Where the event on which apportionment is claimed occurs after the 33 & 34 Vict. passing of the act, the act applies whether the instrument comes into c. 35, s. 2. operation before or after the act (Re Cline, 18 Eq. 213). So held in the case of a will (Lawrence v. Lawrence, 26 Ch. D. 795; Patching v. Barnett, Application of act, 43 L. T. 50; see Capron v. Capron, 17 Eq. 288; Hasluck v. Pedley, 19 Eq. 271; Constable v. Constable, 11 Ch. D. 681; where codicils were executed after the act; see, however, Jones v. Ogle, 8 Ch. 192). So held also in the case of an order of court (Re Thacker, 1873, W. N. 10).

The act applies as between the estate of a testator and a person claiming under a specific gift of real estate (Hasluck v. Pedley, 19 Eq. 271; Constable v. Constable, 11 Ch. D. 681) and of personal estate (Re Griffith, Carr v. Griffith, 12 Ch. D. 655; Pollock v. Pollock, 18 Eq. 329; correcting Whitehead v. Whitehead, 16 Eq. 528). Similarly the act applies between tenant for life and remainderman (Re Cline, 18 Eq. 213; Pollock v. Pollock, ib. 329). For cases where the testator has given directions against apportionment, see sect. 7, post, p. 746.

As between vendor and purchaser the words of sect. 2 seem wide enough as between to give rise to an apportionment of rent when not provided for by the vendor and contract. See, however, Re Keillor (I. R. 6 Eq. 329), where a purchaser purchaser, of land was held liable to all rent payable after the purchase; and Black v. Homersham (4 Ex. D. 24), where a purchaser of shares was held entitled to all dividends declared after the contract (see further Dart, V. & P. 6th ed. 915).

Where a condition on a sale of leaseholds provided that the purchaser should have possession on a certain day, all outgoings up to that day being cleared by the vendors, the vendors were held bound to pay aň apportioned part of the current rent (Lawes v. Gibson, 1 Eq. 135).

Where land in occupation of a tenant was conveyed, it was held under the old law that while the conveyance did not pass arrears of rent previously due (Flight v. Bentley, 7 Sim. 151), it passed all the grantor's interest in rent not then due (Flinn v. Calow, 1 M. & Gr. 589).

As between landlord and tenant, where, during a quarter, a succession as between of interest occurs in the reversion, the case falls within the proviso at the landlord and end of sect. 4, and only one action can be brought for the entire rent. tenant. But where the succession occurs among the persons entitled to the term, the reversioner can sue each person liable for his proportion of rent, but for no greater sum. So held where the trustee of a bankrupt tenant entered and subsequently assigned over during a current quarter (Swansea Bank v. Thomas, 4 Ex. D. 94; 40 L. T. 558; Hopkinson v. Lovering, 11 Q. B. D. 92). The act, in fact, not only affects the rights of recipients of rent, but apportions the liability to pay rent (Re Howell, 1895, 1 Q. B. 847). Where a tenant is evicted by title paramount during a quarter, the act applies, and the tenant is liable for an apportioned part up to eviction (Elvidge v. Meldon, 24 L. R. Ir. 91; see Hartcup v. Bell, 1 Cab. & El. 19). And the same rule seems to obtain where a landlord lawfully evicts his own tenant (see Ellis v. Rowbotham, 1900, 1 Q. B. 743, and sect. 3 of the act; see formerly Oldershaw v. Holt, 12 Ad. & E. 590); but not where the eviction is wrongful (Clapham v. Draper, 1 Cab. & El. 484). Where rent was payable in advance, it was not apportioned, it being said that the act was only intended to apply to sums which are accruing, but have not accrued, due when the apportionment is said to be required (Ellis v. Rowbotham, 1900, 1 Q. B. 744).

On the construction of a will, a direction to forgive a tenant all rents "due and owing" at the testator's death was held to relate to rent not up to the death, but only to the last rent day before the death (Re Lucas, Parish v. Hudson, 54 L. T. 30). On the other hand, where a tenant becomes bankrupt during a quarter, rent up to the adjudication is rent "accrued due" within sect. 42 of the Bankruptcy Act, 1883; and the landlord upon the expiry of the quarter may distrain (Re Howell, 1895, 1 Q. B. 844; see Re Wilson, 62 L. J. Q. B. 628).

