Trustee

retiring where

breach of trust con

templated.

Stamps.

Costs of appointment.

63), s. 1, in these Acts, as in all Acts passed after 1850, the singular includes the plural, and vice versa, unless a contrary intention appear.

As to the appointment of new trustees of land held in trust for religious or educational purposes, see the Trustees Appointment Acts, 1850 to 1890, namely, 13 & 14 Vict. c. 28 (Peto's Act), 32 & 33 Vict., c. 26, and 53 & 54 Vict. c. 19, by s. 3 of which the power of appointment contained in any other Statute for the time being in force is made applicable.

As to the appointment of new trustees on summons see R. S. C., Order 55, rule 13A.

As to the responsibility of a trustee who retires with the knowledge that his retirement is likely to be followed by a breach of trust, see Lewin, 752, and cases there referred to; and as to the duty of an incoming trustee to see that the trust estate is in a proper state of investment, see Lewin, 217; and as to his freedom from responsibility in respect of incumbrances affecting the trust estate which are not disclosed to him, though known to the retiring trustee, see Hallows v. Lloyd, 39 Ch. D. 686.

As to the stamp duty on appointments of new trustees, see the Stamp Act, 1891, Sched. tit. APPOINTMENT; Hadgett v. The Commissioners, &c., 3 Ex. D. 46; 4 Dav. Prec., 609.

As to the costs of the appointment, see Harvey v. Olliver, W. N. 1887, p. 149; 31 Sol. J. 640.

See further as to appointments of new trustees, Lewin on Trusts, 728 et seq.; 4 Dav. Prec. 605 et seq.; Elph. Introd. p. 484.

CLAUSES.

Appointment of trustee where the power is contained

tlement or

I. IN EXERCISE of the power for this ppose by the hinbfe recited indre of the day of, or, "by the within written indre," or, "ppl indre," or, "by the hinbfe recited will of the sd X.," given to the sd, donee or donees of power, & in the set of every or any other power enablg him [them] in this behalf will, with he the sd, donee, doth [they the sd, donees, do] hby (a) appt variations. the sd, new tree or trees, to be a tree [trees] in the place of the sd, deced or outgoing tree or trees, for the pposes of the sd indre of the day of, or, "the within written indre," or, "the sd will [& codls] of the sd X.," or such of the same pposes as may be subsistg and capable of takg effect.

Appointment of

II. IN EXERCISE of the power for this ppose by the statute in

(a) If the consent of any person is required to the appointment, add here "with the consent (hby testified) of the sd consentg pty or pties."

under

that behalf or, if the statutory power is exply incorpd with or trustee witht rarion in the instrumt creatg the trust, "by the jt operon statutory of the settlemt or will, & "the statute in that behalf" given power (b). to the sd, donee or donees of power, & of every, &c., as in last

form.

ment where more than

trustees.

III. IN EXERCISE, &c., as above form I. or II., he the sd, Appointdonee, doth [they the sd, donees, do] hby appt the sd, new tree or trees, to be a tree [trees] in the place of the sd, deced or one set of outgoing tree or trees, for all the pposes for wch the sd, deced or outgoing tree or trees, was [were] appted a tree [trees] by the sd, settlemt or will, or as the case may be, or such, &c., as in form I.

tate (c).

IV. The sd A. & B., apptors, hby declare that all & singr the Declaration vesting hds, revy intts, pols, things in action, chattels, effects, & ppty trust esspecified in the schdle hto, & the rt to rece & recover all such things in action, or as the case may be, & all other (if any) hds, chattels, & ppty, whether real or psonal (includg things in action, & the rt to rece & recover the same), wch are now subjt to the trusts of the sd indre of settlemt of, &c., or, "the sd will & codls of the sd X.," (not being a legal este or intt in copyhd or customary lands or hds, & not being lands or hds vested in the sd, outgoing & continug trees, or any of them, by way of mtge for securg moy subjt to the sd trusts) shl vest in the sd, continug & new trees, their hrs, exs, ads, & assns resply (accdg to the nature of the ppty), as jt tenants for all such este & intt as the sd, outgoing & continug trees, or any of them had thrin resply immedly bfe the exon of these psnts, & upon the trusts & subjt to the powers & provons applicable thto resply by virtue of the sd indre of settlemt, or, “ will & codls," or orwise.

