No. 234. Nothing contained in this section shall repeal or prejudice the pro- 28 VICTORIA, visions of any statute now or hereafter to be in force concerning powers of attorney. of the assets of tate after notice ministrator. c. 35 s. 29. 60. Where an executor or administrator shall have given such As to distribution or the like notices as, in the opinion of the court in which such testator or intesexecutor or administrator is sought to be charged, would have been given by exgiven by the Supreme Court sitting in equity in an administration ecutor or adsuit for creditors and others to send in to the executor or adminis- 22 & 23 Vict. trator their claims against the estate of the testator or intestate, such executor or administrator shall at the expiration of the time. named in the said notices or the last of the said notices for sending in such claims be at liberty to distribute the assets of the testator or intestate or any part thereof amongst the parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets or any part thereof so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said assets or a part thereof (as the case may be); but nothing herein contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively. apply by petition &c. in the man trust property. Ib. s. 30. 61. Any trustee executor or administrator shall be at liberty Trustees &c. may without the institution of a suit to apply by petition or by summons or summons to upon a written statement to any judge of the Supreme Court for the judge for advice opinion advice or direction of such judge on any question respecting agement of the the management or administration of the trust property 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 ;(a) 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, nothing herein shall 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 or direction; and the costs of such application as aforesaid shall be in the discretion of the judge to whom such application shall be made. 62. Every such petition or summons shall be served seven clear service of sumdays before the hearing thereof unless the person served shall con- mons or petition. sent to a shorter time. (a) This section (the same as 24 Vict. No. 112 s. 51) does not mean that the court is to investigate facts and advise the administrator, for it expressly requires the administrator to bring the facts before the court for its opinion as to the law applicable to them.-In the goods of Holdsworth, 2 W. & W. (I. E. & M.), 113. It does not give a right to come to the court for general advice and direction. A particular question, or questions, must be asked, a distinct Rule 3 order20th March 1860. issue must be raised, which other parties may come prepared to deal with.-In re the will of Punch, A.R., 23 Nov. 1860. The court will entertain questions of construction. In re Stillman, 1 V.L.R. (Eq.); In re Ritchie, ib., sed vide In re Youngman, 4 A.J.R., 66. Notwithstanding that the questions are difficult and involve points of construction and there being no appeal from the decision, the court will entertain them.—In re Dwight, 4 A.J.R., 33. 28 VICTORIA, No. 234. Trustees em- auction or private Sic. Sale may be made under buy in &c. Ib. s. 2. 63. In all cases where by any will deed or other instrument of settlement it is expressly declared that trustees or other persons therein named or indicated shall have a power of sale either generally or in any particular event over any hereditaments named or referred to in or from time to time subject to the uses or trusts of such will deed or other instrument, it shall be lawful for such trustees or other persons (whether such hereditaments be vested in them or not) to exercise such power of by* sale by selling such hereditaments either together or in lots and either by auction or private contract and either at one time or at several times; and (in case the power shall expressly authorise an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid for any other hereditaments in Victoria, and upon such exchange to give or receive any money for equality of exchange. 64. It shall be lawful for the persons making any such sale or special conditions exchange to insert any such special or other stipulations either as to and trustees may title or evidence of title or otherwise in any conditions of sale or contract for sale or exchange as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell the hereditaments which shall be so bought in or as to which the contract shall be so rescinded without being responsible for any loss which may be occasioned thereby; and no purchaser under any such sale shall be bound to enquire whether the persons making the same may or may not have in contemplation any particular reinvestment of the purchase money in the purchase of any other hereditaments or otherwise. Trustees exer cising power of sale &c. em 65. For the purpose of completing any such sale or exchange as aforesaid the persons empowered to sell or exchange as aforesaid powered to con- shall have full power to convey or otherwise dispose of the hereditaments in question either by way of revocation and appointment of the use or otherwise as may be necessary. vey. Moneys arising be laid out in other lands. Ib. s. 4. 