APPOINTMENTS OF NEW TRUSTEES (a),

CLAUSES.

1. IN EXERCISE of the power for this ppose by the hin- Appointbefore recited [mentd] indre of the

day of

ment of trustee.

new

(a) As to appointments of new trustees, see Dav. Prec., vol. iv., Elph. Law as to Introd. Conv., p. 479; and for the law on the subject, see Lewin on Trusts, appointand the Conv. Act, 1881, ss. 31 to 34. That Act (s. 71) has repealed the ments of power of appointing new trustees contained in Lord Cranworth's Act, trustees. 23 & 24 Vic., c. 145, s. 27, and (by s. 31) re-enacted it with amendments. The power applies to the case of a trustee dying (expressly including, in Statutory the case of a will, death in the testator's lifetime), remaining out of the United power. Kingdom for more than twelve months (a case not provided for by the re

pealed Act), desiring to be discharged, or refusing or being unfit or incapable to act (but not expressly including in the case of a will, unfitness or incapacity arising in the testator's lifetime). The power is vested in the person or persons, if any, nominated by the instrument, if able and willing to act, or otherwise in the surviving or continuing trustees or trustee (which includes a refusing or retiring trustee if willing to act, differing in this respect from the repealed Act), or the personal representatives of the last surviving or continuing trustee.

The Act contains provisions (which are new), that on an appointment Increase or being made the number of trustees may be increased or reduced, but not to reduction less than two unless only one trustee was originally appointed; and (s. 32) in number. that, where there are more than two trustees, one of them may, with the consent of his co-trustees and the person empowered to appoint new trustees, be discharged without the appointment of a new trustee in his place.

instruments

All the above provisions are to apply to instruments executed before as Operation well as since the new Act (except so far as they are excluded or varied by of new the terms of the instrument); but the repeal (by s. 71) of the clause in Lord Act on Cranworth's Act is not to affect the operation of instruments executed before previous the new Act. In the case therefore of a settlement or will executed before the 1st January, 1882, and incorporating wholly or partially, and whether by express reference or not, the power in the repealed Act, the provisions of that Act will continue to apply; and the new enactments will also be applicable as supplemental to the former, if and so far as there is nothing in the terms of the instrument to exclude them (a question possibly in some cases of difficulty). These supplemental provisions, where they apply, would enable a

where the or, "by the within written indre," or, "by the hinbefore contained recited will of the sd X.," given to the sd, donee or donees of

power is

in the

settlement power, and of every or any other power him [them] enabling

or will,

with varia

tions.

Clause enabling trust

estate to be

declaration.

new trustee to be appointed in place of one who has gone to reside abroad, or the number of trustees to be increased or reduced, or a trustee to be discharged without appointing a new one in his place.

The new Act contains a further important clause (s. 34) enabling the appointor upon the appointment of a new trustee to make a declaration operating to vest the trust estate in the continuing and new trustees without vested by any conveyance or assignment. The like declaration may be made by the retiring and continuing trustees and the person empowered to appoint new trustees, where a trustee is discharged under s. 32 without appointing a new trustee in his place. This enactment applies to "any estate or interest in land," or "in any chattel," and "the right to recover and receive any debt or other thing in action; "but does not extend to the legal estate in copyholds, or to legal mortgages, or to shares, stock, &c., transferable only in books kept by a company or other body or in manner prescribed by Act of Parliament.

Observa tions on

As this enactment is likely to be extensively used in practice, it might have been better if the property as to which a vesting declaration may be this clause. made had been described by a short form of words of the most sweeping and general import, comprising real and personal estate of every description, and not depending on a definition (with the specified exceptions); but the expressions used (which are partly taken from the enactments in the Trustee Act, 1850, as to vesting orders by the Court), appear to be suffi ciently comprehensive, and (having regard to the definition of "land" in section 2) include land of every tenure (except the legal estate in copyholds), and incorporeal hereditaments; chattels personal, such as furniture and heirlooms; legal debts and choses in action, such as gross and annual sums secured by bond or covenant, and policies of assurance; equitable choses in action, such as a reversionary interest in personalty, a share of a residuary estate, or a merely equitable interest in a mortgage debt (where the debt and security is legally vested in third parties, as in case of a contributory mortgage). As regards equitable interests, although a formal conveyance or assignment is usual, especially in the case of real estate, there is no absolute necessity for it, as the right passes to the new trustees by virtue of their appointment. Shares, stock, and debentures, &c., of companies and public bodies must be transferred in the usual way. Securities "to bearer" must of course be transferred by actual delivery, and should be deposited in a bank or otherwise so as to be under the joint legal control of all the trustees.

This means of vesting the trust estate will be chiefly useful, where the outgoing trustee is under incapacity or absent; but it would have been more so if, instead of excepting copyholds, the clause had enabled the appointor to convey them, or to nominate some other person to do so, by analogy to the Trustee Act; and if the exception of mortgages had also been omitted. The latter exception appears to have been inserted with

in this behalf he the sd, donee, doth [they the sd, donees, do] hby [with the consent (hby testified) of the sd, consenting party or parties,] appoint the sd, new trustee or trustees, to be a trustee [trustees] in the place of the sd, deceased or outgoing trustee or trustees, for the pposes of the sd hinbefore recited [mentd] indre of the day of, or, "the within written indre," or, "the hinbefore recited will [and codicils] of the sd X.," or such of the same pposes as may be subsisting and capable of taking effect [or, where there is more than one set of trustees, for all the pposes for which the sd, deceased or outgoing trustee or trustees, was [were] appointed a trustee [trustees] by the sd, settlemt or will or as the case may be, or such, &c., see above].

