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Settled Land Act
building or work in its nature insurable against damage by fire is comprised in the improvement, shall insure and keep insured the same, at his own expense, in such amount, if any, as the Court by order in any case prescribes.
When tenant for
Provision where several tenants for life who do not agree
(2) The tenant for life, or any of his successors as aforesaid, shall not cut down or knowingly permit to be cut down, except in proper thinning, any trees planted as an improvement under the foregoing provisions of this Act.
(3) The tenant for life, and each of his successors as aforesaid, shall from time to time, if required by the Court, on or without the suggestion of any person having, under the settlement, any estate or interest in the settled land in possession, remainder, or otherwise, report to the Court the state of every improvement executed under this Act, and the fact and particulars of fire insurance, if any.
(4) The Court may vary any order made by it under this section, in such manner or to such extent as circumstances appear to require, but not so as to increase the liabilities of the tenant for life, or any of his successors as aforesaid.
38. The tenant for life, and each of his successors in title having regards waste in under the settlement a limited estate or interest only in the settled
repair of im
land, and all persons employed by or under contract with the tenant
(5) If the tenant for life, or any of his successors as aforesaid, fails in any respect to comply with the requirements of this section, or does any act in contravention thereof, any person having, under the settlement, any estate or interest in the settled land in possession, remainder, or reversion, shall have a right of action, in respect of that default or act, against the tenant for life; and the estate of the tenant for life, after his death, shall be liable to make good to the persons entitled under the settlement any damages occasioned by that default or act.
PART V.-MODE OF EXERCISE OF POWERS-PROCEDURE
39. When the tenant for life is the sole trustee of the settlement, or the tenants for life, being two or more, are the sole trustees of the settlement, or there is no trustee of the settlement, the powers conferred Court necessary by this Act on a tenant for life shall not be exercised without the
settlement, sanction of the
sanction of the Court.
40. When there are more tenants for life than one, and they do not concur, or one or more of them is or are from disability or otherwise unable to concur, in any dealing with the settled land proposed by one
Settled Land Act
or more of them, the Court may on the application of any of them direct that any of the powers conferred by this Act on a tenant for life shall be exercised by one or more of such tenants for life, and on such conditions as the Court thinks fit.
41. (1) A tenant for life, when intending to make a sale, exchange, partition, lease, mortgage, or charge, or a contract for a sale, exchange, partition, lease, mortgage, or charge, shall give notice of his intention in that behalf to each of the trustees of the settlement (other than himself if he is one of the trustees), by posting registered letters, containing the notice, addressed to the trustees, severally, each at his usual or last known place of abode in Western Australia, and shall give like notice to the solicitor for the trustees, if any such solicitor is known to the tenant for life, by posting a registered letter, containing the notice, addressed to the solicitor at his place of business in Western Australia.
Such letter shall be posted not less than three months before the making by the tenant for life of the sale, exchange, partition, lease, mortgage, or charge, or the contract for the same.
(2) Provided that at the date of notice given the number of trustees must be not less than two, unless one trustee only is appointed by the settlement, or a contrary intention is expressed in the settlement.
(3) The notice may be notice of a general intention in that 47 and 48 Vic.,
c. 18, s. 5
(4) The tenant for life must, upon request by a trustee of the settlement, furnish to him such particulars and information as may reasonably be required by him from time to time with reference to sales, exchanges, partitions, or leases effected, or in progress, or immediately intended.
(5) Any trustee by writing under his hand may waive notice, either in any particular case or generally, and may accept less than three months' notice.
(6) A person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of any such notice as is required by this section.
42. If at any time a difference arises between a tenant for life and the trustees of the settlement, respecting the exercise of any of the powers of this Act, or respecting any matter relating thereto, the Court may, on the application of either party, give such directions respecting the matter in difference, and respecting the costs of the application, as the Court thinks fit.
43. (1) Every application to the Court shall be by petition, or by summons in Chambers.
(2) On an application by the trustees of a settlement notice shall be served in the first instance on the tenant for life.