In the case of a company, a claim for rent for the expired portion of a current quarter is not a debt on which a winding-up petition can be

33 & 34 Vict. c. 35, s. 2.

Payments

founded (United Club Co., 60 L. T. 665). Where a company holding a lease is wound up, rent is apportioned to the date of the winding-up order (Winding-up Rules, 1890, rule 103). See before that rule South Kensington Stores (17 Ch. D. 161). The same rule was applied in the case of a voluntary liquidation (Shackell v. Chorlton, 1895, 1 Ch. 378).

The right specially conferred by the Landlord and Tenant Act, 1851, s. 1, upon a remainderman to an apportioned part of the rent under a lease granted by a tenant for life seems now to belong to him under the general provisions of this act.

In the ordinary case of rents issuing out of land, a mortgagee entering is entitled to rents then accrued due but not paid over. And this right has not been interfered with by the act (Anderson v. Butler's Wharf, 48 L. J. Ch. 824).

In the case of an annuity charged on the land of a tenant for life and secured by a term, it was held under the old law that, unless the annuitant had entered into possession, he could not claim arrears of his annuity out of apportioned rents belonging to the tenant for life's estate (Paget v. Anglesey, 17 Eq. 283).

Under this act an apportionment has been made of rents (Capron v. apportionable. Capron, 17 Eq. 288; Roseingrave v. Burke, I. R. 7 Eq. 186; see South Kensington Co-operative Stores, 17 Ch. D. 161; Ellis v. Rowbotham, 1900, 1 Q. B. 740); dividends on stock (Pollock v. Pollock, 18 Eq. 329); dividends payable by a company registered under the Cos. Act, 1862 (Re Lysaght, Lysaght v. Lysaght, 1898, 1 Ch. 115); an occasional bonus on shares in an unincorporated life assurance society which was held to be a public company within sect. 5 (Re Griffith, Carr v. Griffith, 12 Ch. D. 655); a salary (Treacy v. Corcoran, I. R. 8 C. L. 40; but not of profits arising from a newspaper (Re Cox, 9 Ch. D. 159); nor of the profits of a private trading partnership (Jones v. Ogle, 8 Ch. 192); nor of parish rates (Re Wearmouth Co., 19 Ch. D. 640); nor an annuity payable in advance (Trevalion v. Anderton, 66 L. J. Q. B. 489).

Apportioned part of rent, &c. shall be

payable when

the next

entire portion

shall have become due.

Persons shall

Where directors of a company were under the articles entitled to "receive by way of remuneration in each year 5,000l.," they were only entitled in respect of a complete year, and the act did not apply (Salton v. New Beeston Cycle Co., 1899, 1 Ch. 775; see Inman v. Ackroyd, 1901, 1 Q. B. 613).

No apportionment of income will be made as between tenant for life and remainderman with reference to the variation in price of stock arising from the distance of a period of sale or investment from the last payment of dividend (Scholefield v. Redfern, 2 Dr. & Sm. 173; Freeman v. Whitbred, 1 Eq. 266; Re Clarke, Barker v. Perowne, 18 Ch. D. 160; Bulkeley v. Stephens, 1896, 2 Ch. 241).

The apportionment contemplated by the above act is one in respect of time. As to the apportionment (in a different sense) of rent-service and rent-charges in certain cases, see Law of Prop. Amend. Act, 1859, ss. 3, 10, ante, p. 527; and with respect to leases granted after the 31st December, 1881, see Conv. Act, 1881, s. 12, ante, p. 568.

3. The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment when the entire portion of which such apportioned part shall form part shall become due and payable, and not before, and in the case of a rent, annuity, or other such payment determined by reentry, death, or otherwise when the next entire portion of the same would have been payable if the same had not so determined, and not before.

4. All persons and their respective heirs, executors, adminis

recovering

tions.

trators, and assigns, and also the executors, administrators, and 33 & 34 Vict. c. 35, s. 4. assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies at have the same law and in equity for recovering such apportioned parts as remedies for aforesaid when payable (allowing proportionate parts of all apportioned just allowances) as they respectively would have had for re- parts as for covering such entire portions as aforesaid if entitled thereto entire porrespectively; provided that persons liable to pay rents reserved Proviso as to out of or charged on lands or other hereditaments of any tenure, rents reserved and the same lands or other hereditaments, shall not be re- in certain sorted to for any such apportioned part forming part of an cases. entire or continuing rent as aforesaid specifically, but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this act, or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this act to the same by action at law or suit in equity.

