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No. 234.

of a trustee to

convey or release.

right therein upon any trust and a demand shall have been made 28 VICTORIA, upon such trustee by a person entitled to require a conveyance or assignment of such lands or a duly authorised agent of such last refusal or neglect mentioned person requiring such trustee to convey or assign the same or to release such contingent right, it shall be lawful for the Supreme 15 & 16 Vict. Court, if the said court shall be satisfied that such trustee has c. 55 s. 2. 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 assign ment of the lands or a release of such right in the same manner and for the same estate.

new trustees in

felony.

20. When any person is or shall be jointly or solely seised or Fower to appoint possessed of any lands or entitled to any stock upon any trust and lieu of persons such person has been or shall be convicted of felony, it shall be lawful convicted of for the Supreme Court upon proof of such conviction to appoint any I. s. 8. person to be a trustee in the place of such convict and to make an order for vesting such lands or the right to transfer such stock and to receive the dividends or income thereof in such person to be so appointed trustee; and such order shall have the same effect as to lands as if the convict trustee had been free from any disability and had duly executed a conveyance or assignment of his estate and interest in the same.

gagee.

c. 60 s. 19.

21. When any person() to whom any lands have been conveyed Power to convey by way of mortgage shall have died without having entered into the in place of mortpossession or into the receipt of the rents and profits thereof and the 18 & 14 Vict. money due in respect of such mortgage shall have been paid to a person entitled to receive the same or such last-mentioned person shall consent to an order for the re-conveyance of such lands, then in any of the following cases it shall be lawful for the Supreme 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 (that is to say):

When an heir or devisee of such mortgagee shall be out of
the jurisdiction of the said court or cannot be found.
When an heir or devisee of such mortgagee shall, upon a
demand by a person entitled to require a conveyance of
such lands or a duly authorised agent of such last-
mentioned person, have stated in writing that he will
not convey the same, or shall not convey the same for
the space of twenty-eight days next after a proper deed
for conveying such lands shall have been tendered to him
by a person entitled as aforesaid or a duly authorised
agent of such last-mentioned person.

When it shall be uncertain which of several devisees of such
mortgagee was the survivor.

(a) When a mortgagee of land dies leaving a will appointing executors, but not devising the legal estate in the land, an order will be made

under this section vesting in the executors the legal estate. In re McLeod, 1 W. & W. (Eq.), 133. See In re Montefiore, 5 A.J.R., 1.

28 VICTORIA,

No. 234.

Power to appoint

a person to convey in certain cases.

13 & 14 Vict. c. 60 s. 20.

When trustees of stock out of the jurisdiction.

Ib. s. 22.

When it shall be uncertain as to the survivor of several devisees of such mortgagee or as to the heir of such mortgagee whether he be living or dead.

When such mortgagee shall have died intestate as to such lands and without an heir or shall have died and it shall not be known who is his heir or devisee.

And the order of the said court made in any one of the foregoing cases shall have the same effect as if the heir or devisee or surviving devisee (as the case may be) had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

22. In every case where the Supreme Court shall under the provisions of this Act be enabled to make an order having the effect of a conveyance or assignment of any lands or having the effect of a release or disposition of the contingent right of any person or persons born or unborn, it shall also be lawful for the said court (should it be deemed more convenient) to make an order appointing a person to convey or assign such lands or release or dispose of such contingent right; and the conveyance or assignment or release or disposition of the person so appointed shall when in conformity with the terms of the order by which he is appointed have the same effect in conveying or assigning the lands or releasing or disposing of the contingent right as an order of the said court would in the particular case have had under the provisions of this Act. And in every case where the said court shall under the provisions of this Act be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the books of the savings bank in the city of Melbourne or any other chartered or incorporated banking company in the city of Melbourne or any other company or society established or to be established, it shall also be lawful for the said court (if it be deemed more convenient) to make an order directing the secretary or other proper officer of the said savings bank or any officer of such other banking company company or society at once to transfer or join in transferring the stock to the person or persons to be named in the order; and this Act shall be a full and complete indemnity and discharge to the trustees of the said savings bank and all other banking companies companies or societies and their officers and servants for all acts done or permitted to be done pursuant thereto.

23. When any person or persons shall be jointly entitled with any person out of the jurisdiction of the Supreme Court or who cannot be found or concerning whom it shall be uncertain whether he be living or dead to any stock or chose in action 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 or to sue for or 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 person or persons the said court may appoint. And when any sole trustee of any stock or chose in action shall be out of the jurisdiction of the said court or cannot be found or it shall be uncertain whether he be living or dead, it shall be lawful for the said court to made an order vesting the right to transfer such stock or to

receive the dividends or income thereof or to sue for and recover 28 VICTORIA, such chose in action or any interest in respect thereof in any person No. 234. or persons the said court may appoint.

transfer stock for

be made vesting

in such person as

24. Where any person shall neglect or refuse to transfer any on neglect to stock or to receive the dividends or income thereof or to sue for or twenty-eight recover any chose in action or any interest in respect thereof for the days order may space of twenty-eight days next after an order of the Supreme Court right to transfer for that purpose shall have been served upon him, it shall be lawful the court shall for the said court to make an order vesting all the right of such appoint. person to transfer such stock or to receive the dividends or income c. 55 s. 4. 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.