66. The money so received upon any such sale or for equality from sales &c. to of exchange as aforesaid shall be laid out in the manner indicated in that behalf in the will deed or instrument containing the power of sale or exchange; or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments in fee simple in possession to be situate in Victoria, or of lands of a leasehold tenure which in the opinion of the persons making the purchase are convenient to be held therewith or with any other hereditaments for the time being subject to the subsisting uses or trusts of the same will deed or other instrument of settlement in which the power of sale or exchange was contained. And all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be freeholds of inheritance shall be settled and assured to the uses upon and for the trusts intents and purposes and with under and subject to the powers provisoes and declarations to which the hereditaments sold or given in exchange were or would have been subject, or as near thereto as the deaths of parties and other intervening accidents will admit of, but not so as to increase or multiply charges. And all such hereditaments so to be purchased or taken in exchange No. 234. as aforesaid as shall be of leasehold tenure shall be settled and 28 VICTORIA, assured upon and for such trusts intents and purposes and with under and subject to such powers provisoes and declarations as shall as nearly as may be correspond with and be similar to the aforesaid uses trusts intents and purposes powers provisoes and declarations, but not so as to increase or multiply charges; and so that if any of the hereditaments so to be purchased shall be held by lease for years, the same shall not vest absolutely in any tenant in tail by purchase who shall not attain the age of twenty-one years; and any such purchase as aforesaid may be made subject to any special conditions as to title or otherwise. Provided that no leasehold tenement shall be purchased under the powers hereinbefore contained which is held for a less period than twenty years. incumbrances. 23 & 24 Vict. 67. Provided nevertheless that it shall be lawful for the persons or in payment of exercising any such power as aforesaid (if they shall think fit) to apply any money to be received upon any sale or for equality of ex- c. 145 s. 5. change as aforesaid or any part thereof, in lieu of purchasing lands therewith, in or towards paying off or discharging any mortgage or other charge or incumbrance which shall or may affect all or any of the hereditaments which shall then be subject to the same uses or trusts as those to which the hereditaments sold or given in exchange. were or was subject. not to out 68. No money arising from any such sale or exchange of lands Money arising or hereditaments in Victoria shall be laid out in the purchase of orbe laid o lands or hereditaments situate elsewhere than in Victoria; and no nor lands exlands situate in Victoria shall under any such power as aforesaid be where than in exchanged for any lands or hereditaments situate elsewhere than in Victoria. changed else Victoria. Ib. s. 6. to be invested at 69. Until the money to be received upon any sale or for equality Until purchase of of exchange as aforesaid shall be disposed of in the manner herein lands &c. money mentioned, the same shall be invested at interest for the benefit of interest. the same parties who would be entitled to the hereditaments to be Ib. s. 7. purchased therewith as aforesaid and the rents and profits thereof in case such purchase and settlement as aforesaid were then actually made. holds may re 70. It shall be lawful for any trustees of any leaseholds for Trustees of relives or years which are renewable from time to time either under newable leaseany covenant or contract or by custom or usual practice if they shall new. in their discretion think fit, and it shall be the duty of such trustees Ib. s. 8. if thereunto required by any person having any beneficial interests present or future or contingent in such leaseholds, to use their best. endeavors to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms; and for that purpose it shall be lawful for any such trustees from time to time to make or concur in making such surrender of the lease for the time being subsisting and to do all such other acts as shall be requisite in that behalf. But this section is not to apply to any case where by the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew the lease or to contribute to the expense of renewing the same. 28 VICTORIA, Money for equality of ex- mortgage &c. 23 & 24 Vict. c. 145 s. 9. 71. In case any money shall be required for the purpose of paying for equality of exchange as aforesaid or for renewal of any lease as aforesaid, it shall be lawful for the persons effecting such exchange or renewal to pay the same out of any money which may renewal of leases then be in their hands in trust for the persons beneficially interested may be raised by in the lands to be taken in exchange or comprised in the renewed lease, whether arising by any of the ways and means herein before mentioned or otherwise, and notwithstanding the provisions for the application of money arising from sales or exchanges hereinbefore contained; and if they shall not have in their hands as aforesaid sufficient money for the purposes aforesaid, it shall be lawful for such persons to raise the money required by mortgage of the hereditaments to be received in exchange or contained in the renewed lease (as the case may be) or of any other hereditaments for the time being subject to the subsisting uses or trusts to which the hereditaments taken in exchange or comprised in the renewed lease (as the case may be) shall be subject; and for the purpose of effecting such mortgage such persons shall have the same power of conveying or otherwise assuring as are herein contained with reference