Re Shaw, L. R., 12 Eq. 124); to fix reserve biddings on a sale by auction (Re Peyton, 30 Beav. 252), and to lay out personalty in improving the estate (Re Dennis, 5 Jur., N. S. 1388; Re Hotham, L. R., 12 Eq. 76; Re Pearson, 21 W. R. 401; and see Re Barrington, 1 J. & H. 142). As to investments (Re Knowles, 18 L. T., N. S. 809; Re Peyton, L. R., 7 Eq. 463; Re Langdale, L. R., 10 Eq. 39). As to the exercise of a power of advancement (Re Long, 17 22 & 23 Vict. c. 35, s. 30. Nature of the indemnity. Section is retrospective. Every trust instrument to be demnity and re imbursement of the trustees. W. R. 218; Re Kershaw, L. R., 6 Eq. 322) and maintenance (Re Tibbs, 17 W. R. 304). As to the appropriation and payment of legacies (Re Murray, W. N. 1868, p. 195; Re Hellmann, L. R., 2 Eq. 363). As to the distribution of the estate (Re Green, 2 De G., F. & J. 121). And a question of apportionment (Re Rogers, 1 Dr. & Sm. 338). The opinion of the court upon a petition under this section gives an indemnity to the trustees only upon the facts stated in the petition, is subject to no appeal, and will not preclude the filing a bill. (Re Mockett, Johns. 628.) This section is retrospective. (Re Simpson, 1 J. & H. 89.) 31. Every deed, will, or other instrument creating a trust, deemed to contain either expressly or by implication, shall, without prejudice to clauses for the in- the clauses actually contained therein, be deemed to contain a clause in the words or to the effect following; that is to say, "That the trustees or trustee for the time being of the said deed, will, or other instrument, shall be respectively chargeable only for such monies, stocks, funds, and securities, as they shall respectively actually receive, notwithstanding their respectively signing any receipt for the sake of conformity, and shall be answerable and accountable only for their own acts, receipts, neglects, or defaults, and not for those of each other, nor for any banker, broker, or other person, with whom any trust monies or securities may be deposited, nor for the insufficiency or deficiency of any stocks, funds, or securities, nor for any other loss, unless the same shall happen through their own wilful default respectively; and also that it shall be lawful for the trustees or trustee for the time being of the said deed, will, or other instrument, to reimburse themselves, or himself, or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers of the said deed, will, or other instrument ” (t). Operation of usual indemnity clause. As to investments by trustees. (t) The usual indemnity clause "while it informs the trustee of the general doctrines of the court, adds nothing to his security against the liabilities of his office." (Lewin on Trusts, 225, 5th ed. See further as to this clause, 3 Davidson, Conv. 246 et seq., 3rd ed.) A clause is now usually inserted in settlements supplemental to the indemnity clause, empowering trustees to lend on securities with less than a marketable title; as to which see 3 Davidson, Conv. 720, 3rd ed. As to the liability of a trustee for the acts and receipts of his co-trustee, see note to Townley v. Sherborne, and Brice v. Stokes, 2 L. C., Eq. 873 et seq., 4th ed. A testator provided that each trustee should be answerable only for losses arising from his own default and not for involuntary acts, or for the acts or defaults of his co-trustees or co-trustee, and particularly that any trustee who should pay over to his co-trustee, or should concur in any act enabling him to receive any moneys for the general purposes of the will, or for any definite purpose authorized by the will, should not be obliged to see to the due application thereof, nor be rendered responsible by express notice of misapplication of the moneys; but that this clause should not restrict the right of any trustee to require an account from his co-trustee or to make him replace moneys misapplied. Two trustees handed over the trust fund for investment to a third who misapplied it: it was held that the two were not liable to make good the fund. (Wilkins v. Hogg, 3 Giff. 116; affirmed by Lord Westbury, 10 W. R. 47. See 4 Davidson, Conv. 52, 2nd ed.) 32. When a trustee, executor, or administrator shall (u) not, by some instruments creating his trust, be expressly forbidden to invest any trust fund on real securities, in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India stock (v), it shall be lawful for such trustee, executor, or administrator, to invest such trust fund on such securities or stock; and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper (x). 22 & 23 Vict. c. 35, s. 32. (u) It was held that this section was not retrospective (Re Miles, 27 Section retrospecBeav. 