(3) On any application notice shall be served on such persons, if any, as the Court thinks fit.
4 and 16 Vic., c. 38, s. 45
(4) The Court shall have full power and discretion to make such order as it thinks fit respecting the costs, charges, or expenses of all or any of the parties to any application, and may, if it thinks fit, order
45 and 46 Vic.,
c. 38, s. 45
differences to Court.
45 and 46 Vic.,
c. 38, s. 44
respecting applications, &c.
45 and 46 Vic.,
c. 38, s. 46
Payment of costs
Number of trustees to act 45 and 46 Vic., c. 38, s. 39
Settled Land Act
that all or any of those costs, charges, or expenses be paid out of the property subject to the settlement.
(5) General Rules may be made for the purposes of this Act by the Chief Justice of the Supreme Court, and such Rules shall be deemed Rules of Court within Section twenty-four of The Supreme Court Act, 1880.'
44. Where the Court directs that any costs, charges, or expenses be paid out of property subject to a settlement, the same shall, subject and according to the directions of the Court, be raised and paid out of capital money arising under this Act, or other money liable to be laid out in the purchase of land to be made subject to the settlement, or out of investments representing such money, or out of income of any such money or investments, or out of any accumulations of income of land, money, or investments, or by means of a sale of part of the settled land in respect whereof the costs, charges, or expenses are incurred, or of other settled land comprised in the same settlement and subject to the same limitations, or by means of a mortgage of the settled land or any part thereof, to be made by such person as the Court directs, and either by conveyance of the fee-simple or other estate or interest the subject of the settlement, or by creation of a term, or otherwise, or by means of a charge on the settled land or any part thereof, or partly in one of those modes and partly in another or others, or in any such other mode as the Court thinks fit.
45. (1) If, at any time, there are no trustees of a settlement within the definition of this Act, or where in any other case it is expedient, for the purposes of this Act, that new trustees of a settlement should be appointed, the Court may, if it thinks fit, on the application of the tenant for life or of any other person having, under the settlement, an estate or interest in the settled land, in possession, remainder, or otherwise, or, in the case of an infant, on the application of his testamentary or other guardian, or next friend, appoint a fit person or fit persons to be trustees under the settlement for the purposes of this Act.
(2) The person or persons so appointed, and the survivors or survivor of them, while continuing to be trustees or trustee and, until the appointment of new trustees, the personal representatives or representative for the time being of the last surviving or continuing trustee, shall, for the purposes of this Act, become and be the trustees or trustee of the settlement.
46. (1) Notwithstanding anything in this Act, capital money arising under this Act shall not be paid to fewer than two persons as trustees of a settlement, unless the settlement authorises the receipt of capital trust money of the settlement by one trustee or by order of the Court.
(2) Subject to the settlement, the provisions of this Act referring to the trustees of a settlement apply to the surviving or continuing trustees or trustee of the settlement for the time being.
Settled Land Act
47. The receipt in writing of the trustees of a settlement, or where Trustees' one trustee is empowered to act, of one trustee, or of the personal 45 and 46 Vic., representatives or representative of the last surviving or continuing c. 38, s. 40 trustee, for any money or securities, paid or transferred to the trustees, trustee, representatives, or representative, as the case may be, effectually discharges the payer or transferor therefrom, and from being bound to see to the application or being answerable for any loss or misapplication thereof, and, in case of a mortgagee or other person advancing money, from being concerned to see that any money advanced by him is wanted for any purpose of this Act, or that no more than is wanted is raised.