to a conveyance on sale: and no mortgagee advancing money upon such mortgage purporting to be made under this power shall be bound to see that such money is wanted or that no more is raised than is wanted for the purposes aforesaid. made without consent of Ib. s. 10. No sale &c. to be 72. No such sale or exchange as aforesaid, and no purchase of hereditaments out of money received on any such sale or exchange tenant for life &c. as aforesaid, shall be made without the consent of the person appointed to consent by the will deed or other instrument or (if no such person be appointed then) of the person entitled in possession to the receipt of the rents and profits of such hereditaments if there be such a person under no disability; but this clause shall not be taken to require the consent of any person, where it appears from the will deed or other instrument to have been intended that such sale exchange or purchase should be made by the person or persons making the same without the consent of any other person. Provisions for ap trustees on death &c. Ib. s. 27. 73. Whenever any trustee either original or substituted and pointment of new whether appointed by the Supreme Court or otherwise shall die or desire to be discharged from or refuse or become unfit or incapable to act in the trusts or powers in him reposed before the same shall have been fully discharged and performed, it shall be lawful for the person or persons nominated for that purpose by the deed will or other instrument creating the trust (if any), or (if there be no such person or no such person able and willing to act then) for the surviving or continuing trustees or trustee for the time being or the acting executors or executor or administrators or administrator of the last surviving or continuing trustee or for the last retiring trustee, by writing to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying or desiring to be discharged or refusing or becoming unfit or incapable to act as aforesaid; and so often as any new trustee or trustees shall be so appointed as aforesaid, all the trust property (if any) which for the time being shall be vested in the surviving or continuing trustees or trustee or in the heirs executors or administrators of any trustee shall with all convenient speed be conveyed assigned and No. 234. transferred so that the same may be legally and effectually vested in 28 VICTORIA, such new trustee or trustees either solely or jointly with the surviving or continuing trustees or trustee as the case may require ; and every new trustee or trustees to be appointed as aforesaid as well before as after such conveyance or assignment as aforesaid, and also every trustee appointed by the Supreme Court either before or after the passing of this Act, shall have the same powers authorities and discretions and shall in all respects act as if he had been originally nominated a trustee by the deed will or other instrument creating the trust. 74. The power of appointing new trustees hereinbefore con- Appointment of tained may be exercised in cases where a trustee nominated in a will new trustees in has died in the lifetime of the testator. 75. The receipts in writing of any trustees or trustee for any money payable to them or him by reason or in the exercise of any trusts or powers reposed or vested in them or him shall be sufficient discharges for the money therein expressed to be received, and shall effectually exonerate the persons paying such money from seeing to the application thereof or from being answerable for any loss or misapplication thereof. cases herein Trustees' receipts Ib. s. 29. Ib. s. 30. 76. It shall be lawful for any executors to pay any debts or Executors may claims upon any evidence that they may think sufficient, and to compound &c. accept any composition or any security real or personal for any debts due to the deceased, and to allow any time for payment of any such debts due to the deceased and to allow any time for payment of any such debts as they shall think fit, and also to compromise compound or submit to arbitration all debts accounts claims and things whatsoever relating to the estate of the deceased, and for any of the purposes aforesaid to enter into give and execute such agreements instruments of composition releases and other things as they shall think expedient, without being responsible for any loss to be occasioned thereby. Trustees may property of in maintenance. 77. In all cases where any property is held by trustees in trust for an infant either absolutely or contingently on his attaining the apply income of age of twenty-one years or on the occurrence of any event previously fants &c. for their to his attaining that age, it shall be lawful for such trustees at their Ib. s. 26. sole discretion to pay to the guardians (if any) of such infant or otherwise to apply for or towards the maintenance or education of such infant the whole or any part of the income to which such infant may be entitled in respect of such property, whether there be any other fund applicable to the same purpose or any other person bound by law to provide for such maintenance or education or not; and such trustees shall accumulate all the residue of such income by way of compound interest by investing the same and the resulting income thereof from time to time in proper securities for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen. Provided always that it shall be lawful for such trustees at any time, if it shall appear to them expedient, to apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year. |