the same, then for my said brother [name], his executors or administrators, or either or any of them, [or, for my executors or administrators for the time being, or either or any of them,] to appoint, within six calendar months after my decease, a fit person or persons to supply the va incapable, the survivors should supply the vacancy, did not enable trustees who renounced the trust ab initio to nominate new trustees; and Mr. Justice Bayley (who considered that "survivors" might be construed others) expressed a strong opinion, that a trustee who refused to act in limine was not such a trustee as the testator, when speaking of trustees desiring to be discharged or refusing to act, contemplated; (Sharp v. Sharp, 4 Barn. & Ald. 405); a doctrine which renders it especially necessary, that, in framing these clauses, distinct provision should be made for the case of trustees disclaiming. Where a single trustee is appointed, it seems desirable that the power should authorize the nomination of additional as well as substituted trustees: and, on the other hand, where the trustees named by the testator are numerous, it may be proper to enable a trustee to retire without a new nomination; and also partially to supply vacancies: for, without a special provision, it is by no means clear that any newly-appointed trustee is competent to act until the original number is complete. Some practitioners insert a declaration that the trustees or trustee for the time being shall be competent to act, notwithstanding that the power of changing trustees has become exercisable; and the insertion of such a clause would be advisable, if there was any doubt of a trustee's capacity to exercise the functions of his office in this event, which it is conceived there is not, unless the power is specially framed with a view to produce such an incapacity. Equitable property vests in the new out convey ance. cancy or vacancies occasioned by such death or refusal: AND I further declare, that so often as any trustee or trustees herein named, or to be appointed under this power or the preceding power, shall die, or desire to be discharged, or become unable to act, it shall be lawful for the trustees or trustee for the time being competent to act, (whether desirous of being discharged or not), or if there shall be no such trustee, then for my said brother [name], his executors or administrators, [or, for my executors or administrators for the time being,] to appoint a fit person or persons to succeed to the office of the deceased, retiring, or incapacitated trustee or trustees; and by force of every such appointment as aforesaid all the authorities and discretions given or expressed to be given to the deceased, refusing, incapacitated, or discharged trustee, shall be conferred upon the appointed trustee or trustees; in whom, either alone or (as the case may be) jointly with the surviving or continuing trustee or trustees, my trust property shall vest, or by proper assurances be vested (a); and on every appointment under (a) Interests equitable in their nature, as the benefit of a trust, or not legally assignable, as choses in action, are trustees with- often formally transferred on the appointment of new trustees; but the appointment alone confers all the fiduciary dominion which can be acquired over such property. Powers of appointing new trustees should not direct the execution of deeds of assurance in such terms as might seem to make the the first of the two preceding powers, the appointed trustee or trustees shall be considered as coming in under my will, in the same manner as if he or they had been therein named instead of the deceased or refusing trustee or trustees (b). trustees. I DECLARE that the trustees or trustee for the Indemnity of time being of my will shall be responsible only for their or his own respective acts, defaults, and act an essential concomitant in the exercise of the power, without regard to the nature of the property. Indeed the direction to vest the property in the new trustees is mere surplusage, and may always, without impropriety, be omitted. Where the only trust property consists of stock in the public funds, of course a deed of transfer is not requisite, as the fund is transferred by a mere alteration of names in the books at the Bank of England. Where the personalty is of such a nature as not to require a deed for transferring the trust property, it might be convenient that the donee should be empowered to appoint new trustees by a mere memorandum in writing, especially where the trust property is small, as such a memorandum would not require a stamp. disclaimer of (6) As the death in the testator's lifetime, or the dis- Lapse, by claimer ab initio of devisees or legatees in trust, would oc- trustees. casion a lapse, it is proper that the substituted trustees should be constituted devisees and legatees in the place of the deceased or disclaiming trustees. The form here given may be thought too long and special for general use; but simpler and shorter forms will be found in some of the subsequent precedents. As the clause is susceptible of being variously modified, the practitioner is offered his choice of different forms. Perhaps, a form at once concise and complete is still a desideratum. receipts, and be exempt from liability for involuntary losses, and be at liberty to deduct and allow to each other all expenses incident to the execution of the trusts of my will. LASTLY, I revoke all other testamentary dispositions. IN WITNESS &c. THIS No. VII. WILL of a MARRIED MAN, providing for IS THE LAST WILL AND TESTAMENT of me [testator's name, &c.] I BEQUEATH to my Legacies to trustees and executors hereinafter named, £. apiece, and to my friends [names, &c.] £ K executors and -to friends for rings. |