579), but it has since been enacted that the section shall operate tive. retrospectively. (23 & 24 Vict. c. 38, s. 12, post. See Hume v. Richard son, there quoted.) Where the trust fund is already invested in Bank Annuities, and the trustee has no power independently of the act to vary investments, this section does not apply. (Re Warde, 2 J. & H. 191.) (v) It was doubted whether the words "East India Stock" included East India Stock. East India Stock created after the 13th August, 1859. (Re Colne Valley and Halstead R. Co., 1 De G., F. & J. 53; Re Fromon, 8 W. R. 272.) But by 30 & 31 Vict. c. 132, s. 1, it was enacted that the words "East India Stock," in the said act passed in the session holden in the twenty-second and twenty-third years of her Majesty, chapter thirty-five, shall include and express as well the East India Stock, which existed previously to the thirteenth day of August, one thousand eight hundred and fifty-nine, when the said act received the assent of her Majesty, as East India Stock, charged on the revenues of India, and created under and by virtue of any act or acts of parliament which received her Majesty's assent on or after the thirteenth day of August, one thousand eight hundred and fifty-nine : and it shall be lawful for every trustee, executor or administrator, to invest any trust fund in his possession or under his control in the stock created by the last-mentioned act or acts to the same extent, and for the same purposes and objects, as he can now invest such trust fund in the East India Stock, which existed previously to the thirteenth day of August, one thousand eight hundred and fifty-nine. (See also 32 & 33 Vict. c. 106, s. 16.) (a) Where an application was made for the opinion of the court whether under a trust for investment in government or other approved securities, the trustees would be justified in investing in East India Stock or railway debentures, or on mortgage of freeholds, copyholds or leaseholds, the court approved of an investment on freeholds in England or Wales, but declined to give any answer sanctioning investments in the other securities mentioned. (Re Simson, 1 J. & H. 89.) As to investments by trustees generally, see Lewin, 250 et seq., 5th ed., Investments by and 23 & 24 Vict. c. 38, ss. 10, 11, post. Trustees are empowered by trustees generally. 30 & 31 Vict. c. 132, s. 2 (when not forbidden by some instruments creating their trust) to invest trust funds in securities, the interest of which is guaranteed by parliament. And where trustees have power to invest trust funds in the mortgages or bonds of a railway or other company, they may invest the trust funds in the debenture stock of the company. (34 & 35 Vict. c. 27, s. 1. See also sect. 40 of 28 & 29 Vict. c. 78, which act has been amended by 33 & 34 Vict. c. 20.) As to the investment on real securities of trust funds, held for public and charitable purposes, see 33 & 34 Vict. c. 34. 33. This act shall not extend to Scotland. Act not to extend to Scotland. 23 & 24 Vict. c. 38, s. 6. Restriction of effect of waiver. Provision for cases of future and contingent uses. Sect. 24 of 22 & 28 tended to mort- Form of applying for advice of judge, &c. under FURTHER AMENDMENT OF LAW OF PROPERTY. 23 & 24 VICTORIA, C. 38. An Act to further amend the Law of Property. BE it enacted as follows: [The 1st, 2nd, 3rd, 4th and 5th sections of this act, as to the registration of judgments, are inserted ante, pp. 618–621.] 6. Where any actual waiver of the benefit of any covenant or condition in any lease on the part of any lessor, or his heirs, executors, administrators or assigns, shall be proved to have taken place after the passing of this act in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear (a). (a) As to waiver of forfeiture, see the notes to Duppa v. Mayo, 1 Wms. Saund. 443 et seq., ed. 1871. 7. Where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses, and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses, nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere (b). (b) As to the doctrine of scintilla juris, see Sugden, Powers, 18 et seq., 8th ed. 8. The section twenty-four (c) in the act of the session of the twenty-second and twenty-third of Queen Victoria, chapter thirty-five, shall be read and construed as if the words "or mortgagee" had followed the word "purchaser" in every place where the latter word is introduced in the said section. (c) Ante, p. 717. 9. Where any trustee, executor or administrator shall apply for the opinion, advice or direction of a judge of the court of sect. 30 of 22 & 23 Chancery under the thirtieth section of the act of the twentysecond and twenty-third of her present Majesty, chapter thirty Vict. c. 35. |