See Swansea Bank v. Thomas, 4 Ex. D. 94, ante, p. 743.

5. In the construction of this act

The word "rents" includes rent-service, rent-charge, and Interpretation. rent-seck, and also tithes and all periodical payments or of terins. renderings in lieu of or in the nature of rent or tithe.

The word" annuities" includes salaries and pensions.
The word "dividends " includes (besides dividends strictly so
called) all payments made by the name of dividend, bonus,
or otherwise out of the revenue of trading or other public
companies (a), divisible between all or any of the members
of such respective companies, whether such payments
shall be usually made or declared at any fixed times or
otherwise; and all such divisible revenue shall, for the
purposes of this act, be deemed to have accrued by equal
daily increment during and within the period for or in
respect of which the payment of the same revenue shall be
declared or expressed to be made (6), but the said word
"dividend" does not include payments in the nature of a
return or reimbursement of capital.

(a) See Jones v. Ogle (8 Ch. 192); Re Griffith, Carr v. Griffith (12 Ch. D. 655). The words include companies registered under the Companies Act, 1862 (Re Lysaght, L. v. L., 1898, 1 Ch. 115).

(b) It was held under the old law that for the purpose of apportionment a dividend was to be taken as payable on the day on which it was actually payable, and not on the day on which it was declared (Hartley v. Allen, 27 L. J. Ch. 621).

6. Nothing in this act contained shall render apportionable any annual sums made payable in policies of assurance of any description.

Act not to apply to policies of

assurance;

33 & 34 Vict.

7. The provisions of this act shall not extend to any case in c. 35, s. 7. which it is or shall be expressly stipulated that no apportionment shall take place.

nor where stipulation made to the contrary.

It was held under the similar words of sect. 3 of Apportionment Act, 1834, that inference from the whole tenor and context of the will was not sufficient to exclude the operation of the act (Tyrrell v. Clark, 2 Drew. 86). But an express gift of the income of property will have that effect (Re Cleveland, Wolmer v. Forester, 1894, 1 Ch. 165; Re Lysaght, Lysaght v. Lysaght, 1898, 1 Ch. 115; Re Meredith, Stone v. Meredith, 67 L. J. Ch. 409; 78 L. T. 492; Roseingrave v. Burke, 7 I. R. Eq. 190; see Jones v. Ogle, 8 Ch. 115).

TRUSTEES.

I. THE TRUSTEE ACT, 1893

II. THE TRUSTEE ACT, 1893, AMENDMENT ACT, 1894

III. THE LUNACY ACT, 1890, ss. 110, 128, 129, 135–143, 341
IV. THE JUDICIAL TRUSTEE ACT, 1896

I.—THE TRUSTEE ACT, 1893.

56 & 57 VICT. c. 53.

PART I.

INVESTMENTS.

1. A trustee may, unless expressly forbidden by the instru- 56 & 57 Vict. ment (if any) creating the trust, invest any trust funds in his c. 53, s. 1. hands, whether at the time in a state of investment or not, in Authorized manner following, that is to say (a) :

(a) In any of the parliamentary stocks or public funds or Government securities of the United Kingdom:

(b) On real or heritable securities in Great Britain or

Ireland (b):

(c) In the stock of the Bank of England or the Bank of Ireland:

(d) In India Three and a half per cent. stock and India Three per cent. stock, or in any other capital stock which may at any time hereafter be issued by the Secretary of State in Council of India under the authority of Act of Parliament, and charged on the revenues of India :

(e) In any securities the interest of which is for the time being guaranteed by Parliament:

(f) In consolidated stock created by the Metropolitan Board of Works, or by the London County Council, or in debenture stock created by the Receiver for the Metropolitan Police District:

(g) In the debenture or rentcharge, or guaranteed or preference stock of any railway company in Great Britain or Ireland incorporated by special Act of Parliament, and

investments.