66

V. AND IT IS HBY agrd & decld that the sd, new & continug Declaration (if any) trees, their [hrs] (e), exs, ads, & assns, shl hold the sd, of trust (d). stks, shares, &c. [when the same shl have been transferred

(b) See above, p. 99.

(c) See p. 103 et seq.; and for a form where a trustee retires without a new trustee being appointed under the Trustee Act, 1893, s. 11, see infra, p. 129.

(d) This clause though usual is of course not necessary, as the trustees As to demust necessarily hold the property upon the trusts whether they so declare claration or not. The declaration if amounting to a covenant (see Isaacson v. Harwood, of trust.

(e) See note (a) next page.

Power for solicitortrustee to charge

into their names], or, "all & singr the sd & premes
[when the assurce & transfer thof shl have been made to them
as afsd]" upon the trusts & subjt to the powers & provons
applicable thto [or upon, & subjt to wch the same ought to be
held] by virtue of the sd indre of the
"will [& codls] of the sd X." or orwise.

day of

or,

VI. AND THE sd tenant-for-life doth hby covt with the sd solor-tree that he, the sd solor-tree shl be entled to make & rece, & that the sd tenant-for-life, his hrs, exs, or ads, will pay or procure to be pd to the sd solor-tree all such chges & emolumts for business done by him in relon to the exon of the trusts of the within written indre, as he wd have been entled to make & rece in respt thof, if he had not been a tree (b)].

Recitals.

Word
"heirs,"

when re-
quired.

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) (c).

THIS INDRE, made, &c., BETN A., of, &c., widow, formerly B. within named, 1; C., retirg tree, 2; D., continug tree, 3; E. & F., new trees, 4. WHAS a marre betn the within named

3 Ch. 225), and the deed is executed by the trustees (Richardson v. Jenkins, 1 Dr. 477), would create a specialty debt in an action for breach of trust, so as to improve the remedy against them, having regard to the Trustee Act, 1888, s. 8; but this is of small moment.

(a) By the effect of the Conv. Act, 1881, s. 30, as modified by the Copyhold Act, 1894, s. 88, the word "hrs" is not required except in the case of copyholds to which the trustees have been admitted.

(b) As to the right of a solicitor-trustee to charge, see infra, SETTLEMENTS. Of course this is a mere personal covenant of the covenantor and does not affect the other cestui que trusts.

(c) It is desirable that the deed should be executed by the new trustee to signify his acceptance of the office. As to the consent of a new trustee to act where the appointment is made by the Court, see R. S. C., Order 38,

husband. Present

K. & B., now A. was duly solemnised shortly after the exon of Marriage. the within written indre: AND WHAS the sd K. died on the Death of day of —; AND WHAS divers changes in the investmt of & other dealgs 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, & portions thof have been applied or disposed of for the advancemt of chn of the sd marre, & orwise, psuant to the trusts & powers of the sd indre, & the trust-funds now remaing subjt to the subsistg trusts thof consist of the sum of 23 p.c. Consold Stk, & £ Deb. Stk of the

:

trustee.

Desire to

Desire to appoint.

Funds to

Rly Co. AND WHAS the within named L., deced tree, died on Death of the day of AND WHAS the sd C. is desirous of being dischged from the trusts of the within written indre: AND retire. WHAS the sd A. is desirous of apptg the said E. & F. to be trees of the same indre in the place of the sd L. & C.: AND WHAS the sd respive sums of stk are intd to be forthwith transferred be transby the sd C. & D. into the jt names of the sd D., E., & F. (d). NOW THIS INDRE WITNETH that in exercise, &c., appt by AppointA. of E. & F. as new trees in place of L. & C., p. 106, Declon ment. of trust, p. 107. IN WITS, &c. (e).

ferred.

