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of stock, upon an undertaking to invest in the name of the old trustee the dividends to which he was entitled beneficially (Re Stewart, 2 D. F. & J. 1; as to the indivisibility of dividends, see also Skynner v. Pelichet, 9 W. R. 191). As to the form of an order vesting the right to transfer stock, see further the note to sect. 22 (post, p. 511).

As to the practice in lunacy, see note to sect. 3 (ante, p. 500).

13 & 14 Vict.

c. 60, s. 5.

of deceased

person.

6. When any stock shall be standing in the name of any Power to deceased person whose personal representative is a lunatic or transfer stock person of unsound mind, or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof, in any person or persons he may appoint (r).

(r) This section has been, as to England, repealed by 53 Vict. e. 5, s. 342. See now sect. 136 (3) of that act (post, p. 539).

convey estates

7. Where any infant shall be seised or possessed of any lands Court of upon any trust or by way of mortgage, it shall be lawful for the Chancery may Court of Chancery to make an order vesting such lands in such of infant person or persons in such manner and for such estate as the said trustees and court shall direct; and the order shall have the same effect as if mortgagees. the infant trustee or mortgagee had been twenty-one years of age, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate (s).

(8) Before the Conv. Act, 1881, infants often became by devolution or devise seised of lands as trustees or mortgagees, and in particular where a vendor of land had died (See Re Lowry, 15 Eq. 78). Now, under the Cony. Act, 1881, ss. 4 and 30 (post, pp. 576, 600), the legal estate devolves on the personal representative, both where there is a contract to sell freeholds binding on the heir or devisee of a deceased vendor, and in the case of trust and mortgage estates; except in the latter case where they are copyhold (50 & 51 Vict. c. 78, s. 45; see Re Mills, 37 Ch. D. 312).

The legal estate in copyholds outstanding in the infant heir of a testator was vested under sect. 7 (Re Franklyn, 1888, W. N. 217; see Dewar v. Maitland, 2 Eq. 834). This section applies where the infant is also a lunatic (Re Arrowsmith, 4 Jur. N. S. 1123; 6 W. R. 642; 53 Vict. c. 5, s. 143). A vesting order was refused as to an equitable estate vested in an infant, and which was bound by an order for sale (Re Williams, 5 D. G. & Sm. 575).

in tail.

In the case of an infant tenant in tail, a vesting order under this act Infant tenant will, if the protector consents to it, bar all estates in remainder (Powell v. Matthews, 1 Jur. N. S. 973; and see Hargreaves v. Wright, 1 W. R. 408; Singleton v. Hopkins, 4 W. R. 107; Re Breary, 1873, W. N. 487). The infant should be served (Re Jones, 22 W. R. 837; Re Adams, 1887, Service. W. N. 175; Re Russell, 1866, W. N. 125; Re Cooper, 9 W. R. 531; contra, Re Little, 7 Eq. 323; Re Tweedy, 9 W. R. 398; Re Willan, ib. 689; Re Davies' Trust, 1889, W. N. 215). A petition by a tenant for life for an order vesting property in a new trustee appointed under a power, must be served on the remainderman. It was said that the evidence must show that the event had occurred in which the power could be exercised, and that the new trustee was a fit person (Re Maynard, 16 Jur. 1084).

13 & 14 Vict. c. 60, s. 7.

Form of

real estate.

Where a testator had agreed to grant easements, and infants were entitled to the land, a person was appointed under this section to convey to a releasee to uses for the purpose of granting the easements and subject thereto to the uses of the will (Re Taylor, 1866, W. N. 5). For orders under this section, see Seton, 503, 535, 4th ed.

With regard in general to the form of orders vesting real estate the orders vesting order should describe the property (Re Ord, 3 W. R. 386). Land may be vested to uses to bar dower (Davey v. Miller, 1 Sm. & Giff. App. 19); but a declaration against dower will not be inserted (Ex p. Grieve, 5 D. G. & Sm. 436). Land has been vested to the use of such persons as an executor and executrix (who was a married woman) should by deed appoint, and in default in the executor and executrix (Re Powell, 4 K. & J. 338); and has been vested subject to a legacy (Re Ellerthorpe, 18 Jur. 669). See further as to forms of vesting orders of real estate, the note to sects. 10 and 34 (post, pp. 505, 522).

Contingent rights of infant trustees and mortgagees.

Court of

Chancery may convey the estate of a

trustee out of the jurisdiction of the court.

8. Where any infant shall be entitled to any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said court shall direct; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the contingent right (†).