25. When any stock shall be standing in the sole name of a deceased person and his personal representative shall refuse or neglect to transfer such stock or receive the dividends or income thereof for the space of twenty-eight days next after an order of the Supreme Court for that purpose shall have been served upon him, 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 in any person or persons whom the said court may appoint.

15 & 16 Vict.

on like neglect fr

by executor

may be made.

Ib. s. 5.

13 & 14 Vict.

26. 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 out name of a destanding in the of the jurisdiction of the Supreme Court or cannot be found or it ceased person. shall be uncertain whether such personal representative be living or c. 60 s. 25. 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 Supreme Court to make an order vesting the right to transfer such stock or to receive the dividends or incomes thereof in any person or persons whom the said court may appoint.

comply with such

orders.

15 & 16 Vict. c. 55 s. 6.

27. When any order being or purporting to be under this Act Savings banks shall be made by the Supreme Court vesting the right to any stock and companies to or vesting the right to transfer any stock or vesting the right to call for the transfer of any stock in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly; and the person or persons so appointed shall be authorised 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 to the extent and in conformity with the terms of the order; and the said savings bank and all chartered and incorporated banking companies in the city of Melbourne and all other companies and associations 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 savings bank or such banking companies 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.

28 VICTORIA,

No. 234.

Indemnity to

bank and companies so obeying.

15 & 16 Vict. c. 55 s. 7.

Effect of an order vesting legal

in action.

13 & 14 Vict. c. 60 s. 27.

28. Every order made or to be made being or purporting to be made under this Act by the Supreme Court shall be a complete indemnity to the said savings bank and all such banking companies companies and associations whatsoever and all persons for any act done pursuant thereto; and it shall not be necessary for the said savings bank or such banking company company or association or person to enquire concerning the propriety of such order or whether the said court had jurisdiction to make the same.

29. Where any order shall have been made under the provisions right in a chose of this Act by the Supreme Court 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.

When a decree is made for sale of real estate for

Ib. s. 29.

30. When a decree shall have been made by the Supreme Court directing the sale of any lands for the payment of the debts of a payment of debts. deceased person, every person seised or possessed of 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 said court is hereby empowered to make an order wholly discharging the contingent right under the will of such deceased debtor of any unborn person.

Supreme Court

may make an

the estate in lieu

a party to the suit after a de

cree or order for

sale.

15 & 16 Vict. c. 55 s. 1.

31. When any decree or order shall have been made by the order for vesting Supreme Court directing the sale of any lands for any purpose whatof conveyance by ever, 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 this Act; and in every such case it shall be lawful for the said court (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.

Court to declare

trustees lands

32. Where any decree shall be made by the Supreme Court what parties are for the specific performance of a contract concerning any lands or comprised in any for the partition or exchange of any lands, or generally when any interests of per- decree shall be made for the conveyance or assignment of any lands

suit and is to

sons unborn.

13 & 14 Vict. c. 60 s. 30.

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 interest of unborn persons who might claim

No. 234.

under any party to the said suit or under the will or voluntary settle- 28 VICTOria, ment 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 court to make such order or orders as to the estates rights and interests of such persons born or unborn as the said court might under the provisions of this Act make concerning the estates rights and interests of trustees born or unborn.

be exercised.

33. It shall be lawful for the Supreme Court to make declara- Power to make tions and give directions concerning the manner in which the right directions how to any stock or chose in action vested under the provisions of this transfer stock to Act shall be exercised; and thereupon the person or persons in whom 13 & 14 Vict. such right shall be vested shall be compellable to obey such direc- c. 60 s. 31. tions and declarations by the same process as that by which other orders under this Act are enforced.

new trustees

existing trustee.

34. In all cases where it shall be expedient to appoint a new Power to the trustee and it shall be found inexpedient difficult or impracticable court to appoint to do so without the assistance of the Supreme Court, it shall be where there is no lawful for the said court() to make an order appointing a new 15 & 16 Vict. trustee or new trustees either in substitution for or in addition to c. 55 s. 9. any existing trustee or trustees and whether there be any existing trustee or not at the time of making such order.

trustees.

35. The person or persons who upon the making of such order Powers of new as last aforesaid shall be trustee or trustees shall have all the same 13 & 14 Vict. rights and powers as he or they would have had if appointed by c. 60 s. 33. decree in a suit duly instituted.

new trustees.

36. It shall be lawful for the Supreme Court upon making any Power to court order for appointing a new trustee or new trustees either by the to vest lands in same or by any subsequent order to direct that any lands subject to 1b. s. 34. the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees for such estate as the court shall direct; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate.

sue at law in new

37. It shall be lawful for the Supreme Court upon making any Power to court order for appointing a new trustee or new trustees either by the to vest right to same or by any subsequent order to vest the right to call for a trustees. transfer of any stock subject to the trust or to receive the dividends Ib. s. 35. or income thereof or to sue for or recover any chose in action subject to the trust or any interest in respect thereof in the person or persons who upon the appointment shall be the trustee or trustees.

38. Any such appointment by the Supreme Court of new old trustees not trustees, and any such conveyance assignment or transfer as afore- to be discharged said, shall operate no further or otherwise as a discharge to any Ib. s. 36.

(a) The court has no jurisdiction under this section to displace a trustee who resides in England, and who expresses his intention to remain

from liability.

a trustee although he has allowed some years to elapse without having acted.-In re Postlethwaite, 1 W. & W. (Eq.), 173.

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