II.

APPOINTMENT by SURVIVING TRUSTEES, with the
consent of the HUSBAND and WIFE, of a NEW TRUSTEE
in the place of a DECEASED TRUSTEE of a settlement of
PERSONALTY, consisting of a REVERSIONARY interest in
STOCK, receivable on the death of the wife's father, an
ANNUITY Covenanted to be paid by the latter during his
life, and a sum secured by the BOND or COVENANT, and

r. 19A. For variations where the deed is supplemental to the settlement instead of being endorsed, see above, p. 71, note; and below, Precedent VII.; as to various points of law and practice, see note above, p. 99.

(d) The transfer of the funds ought not in strict propriety to be made

till after the appointment, but is sometimes made before.

(e) Where special formalities of execution are prescribed by the power, Special for the deed may be executed according to such formalities, or in the presence malities. of two witnesses in the ordinary mode, see 22 & 23 Vict., c. 35, s. 12.

Neglect of this may invalidate the appointment.

Recitals. Death of trustee. Wife's father living.

Desire to appoint. Appointment. Assignment.

As to form

of convey

ance of trust estate

where there

is a continuing trustee.

As to implied covenant

against incumbrances.

a POLICY on the life of the HUSBAND. There having been a prior endorsed appointment of a NEW TRUstee. ASSIGNMENT of the trust property by the SURVIVING TRUSTEE to HIMSELF and the NEW TRUSTEE (a). (Endorsed on the settlement.)

day of

PARTIES, the above named K., the tree appted by the prior endorsed deed, 1; the within named A., & B. his wife, formerly C. within named, 2; L., new tree, 3. WHAS the within named H., deced tree, died on the : AND WHAS the within named X., wife's father, is still livg: AND WHAS the sd K., with the consent of the sd A. & B., is desirous of apptg the sd L. to be a tree of the within written indre in the place of the sd H. NOW THIS INDRE WITNETH that in exercise, &c., apptmt by K., with consent of A. & B. of L. as tree in the place of H., p. 106: AND THIS INDRE ALSO WITNETH that in psuance of the sd apptmt, the sd K., as tree (b), with

(a) By 22 & 23 Vict., c. 35, s. 21. leaseholds and personalty (other than legal choses in action) were made assignable by a person to himself jointly with another or others, so as to dispense with the necessity (which arose from the rule that a person could not convey to himself) for employing two deeds (an assignment to a provisional trustee and a re-assignment by him), in order to vest property of that description on the appointment of a new trustee, where there was a continuing trustee. A similar enactment is contained in the Conv. Act, 1881, s. 50, as to freeholds and things in action. The difficulty was previously got over in the case of freeholds by the aid of the Statute of Uses, but the late Act renders it unnecessary in future to have recourse to that machinery; and this assimilation of the form of conveying realty to that of personalty often enables the two to be conveniently combined in one clause. The alternative mode of vesting the trust estate by the declaration of the appointor might be used in this case; see above, p. 103, and form iv., p. 107.

(b) The covenant against incumbrances by the conveying parties, which it was usual to insert in the conveyance of the trust estate, is now implied by making them convey as trustees (see the Conv. Act, 1881, s. 7, sub-s. 1, F., and CONVEYANCES ON SALE), whether in a conveyance of freeholds, leaseholds, or personalty, or (having regard to the definition of "conveyance," and "convey" in s. 2) a covenant to surrender copyholds. In the 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 grantees jointly (see the first paragraph of s. 7), so that the continuing trustee would be both a covenantor and covenantee; but this is disregarded in practice, the covenant being at the best of little or no value. In this work the words implying statutory covenants for title, &c., under the Conv. Act, 1881, s. 7, namely, "as beneficial owner," as trustee," &c., are printed in distinctive type as in the text, as a reminder to the draftsman that they have a special import.

99 66