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c. 87.

15 & 16Vict. rest and dividends to arise from the government or parliamentary securities standing to the said account, intituled "Account of Monies placed out to provide for the Officers of the High Court of Chancery," or by a sale of so much of the said securities as may be necessary for that purpose.

Interpreta

tion of term

ellor."

LV. In the construction of this act, unless such "Lord Chan- meaning be repugnant to or inconsistent with the context, the expression "Lord Chancellor" shall mean and include the Lord High Chancellor of Great Britain, and the Lord Keeper or Lords Commissioners of the Great Seal of the United Kingdom for the time being.

Trustees

may pay

or transfer

stocks and

securities

of Chancery.

TRUSTEES RELIEF ACT.

10 & 11 VICT. c. 96.

An Act for better securing Trust Funds, and for the Relief of Trustees.

[22d July, 1847.

WHEREAS it is expedient to provide means for better securing trust funds, and for relieving trustees from the responsibility of administering trust funds in cases where they are desirous of being so relieved: Be it enacted, That all trustees, executors, administrust monies trators or other persons, having in their hands any monies belonging to any trust whatsoever, or the major part of them, shall be at liberty, on filing an into the Court affidavit shortly describing the instrument creating the trust, according to the best of their knowledge and belief (a), to pay the same, with the privity of the accountant-general of the High Court of Chancery, into the Bank of England, to the account of such accountant-general in the matter of the particular trust (describing the same by the names of of the parties, as accurately as may be, for the purpose of distinguishing it (b)), in trust to attend the orders of the said court (c); and that all trustees or other persons having any annuities or stocks

c. 96.

standing in their name in the books of the governor 10&11 Vict. and company of the Bank of England or of the East India Company or South Sea Company, or any government or parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said accountant-general, with his privity, in the matter of the particular trust (describing the same as aforesaid), in trust to attend the orders of the said court; and in every such case the receipt Receipt of of one of the cashiers of the said bank for the money so paid, or, in the case of stocks or securities, the of proper officertificate of the proper officer, of the transfer or ficient disdeposit of such stocks or securities, shall be a suffi- charge. cient discharge to such trustees or other persons for the money so paid (d), or the stocks or securities so transferred or deposited.

(a) See the orders, post, pp. 117-119, as to the contents of the affidavit.

(b) Where executors paid money into court under this act, to an account headed, "In the matter of the trusts of the will of S. Y," the court held, that the account was too general to enable it to act under this statute, as it involved the necessity of seeing to the payment of the debts, and to the due administration of the estate. (Re Joseph's Will, 11 Beav. 625.) To enable the court to distribute a fund under this act, it must stand to an account which separates it from the other assets, and disconnects it from all the other trusts of the will. (In re Everett, 12 Beav. 485.)

(c) Lord Cottenham, C., in reference to proceedings under this act of parliament, is reported to have said, "I know that some parties have much complained of this act, as giving to the court the power of doing that, without an investigation of the merits, which could not have been done if such an act had not passed. There cannot be a greater mistake or misrepresentation than that. All which the act of parliament has done is to facilitate the mode of getting money into court. It saves the expense of a suit in many cases, saves the expense of new trustees, and leaves this court open to receive trust money, without delay or expense, in cases where the trustee could pay it into court, after all those proceedings which are necessarily expensive, and necessarily produce delay, by filing a bill for the purpose of obtaining the money on the answer of the trustees. But the money being there, it is

bank cashier, or certificate

cer, to be suf

10&11Vict. just as if it were there in any other form." (In re Bloyes' c. 96. Trust, 2 Hall & T. 150, 151.) In proceeding under this act Lord Langdale, M. R., conceived an executor must take on himself the responsibility of saying that the fund belongs to those to whose particular account he desires the fund to be carried; but that he declines to take upon himself the responsibility of ascertaining the persons or making the payment. It is very important that this distinction should be generally known. (Re Joseph's Will, 11 Beav. 626.) Trustees are not bound to take trouble, or to incur risk, in ascertaining the validity of claims upon the trust fund; but may discharge themselves of all responsibility whenever they please, by paying the fund into court under this act, and they will be entitled to their costs. (Re Croyden's Trust, 19 Law J. Ch. 172.) Stock standing in the joint names of surviving and deceased trustees may be transferred by the survivors to the accountantgeneral under this act. (Re Parry, 6 Hare, 306; 12 Jur. 721.)

Court of
Chancery
to make or-

ders on peout bill, for

tition, with

trust monies

tration of trust.

(d) A trustee paying into court a sum of money under this act, although such sum may be less than the amount of the trust fund in his hands, is discharged as to the money so paid in; and after such payment the parties beneficially interested can proceed only under this act to recover the money so paid in; and the ordinary jurisdiction of the court, as against the trustee, is confined to the balance which may remain due from the trustee in respect of the trust fund after such payment. (Goode v. West, 9 Hare, 378.)

II. That such orders as shall seem fit shall be from time to time made by the High Court of Chancery in respect of the trust monies, stocks or securities so paid in, transferred and deposited as application of aforesaid, and for the investment and payment of and adminis- any such monies, or of any dividends or interest on any such stocks or securities, and for the transfer and delivery out of any such stocks and securities, and for the administration of any such trusts generally, upon a petition (e) to be presented in a summary way to the Lord Chancellor or the Master of the Rolls, without bill, by such party or parties, as to the court shall appear to be competent and necessary in that behalf, and service of such petition shall be made upon such person or persons as the court shall see fit and direct; and every order made upon any such petition shall have the same authority and effect, and shall be enforced and subject to re-hearing and appeal, in the same manner as if the

c. 96.

same had been made in a suit regularly instituted 10&11 Vict. in the court; and if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be instituted.