(t) For forms of orders under this section, see Seton, 4th ed. 504.

9. When any person solely seised or possessed of any lands upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall be lawful for the said court to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate (u).

(u) If a lunatic trustee is out of the jurisdiction, a vesting order can be made under this section in Chancery alone (Re Gardner, 10 Ch. D. 29; see now 53 Vict. c. 5, ss. 135, 143, post, pp. 538, 540). A trustee will be treated as out of the jurisdiction, even where he appears by counsel (Stilwell v. Ashley, Seton, 520). Where a mortgagee who was a trustee absconded, the land was vested under this section in the cestui que trust (Re Barker, 58 L. T. 303). And where a mortgagee's heir was out of the jurisdiction, the land was vested in the mortgagee's executors (Re Skitter, 4 W. R. 791; see now Conv. Act, 1881, s. 30, post).

Where a trustee of a will disclaimed and the heir could not be found, a person was appointed to convey the land which had been sold in an administration action (Wilkes v. Groom, 8 D. M. & G. 205). An heir who was out of the jurisdiction was declared to be a trustee and his interest vested under this section in the executor (Hooper v. Strutton, 12 W. R. 367; see Re Badcock, 2 W. R. 386).

Where the legal interest in copyholds is vested in A. & B. as tenants in common, and A. is beneficially entitled to the whole, B. is solely seised within this section in one moiety in trust for A. (McMurray v. Spicer, 5 Eq. 538). And where the legal interest in freeholds is vested in A. and B. as joint tenants, and A. was beneficially entitled to the whole, B. is solely seised within this section of one moiety in trust for A. (Ib.)

Where a mortgagor under an equitable mortgage, the defendant in a 18 & 14 Vict. foreclosure suit, had absconded, an order was made declaring him a trustee c. 60, s. 9. and vesting the estate in the mortgagee (Lechmere v. Clamp, 30 Beav. 218; Mortgagor

31 Beav. 578). But the order will not be made on motion to make the foreclosure absolute; a separate application must be made (Smith v. Boucher, 1 Sm. & G. 72). Where a mortgagor was abroad, a vesting order was refused as to the last day of the term which he had covenanted to assign to a purchaser from the mortgagee (Re Propert, 22 L. J. Ch. 948).

For forms of orders under this section, see Seton, 4th ed. 504. The case of a trustee of stock being out of the jurisdiction or impossible to find is provided for by sect. 22, post, p. 510.

absconding.

cases where

10. When any person or persons shall be seised or possessed Court of any lands jointly with a person out of the jurisdiction of the make order in Court of Chancery, or who cannot be found, it shall be lawful persons are for the said court to make an order vesting the lands in the seised of lands person or persons so jointly seised or possessed, or in such last- jointly with parties out of mentioned person or persons together with any other person or jurisdiction of persons, in such manner and for such estate as the said court court, &c. shall direct; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate (v).

(v) This section is to be read "when any person or persons shall be seised or possessed of any lands upon any trust jointly, &c. (McMurray v. Spicer, 5 Eq. 539). The words "seised jointly" are not to be construed strictly as referring to a joint tenancy at law only (Re Greenwood, 27 Ch. D. 359), and include co-parceners (Ib.) A mortgagee having died intestate, the estate descended upon two co-parceners, one of whom was out of the jurisdiction, the estate was vested in the other alone (Re Templer, 4 N. R. 494). Where one of a bankrupt's assignees had gone abroad, the court made an order declaring him a trustee, and vesting the estate in the other assignees (Re Joyce, 2 Eq. 576). An order was made under this section as to one of several trustees who was a convict (Re Hulme, 57 L. T. 13).

Where one of several mortgagees who were trustees was abroad, his interest was vested in a transferee (Re Walker, 3 Ch. D. 209). But where realty was mortgaged to A. and B., and A. went abroad, it was held, upon payment off of the mortgage, that the court had no jurisdiction under this section to vest in the purchaser the estate of A. (Re Osborn, 12 Eq. 392).

Under this section the court will make an order vesting lands in a new Form of trustee jointly with continuing trustees (Re Bute, Johns. 15; see also order. Smith v. Smith, 3 Drew. 72); notwithstanding the doubts suggested in Re Watt (9 Hare, 106), and Re Plyer (9 Hare, 220). Service was dispensed

with on the person abroad (Re Greenwood, 27 Ch. D. 359).

For form of order under this section, see Seton, 4th ed. 504.

trustees.