48. Each person who is, for the time being, trustee of a settlement Protection of is answerable only for what he actually receives, notwithstanding his cach trustee signing any receipt for conformity, and in respect of his own acts, 45 and 46 Vic., receipts, and defaults only, and is not answerable in respect of those c. 38, s. 41 of any other trustee, or of any banker, broker, or other person, or for the insufficiency or deficiency of any securities, or for any loss not happening through his own wilful default.
c. 38, s. 42
49. The trustees of a settlement, or any of them, are not liable Protection of for giving any consent, or for not making, bringing, taking, or doing generally. any such application, action, proceeding, or thing, as they might 45 and 46 Vic., make, bring, take, or do; and in case of purchase of land with capital money arising under this Act, or of an exchange, partition, or lease, are not liable for adopting any contract made by the tenant for life, or bound to inquire as to the propriety of the purchase, exchange, partition, or lease, or answerable as regards any price, consideration, or fine, and are not liable to see to or answerable for the investigation of the title, or answerable for a conveyance of land, if the conveyance purports to convey the land in the proper mode, or liable in respect of purchase-money paid by them by direction of the tenant for life to any person joining in the conveyance as a conveying party, or as giving a receipt for the purchase-money, or in any other character, or in respect of any other money paid by them by direction of the tenant for life on the purchase, exchange, partition, or lease.
50. The trustees of a settlement may reimburse themselves or pay Trustees' reimand discharge out of the trust property all expenses properly incurred by them.
45 and 46 Vic.,
c. 38, s. 43
51. The Court or a judge may, by order, authorise the trustees of a settlement to retain for their own use out of the income of the trustees trust property, or in case of a sale by the trustees out of the proceeds of the trust property, a reasonable sum by way of commission for their pains and trouble in the management or sale of the property; but no such commission shall be allowed at a higher rate than five pounds per centum of the income or proceeds.
An order under this section may be made upon summons or petition, or, if the settlement is a will and the executors are also the trustees of the settlement, upon an application to pass the accounts of the executors.
Prohibition or limitation against exercise of powers, void. 45 and 46 Vic., c. 38, s. 51
Tenant for life trustee for all
Settled Land Act
PART VII.-MISCELLANEOUS PROVISIONS
52. (1) The powers, under this Act, of a tenant for life are not capable of assignment or release, and do not pass to a person as being, by operation of law or otherwise, an assignee of a tenant for life, and remain exercisable by the tenant for life after and notwithstanding any assignment, by operation of law or otherwise, of his estate or interest under the settlement.
(2) A contract by a tenant for life not to exercise any of his powers under this Act is void.
(3) But this section shall operate without prejudice to the rights of any person being an assignee for value of the estate or interest of the tenant for life; and in that case the assignee's rights shall not be affected without his consent, except that, unless the assignee is actually in possession of the settled land or part thereof, his consent shall not be requisite for the making of leases thereof by the tenant for life, provided that the leases are made at the best rent that can reasonably be obtained, without fine, and are in other respects in conformity with this Act.
(4) This section extends to assignments made or coming into operation before or after and to acts done before or after the commencement of this Act; and in this section assignment' includes assignment by way of mortgage, and any partial or qualified assignment, and any charge or incumbrance; and assignee' has a meaning corresponding with that of assignment.
53. (1) If in a settlement, will, assurance, or other instrument executed or made before or after, or partly before and partly after, the commencement of this Act a provision is inserted purporting or attempting, by way of direction, declaration, or otherwise, to forbid a tenant for life to exercise any power under this Act, or attempting, or tending, or intended, by a limitation, gift, or disposition over of settled land, or by a limitation, gift, or disposition of other real or any personal property, or by the imposition of any condition, or by forfeiture, or in any other manner whatever, to prohibit or prevent him from exercising, or to induce him to abstain from exercising, or to put him into a position inconsistent with his exercising, any power under this Act, that provision, as far as it purports, or attempts, or tends, or is intended to have, or would or might have, the operation aforesaid, shall be deemed to be void.
(2) For the purposes of this section an estate or interest limited to continue so long only as a person abstains from exercising any power shall be and take effect as an estate or interest to continue for the period for which it would continue if that person were to abstain from exercising the power, discharged from liability to determination or cesser by or on his exercising the same.
54. Notwithstanding anything in a settlement, the exercise by the tenant for life of any power under this Act shall not occasion a forfeiture.
55. A tenant for life shall, in exercising any power under the Act, have regard to the interests of all parties entitled under this