(e) A transfer of a fund paid into court under this act can only be directed by an order made on a petition. (Re Masslin's Trust, 21 Law J. Ch. 53; 15 Jur. 1073.) The petition should state in terms the affidavit made on payment of the money into court. (Re Levett's Trusts, 19 Law T. 244.) A party entitled to a life interest in a fund paid in under this act was allowed to apply for the payment of the dividends to him in formá pauperis. (Re Money, 13 Beav. 109; 15 Jur. 51; 20 Law J. Ch. 274.) A married woman, having a general power of appointment over a reversionary trust fund, subject to a previous life estate in another person, appointed it by way of mortgage, with a power of sale, under which it was afterwards sold. Her husband became bankrupt, and, after the determination of her life estate, the trustees paid the fund into court under this act. The purchasers thereupon presented a petition for a transfer of the fund to them. The petition was only served upon the trustees. The court made the order, subject to a direction that it should not be drawn up for a fortnight, and that the husband's assignees should be served with notice that the fund would be transferred, if no objections were made within that period. (Ex parte Stutely, 1 De G. & S. 703.) An order was made on a petition presented by guardians of the poor under this act, for payment to them out of a fund paid in by trustees, in which a lunatic was interested, of sums expended by the guardians in the support of the lunatic, the Lord Chancellor holding, that by the act the court was placed in the position of the trustees, and that the trustees might have made the payment under the 7 & 8 Vict. c. 101, s. 27, which authorizes any person having the property of a lunatic to defray charges incurred by the parish in his maintenance, and makes the receipt of the overseer a good discharge. (In re Upfull's Trust, 3 Mac. & G. 281.) A sum of money representing a share of a testator's estate, on which, while reversionary, an annuity had been charged, was paid into court by the trustees of the testator's will, under the act. A petition was presented by a party claiming the fund, and was served on another party, who disputed his title, and claimed the fund for himself. It having been agreed between these parties that the case should be treated as if a petition had been presented by each, the Vice-Chancellor of England ordered payment of the fund to the actual petitioner. The Lord Chancellor, however, reversing the decision, made an order to bring the fund into court, accompanied by a declaration negativing the title of the petitioner, to whom it had

10 & 11 Vict. been paid. (In re Bloyes' Trust, 1 Mac. & G. 488; 2 Hall & c. 96. T. 140; 14 Jur. 49; 19 L. J. Chanc. 89.) The Trustees Relief Act provides no special means for making the costs, which trustees may deduct before paying money into court under its provisions, the subject of inquiry. (16.) A sum of money was paid into court by an executor, in the belief that it was the clear residue. Debts were afterwards discovered to be due from his estate; and on a petition, consented to by the parties beneficially interested, an order was made for payment out to the executor of the requisite amount, he undertaking to apply it according to the trusts of the will. (Ex parte Tournay, 14 Jur. 263; 19 L. J. Chanc. 257.) A lady whose title to a sum of stock depended upon there having been no issue of her marriage with her late husband, presented a petition stating that fact, and praying that the stock, which had been transferred into court under this act, might be transferred to her. The court, notwithstanding the petition was supported by affidavits, refused to make the order until the fact, upon which the petitioner's title depended, had been found by the master. (Re the Trustees of Wood's Settlement, 15 Sim. 469.)

Costs under the act.

A testator gave 2000l. to trustees, in trust for such of his nephews and nieces as should be living at his wife's death, and the issue of such of them as should be then dead. Upon the wife's death the trustees paid the 2000l. into court under this act. Afterwards a petition was presented by certain persons claiming shares of the 2000, as being the issue of a deceased nephew of the testator, and praying to have those shares paid to them. The court, notwithstanding the petitioners submitted to bear the costs of the inquiries necessary to ascertain their title, considered that those costs ought to be borne by the testator's estate, and also that the petitioners might be entitled to interest on their shares; and therefore it directed the inquiries, but without prejudice to the petitioners' right to file a bill; and it reserved the consideration of costs, and ordered the trustees to be served with the order. (Re Sharpe's Trustees, 15 Sim. 470; 12 Jur. 492; 17 L. J. Ch. 395.) Where trustees had paid money into court under this act, it was held, that the diocesan letters of administration were sufficient to authorize the administrator to receive the money out of court. (Re Knowles, 1 De G. Mac. & G. 60; Re Spencer, 9 Hare, 410.) Where an executor pays a legacy into court under the act, his costs of paying it in are to be borne by the estate, but those of paying it out by the legatee. (In re Cawthorne, 12 Beav. 56; 18 L. J. Ch. 116.) See Re Trusts of Sharpe's Will, 12 Jur. 492, where it was said that the object of the act was merely to relieve trustees, and that it never was the intention of the legislature to make cestuis que trust pay costs, which before the act would have been borne by the testator's estate. Upon a petition for payment out of court of the amount of a particular legacy paid in under this act, the court has no jurisdiction to order payment of any of the costs in the matter out of the testator's general residuary

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