11. When any person solely entitled to a contingent right in Contingent any lands upon any trust shall be out of the jurisdiction of rights of the Court of Chancery, or cannot be found, it shall be lawful for the said court to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said court shall direct; and the order

18 & 14 Vict. shall have the same effect as if the trustee had duly executed a c. 60, s. 11. conveyance so releasing or disposing of the contingent right (»).

Court may

cases where

persons are

jointly en

titled with

others out of

(r) For forms of orders under this section, see Seton, 4th ed. 505.

12. When any person jointly entitled with any other person make order in or persons to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery or cannot be found, it shall be lawful for the said court to make an order disposing of the contingent right of the person out of the the jurisdic jurisdiction, or who cannot be found, to the person or persons so jointly entitled as aforesaid, or to such last-mentioned person or persons together with any other person or persons; and the right in lands. order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance so releasing or disposing of the contingent right (s).

tion of the court to a contingent

When it is uncertain

which of several trustees was the survivor.

When it is uncertain whether the

(8) For form of order under this section, see Seton, 4th ed. 505.

13. Where there shall have been two or more persons jointly seised or possessed of any lands upon any trust, and it shall be uncertain which of such trustees was the survivor, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the survivor of such trustees had duly executed a conveyance or assignment of the lands in the same manner for the same estate (†).

(t) For form of order under this section, see Seton, 4th ed. 505.

14. Where any one or more person or persons shall have been seised or possessed of any lands upon any trust, and it shall last trustee be not be known, as to the trustee last known to have been seised living or dead. or possessed, whether he be living or dead, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the last trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate (u).

When trustee dies without

an heir.

(u) For form of order under this section, see Seton, 4th ed. 505.

15. When any person seised of any lands upon any trust shall have died intestate as to such lands without an heir, or shall have died and it shall not be known who is his heir or devisee, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the heir or devisee of such

trustee had duly executed a conveyance of the lands in the same 13 & 14 Vict. c. 60, s. 15. manner for the same estate (2).

(x) From the use of the word "seised" it was inferred that this section does not apply to leaseholds (Re Mundel, 8 W. R. 683), which, however, can be dealt with under sect. 34 (Re Driver, 19 Eq. 352).

Under the Conv. Act, 1881, s. 30, trust estates now devolve on the personal representative unless of copyhold tenure (50 & 51 Vict. c. 78, s. 45; see Re Mills, 37 Ch. D. 312). In the case of a bare trustee dying before 1882, see V. & P. Act, 1874, s. 5 (post, p. 567); 38 & 39 Vict. c. 87, s. 48. Under sects. 15 and 28 combined, the court vested copyholds, the sole trustee of which had died intestate without an heir, in the c. q. t. who was absolutely entitled (Re Godfrey, 23 Ch. D. 205). Where as a security for a loan land was conveyed on trust for sale and payment of the loan, and of the balance to the borrower, "his executors, administrators, and assigns," and the lender died intestate and without an heir, a vesting order was made under this section, the deed which operated as a conversion being more than a mere mortgage (Re Underwood, 3 K. & J. 745; see Re Keeler, 11 W. R. 62).

A bastard sold a reversionary interest in realty to which he was entitled under a will; the trustees of the will subsequently conveyed the legal estate to the bastard who died without children: an order was made under this act vesting the legal estate in the purchaser (Re Wilkinson, 12 W. R. 522). For form of order under this section, see Seton, 4th ed. 506.

16. When any lands are subject to a contingent right in an Contingent unborn person or class of unborn persons who upon coming into right of unexistence would in respect thereof become seised or possessed of born trustee. such lands upon any trust, it shall be lawful for the Court of Chancery to make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn person or class of unborn persons would upon coming into existence be seised or possessed of in such lands (z).

(z) Orders have been made under this section, vesting in purchasers under a decree the rights and interests of unborn children (Wake v. Wake, 1 W. R. 283); and discharging in favour of purchasers the rights of unborn persons claiming under a settlement (Hargreaves v. Wright, 1 W. R. 408). For form of order under this section, see Seton, 4th ed. 506.

[Sects. 17 and 18 were repealed by 15 & 16 Vict. c. 55, s. 2, post.]

19. When any person to whom any lands have been con- Power to conveyed by way of mortgage shall have died without having vey in place entered into the possession or into the receipt of the rents and of mortgagee. profits thereof, and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same, or such last-mentioned person shall consent to an order for the reconveyance of such lands, then in any of the following cases it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; that is to say,

When an heir or devisee of such mortgagee shall be out of

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