II. IN EXERCISE of the power for this ppose by the Act Appoint23 & 24 Vic., c. 145, or, "by the Conveyancing and Law of of trustee

reference to the practice of taking and transferring mortgages to trustees without disclosing the trust; but there was no need for the exception, as it is in the option of the appointor to use the Act or not; and there is no apparent reason why he should not have the power to do so in this case. These two exceptions will necessitate applications to the Court for vesting orders where they might have been saved; but the exception of stocks and shares, &c., appears to be inevitable, as an order of the Court could scarcely, with safety, be dispensed with in those cases.

The vesting of the trust estate by declaration may occasionally be usefully adopted where a married woman is a trustee, to save the expense of acknowledgment, the provision in the V. & P. Act, 1874, s. 6, enabling a married woman to convey trust estate as if she were sole, applying only where she is a bare trustee as to which see Christie v. Ovington, 1 Ch. D. 279; Morgan v. Swansea, &c., Authority, 9 Ch. D. 582.

The vesting declaration must be contained in the same deed by which the new trustee is appointed, or the retiring trustee is discharged under s. 32; but in the latter case there can be little if any advantage in vesting the property by declaration instead of conveyance, as the retiring and continuing trustees must all be parties to the deed. The declaration is to vest the property in "the persons who by virtue of the deed become and are the trustees for performing the trust," as joint tenants.

In construing the above enactments it must of course be borne in mind that by 13 & 14 Vic., c. 21, in Acts of Parliament the singular includes the

plural, and vice versâ, unless a contrary intention appear.

ment

under

statutory

power (b).

As to the stamp duty on appointments of new trustees, see the Stamp Stamps. Act, 1870, Sched. tit. APPOINTMENT; Hadgett v. The Commissioners, &c.,

3 Ex. D. 46; Dav. Prec. IV. 609.

(b) See above, p. 105, note (a).

Declaration

Property Act, 1881," or, if the statutory power is expressly incorporated with or without variation in the instrument creating the trust, "by the joint operation of the, settlement or will, and the Act 23 & 24 Vic., c. 145, or, the Conveyancing, &c., Act, 1881,'" given to the sd, donee or donees of power, and of every, &c., as in last form.

III. AND IT IS HBY agrd and decld that the sd, new and of trust (c) continuing (if any) trustees, their [hrs], exs, ads, and assigns, shall hold the sd, stocks, shares, dc., [when the same shall have been transferred into their names] or, "all and singular the sd and premes [when the assurance and transfer thof shall have been made to them as afsd]" upon the trusts and with and subjt to the powers and provons applicable thto [or upon, with, and subjt to which the same ought to be held] by virtue of the hinbefore recited [mentd] indre of the day of, or, "the within written indre," or, "the hinbefore recited will [and codicils] of the sd X."

Covenant against incum

IV. AND THE sd, covenantor, [EACH of them the sd, corenantors, so far as relates to his own acts and deeds only], brances (d). doth hby covenant with the sd, covenantee, his [covenantees, their] hrs, [exs, ads,] and assigns (e) that he the sd, core

(c) This clause though usual is not necessary.

Covenant (d) The covenant against incumbrances by trustees in conveyances may implied by now generally be omitted, the covenant being implied by making the trustees trustees convey 66 as trustees;" see the Conv. Act, 1881, s. 7, subs. 1 F., conveying and CONVEYANCES. In appointments of new trustees containing a convey

"as

trustees."

"Heirs," &c., after

name of covenantee.

ance or assignment of the trust estate, it is usual for the conveying parties to covenant with the new trustee or trustees against incumbrances. If there is no continuing trustee, the covenant implied by virtue of the late Act would suffice whether in a conveyance of freeholds, an assignment of leascholds or personalty, or (having regard to the definition of the words "conveyance" and "convey" in s. 2), a covenant to surrender copyholds; see Prec. IX.; but in by far the most common case of there being a continuing trustee, there is a formal objection to using the Act, as the statutory covenant is with all the persons to whom the conveyance is made jointly (see the first paragraph of section 7), so that the continuing trustee would be both a covenantor and a covenantee, and it may be better therefore to insert an express covenant; but the covenant is at the best of little value. (e) The words "heirs and assigns" or executors, administrators, and assigns," after the name of the covenantee may now be omitted: see the Conv. Act, 1881, s. 58 (as to land), and above, p. 8, note.

66

nantor, has [they the sd, covenantors, resply have] not done or knowingly omitted or suffered or been pty or privy to anything whby the sd premes hby granted [assigned and covenanted to be surrendered resply] or, "hby assured" or any pt thof are is or may be affected or incumbered in anywise howsoever, or whby he is [they resply are] prevented from granting [assigning and surrendering] or, "assuring" the same premes or any pt thof resply in mner afsd.

PRECEDENTS.

I.

APPOINTMENT, by the surviving TENANT for LIFE of a Settlement of MONEY in the funds, of NEW TRUSTEES in the place of deceased or retiring trustees, the CHANGES of INVESTMENT and other dealings with the trust-funds not being fully recited (endorsed on the SETTLEMENT) (a).

THIS INDRE, made, &c., BETWEEN A., of, &c., widow, formerly B. within named, 1; C., retiring trustee, 2; D., Recitals. continuing trustee, 3; E. and F., new trustees, 4. WHAS a Marriage. marre between the within-named K. and B., now A., was duly solemnised shortly after the execution of the withinwritten indre: AND WHAS the sd K. died on the

day Death of

husband.

Present

of —: AND WHAS divers changes in the investmt of and other dealings with the trust-funds comprd in or subjt to state of the trusts of the within written indre have from time to time trustfunds. taken place, and portions thof have been applied or disposed

(a) For variations where the deed is supplemental to the settlement instead of being endorsed, see above, p. 78, note; and below, PRECEDENT X,