8. 341. tingent and executory interest, a possibility coupled 53 Vict. c. 5, by married women and tenants in tail under the "Act 3 & 4 Will. 4, "Dividends" includes interest and other annual produce: 66 "Lunatic" means an idiot or person of unsound mind : "Trust" and "trustee" include implied and constructive As to constructive trustees, see note (r), ante, p. 792. 17 & 18 Vict. THE RULES IN LUNACY, 1892. Mode of Application. After Rule 16, which provides for applications for an order for an inquisition by petition, the subsequent rules are as follows:— 17. (a) Applications for a traverse and for a supersedeas shall be made by petition. (b) Applications under that portion of the Lunacy Act, 1890, which relates to "vesting orders" shall be made by summons, unless the judge in lunacy or a master directs a petition to be presented. This rule was substituted for the old rule in October, 1900. Lunacy Rules, 1892. Lunacy Rules, 1892. 19. All other applications under the Lunacy Acts, 1890 and 1891, or under those acts and also in the Chancery Division, shall, unless the judge or masters shall in any particular case otherwise direct, be made by summons at chambers before the masters. 20. In all cases in which the judge has, under the Lands Clauses Acts, the Settled Estates Act, 1877, the Settled Land Acts, 1882 to 1890, or any other enactment, jurisdiction to make an order upon petition affecting the property of a lunatic, the application for the order shall, unless the judge or master in any particular case otherwise directs, be made by summons at chambers before the masters. 21. If in any case in which the application is not by these rules or by the judge or masters directed to be made by petition, a petition is presented without the direction of the judge or masters, no further costs shall be allowed than would be allowed upon a summons. 23, All matters which require to be brought before the judge, shall be brought before him out of court. The judge may make an order upon any summons or petition without the attendance of counsel, solicitors, or parties, or after such attendance, or may adjourn the summons or petition into court, or refer the same to the masters for inquiry, or further inquiry, upon any matter. Any matter may be adjourned from court for consideration by the judge out of court, 24. The judge and masters respectively may direct any person to be served with notice of any application, and may dispense with service on any person. Vesting Orders. 57. Applications under that portion of the Lunacy Act, 1890, which relates to "vesting orders" may be made (a) Where the application is for the appointment of new trustees, or relates to property subject to a trust, by any person beneficially interested in the property, whether under disability or not, or by any duly appointed trustee thereof. (b) Where the application relates to any property subject to a mortgage, by any person beneficially interested in the equity of redemption or in the mortgage money, whether under disability or not. 58. The application shall be intituled in the matter of the trust or mortgage, and of the particular lunacy, and in the matter of the Lunacy Act, 1890. 59. The applicant shall serve any such application upon the person or persons who, according to the practice of the Chancery Division of the High Court, would be required or entitled to be served in similar cases. When the next of kin of a lunatic ought to be served but are unknown, the Attorney-General should be served (Re Bourke, 2 De G. J. & S. 426). Evidence. 92. The consent of a new trustee to act shall be sufficiently evidenced by a written consent signed by him and verified by a solicitor. Costs. 110. The rules of the Supreme Court as to costs for the time being in force shall, subject to these rules, apply to the costs of proceedings under the Lunacy Acts, 1890 and 1891, taken after the commencement of these rules in any matter. FORMS in SCHEDULE TO RULES to be used "with such variations as the circumstances require." R. 9. Form 1.-Title of Proceedings. (a) Application as to Alleged Lunatic. In Lunacy. In the matter of A. B., a person alleged to be of unsound mind. (b) Application as to Lunatic so found by Inquisition. In Lunacy. In the matter of A. B., a person of unsound mind. (c) Application as to Lunatic not so found by Inquisition. In the matter of A. B., a person of unsound mind not so found (d) Application in Lunacy and in the Chancery Division. In the High Court of Justice, Chancery Division. In the matter of A. B., a person of unsound mind [or as the case (f) Application for Vesting Orders. In Lunacy. In the matter of the trusts of an indenture dated made between and and In the matter of A. B., a person of unsound mind [or as the case and In the matter of the Lunacy Acts, 1890 and 1891. Form 12.-Consent to Act. Lunacy Rules, 1892. I, C. D., of solicitor, hereby certify that the above-written signature is the signature of A. B., the person mentioned in the above written consent. Dated the day of (Signed) C. D. Form 13.-Summons before the Masters. (For Title, see Form 1.) Let all parties concerned attend the Master in Lunacy in Chambers [or, in the case of a person through mental infirmity arising from disease or age incapable of managing his affairs, the Master in Chambers at Room No. ], at the Royal Courts of Justice, London, on day, the noon, on the hearing of an application on the part of [here state on whose behalf the application is made and its object]. 59 & 60 Vict. c. 35, s. 1. Power of court on application to appoint judicial trustee. Appointment of trustees. Cases under sub-sect. (1). IV. THE JUDICIAL TRUSTEES ACT, 1896. 59 & 60 VICT. c. 35. 1.-(1.) Where application is made to the court by or on behalf of the person creating or intending to create a trust, or by or on behalf of a trustee or beneficiary, the court may, in its discretion, appoint a person (in this act called a judicial trustee) to be a trustee of that trust, either jointly with any other person or as sole trustee, and, if sufficient cause is shown, in place of all or any existing trustees (a). (2.) The administration of the property of a deceased person, whether a testator or intestate, shall be a trust, and the executor or administrator a trustee, within the meaning of this act (b). (3.) Any fit and proper person nominated for the purpose in the application may be appointed a judicial trustee, and, in the absence of such nomination, or if the court is not satisfied of the fitness of a person so nominated an official of the court may be appointed, and in any case a judicial trustee shall be subject to the control and supervision of the court as an officer thereof (c). (4.) The court may, either on request or without request, give to a judicial trustee any general or special directions in regard to the trust or the administration thereof (d). (5.) There may be paid to a judicial trustee out of the trust property such remuneration, not exceeding the prescribed limits, as the court may assign in each case, subject to any rules under this act respecting the application of such remuneration where the judicial trustee is an official of the court, and the remuneration so assigned to any judicial trustee shall, save as the court may for special reasons otherwise order, cover all his work and personal outlay (e). (6.) Once in every year the accounts of every trust of which a judicial trustee has been appointed shall be audited, and a report thereon made to the court by the prescribed persons, and, in any case where the court shall so direct, an inquiry into the administration by a judicial trustee of any trust, or into any dealing or transaction of a judicial trustee, shall be made in the prescribed manner. As to the appointment of trustees generally, see the Trustee Act, 1893, s. 10 (ante, p. 753), dealing with appointments by the parties, and sect. 25 (ante, p. 763), dealing with appointments by the court. (a) Upon an application under the present sub-section, where a testator appointed his wife sole executrix, and gave her a life interest in his estate, but appointed no trustees, the court refused at the request of the residuary legatee, to appoint a judicial trustee, but appointed an ordinary trustee under the Trustee Act, 1893 (Re Ratcliff, 1898, 2 Ch. 352). In Re Martin (1900, W. N. 129) it was said that the union of a judicial trustee and an ordinary trustee was not desirable; and having regard to the opposition of the majority of the beneficiaries the appointment of a judicial trustee to act with a sole executor and trustee was refused, but an ordinary trustee was appointed. Sect. 4 of this act gives power to make rules regulating the practice under the act. This power has been exercised, and the rules are stated at length in the Annual Practice, Vol. II., and also in the current indexes to the Law Reports, 1897 and 1899. See also Seton, 6th ed. 1279. Rules 2-4 provide for applications to the court; and under r. 6 the court may upon an appointment make vesting orders. As to the removal and suspension, resignation, &c. of judicial trustees, see rr. 7 (2), (4), 20—24. 59 & 60 Vict. c. 35, s. 1. (b) Having regard to this sub-section the court can remove an executor Sub-sect. (2). and appoint a judicial trustee in his place (Re Ratcliff, 1898, 2 Ch.352). See also r. 25. Compare the cases under the Trustee Acts, ante, p. 793. (c) When the court is not satisfied of the fitness of the person nominated Sub-sect. (3). by the applicant, it is not necessary to appoint an official of the court, but any fit person may be appointed (Douglas v. Bolan, 1900, 2 Ch. 749). The court may appoint as judicial trustee a beneficiary or relative of a beneficiary, a solicitor or other person connected with the trust, a married woman, or a person already trustee (see rules under the act, r. 5). Rules 7 and 26 provide for appointing officials of the court, and r. 26 provides for appointing judicial trustees in connection with companies or clubs, or to carry on trades. (d) Rules 8-16 provide for the administration of a trust by a judicial Sub-sect. (4). trustee. Except where a summons is required by the rules the communication between a judicial trustee and the court is made by letter (r.28). (e) Rules 17-19 provide for remuneration, and r. 14-16 provide for Sub-sects. (5) and (6). accounts. 2. The jurisdiction of the court under this act may be exer- Court to cised by the High Court, and as respects trusts within its exercise jurisdiction by a palatine court, and (subject to the prescribed jurisdiction. definition of the jurisdiction) by any county court judge to whom such jurisdiction may be assigned under this act. The jurisdiction under the act may be exercised by a master of the High Court or by a registrar of a district registry, or of a palatine or county court (rr. 27, 33; see Re Martin, 1901, W. N. 129). See also as to district registries, and palatine and county courts, rr. 29, 30 and 31. cases of 3.-(1.) If it appears to the court that a trustee, whether Jurisdiction appointed under this act or not, is or may be personally liable of court in for any breach of trust, whether the transaction alleged to be a breach of breach of trust occurred before or after the passing of this act, trust. but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve the trustee either wholly or partly from personal liability for the same. (2.) This section shall come into operation at the passing of this act. It is not necessary to plead the act, but semble it is better to do so Practice under (Singlehurst v. Tapscott Co., 1899, W. N. 133). Where inquiries are section. ordered in an administration action, the trustee should see that such directions are inserted as will insure that proper evidence on any question intended to be raised under the act shall be before the court (Re Stuart, Smith v. Stuart, 1897, 2 Ch. 588). In the last case the question of relieving the trustee was considered, though only raised for the first time on further consideration. |