Appointment. Substitution. XVI. APPOINTMENT by deed of a GUARDIAN by a FATHER (a), for his Infant SON and DAUGHTER, after his decease. KNOW ALL MEN BY THESE PSNTS, that I, A., of, &c., hby appt B., of, &c., to be the gdian of my son, R., & daur S., or, "hby dispose of the custody & tuition of my son R., & daur S., to B., of, &c.," from & after my death durg the minority of my sd son & daur resply: Bur in case the sd B. shl die in my lifetime or durg the minority of my sd son or daur, or shl refuse to act, then I appt C., of, &c., to be the gdian of them resply after my death & the death or refusal to act of the sd B., durg their respive minorities. IN WITS, &c. Appoint ment. Appointment of guardian by infant father. XVII. APPOINTMENT under seal of a GUARDIAN by an KNOW, &c., that I, A., an infant of the age of - yrs, eldest (a) An infant father, though now incapacitated from making a will, can appoint guardians by deed, 12 Car. 2, c. 24, s. 8; but the appointment must be subject to the rights conferred on the mother by the Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27, ss. 2 and 3. The execution should be attested by two witnesses; but qu., see Morgan v. Hatchell, 19 Beav. 86. As to the right of a father to determine the religion in which his children shall be brought up after his death, see Re Scanlan, 40 Ch. D. 200; Re Nevin, [1891] 2 Ch. 299; Re McGrath, [1892] 2 Ch. 496; [1893] 1 Ch. 143. (b) See Simpson on Infants, p. 212. XVIII. APPOINTMENT of a GAMEKEEPER by a LORD of a MANOR (c). in Appoint ment. Power to kill game &c. KNOW, &c., that I, A., of, &c., lord of the manor of the coy of, do hby (by virtue of the statute in that behalf) appt & depute B., of, &c., to be my gamekeeper within the sd manor durg my pleasure, & to preserve the game within the limits of the sd manor: AND I hby give him full power & authority [to kill the game within the limits of the sd manor and seize for my use, or, “for his own use, or for the use of any other engines, pson or psons whomsr," And also] to seize & take within the sd limits for my use, or, "for his own use," &c., all such dogs, nets, & other engines & instrumts for the killg & takg of game as shl be used upon the sd lands by any pson not authorised to kill game for want of a game licence, AND further to do & exte all acts & things wch may be requisite for the preservon of the game within the sd manor, & for the discovery of offenders thrin, accdg to the laws of this realm, & for wch this shl be his sufft warrant. IN WITS, &c. XIX. APPOINTMENT of a PARISH CLERK (d). KNOW, &c., that I, the Rev. A., vicar, [or, rector] of the parish church of, in the coy of, do hby nominate & (c) See 1 & 2 Will. 4, c. 32, ss. 13, 14, 16, and as to Wales, s. 15; the appointment must be registered with the Clerk of the Peace for the county or place within which the manor is situate (s. 16). As to game licences, see 23 & 24 Vict. c. 90; as to licences to carry a gun, see 33 & 34 Vict. c. 57, ss. 1-5. As to the right of an occupier to kill ground game, see the Ground Game Act, 1880, 43 & 44 Vict. c. 47. (d) As to Parish Clerks, see Stephen's Comm., vol. ii., p. 713. A mandamus lies to a rector to appoint a parish clerk, Rex v. St. Anne's, Soho, 3 Burr. 1877; and to restore a parish clerk, but not a deputy parish clerk, to his office, Rex v. Warren, Cowp. 370, Anon., Lofft, 434. It is therefore not unusual for an incumbent to appoint some friend as parish clerk, and for the latter to appoint a deputy, who performs the duties of the office and who can be removed at any time. As to the right to appoint during a sequestration, see Lawrence v. Edwards, [1891] 1 Ch. 144. K.E.-VOL. I. H Appointment. Fees. appt B., of, &c., to be parish clerk of the sd parish church [in the room of C., deced], to have & exte the sd office by himself, [his deputy or deputies] durg the term of his life, & durg the same time to rece & take all such wages, fines, fees, dues, profits, & emolumts as belong, & are, & shl be due to the sd office, & of rt ought to belong to the same in as full & ample a mner as [the sd C. or] any of his predecessors, clerks of the sd parish church, have had or ought to have had as due & of rt accustomed. IN WITS, &c. APPOINTMENTS OF NEW TRUSTEES. PRELIMINARY NOTE. This trustees; Conv. Act, 1881, s. 31; Trustee Act, 1893. The power of appointing new trustees contained in Lord Cranworth's Act Statutory (23 & 24 Vict. c. 145, s. 27), was repealed by the Conv. Act, 1881 provisions as to ap(14 & 45 Vict. c. 41), and by s. 31, re-enacted with amendments. pointments section was itself repealed by the Trustee Act, 1893 (56 & 57 Vict. c. 53), of new and re-enacted, s. 10. The power under the Trustee Act, 1893, applies to the case of a trustee dying (expressly including (sub-s. 4) in the case of a will, death in the testator's lifetime), remaining out of the United Kingdom for more than twelve months (a case not provided for by Lord Cranworth's Act) (Re Stamford, 40 Sol. J. 114), desiring to be discharged, or refusing or being unfit or incapable to act. The power is vested in the person or persons, if any, nominated for the purpose by the instrument, if able and willing to act, or otherwise in the surviving or continuing trustees or trustee (which by sub-s. 4 includes a refusing or retiring trustee if willing to act, differing in this respect from Lord Cranworth's Act), or the personal representatives of the last surviving or continuing trustee. The statutory power applies, although the deceased or outgoing trustee was appointed by the Court (s. 10, sub-s. 1); and by s. 37 trustees appointed by the Court (whether before or after the Act) have all the same powers (including of course the powers of s. 10) as if they had been originally appointed by the instrument creating the trust. The Act provides (s. 10, sub-s. 2, which provision was not in Lord Increase or Cranworth's Act) that on an appointment being made the number of trustees reduction in number. may be increased or reduced, but not to less than two unless only one trustee was originally appointed. It is further provided (by s. 11, which provision also was not in Lord Cranworth's Act), 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 by deed without the appointment of a new trustee in his place. instru ments. All the above provisions are to apply to instruments executed before as Operation well as since the Act (except so far as they are excluded or varied by the of Act on terms of the instrument); but the repeal (by the Conv. Act, 1881, s. 71) previous of the clause in Lord Cranworth's Act is not to affect the operation of instruments executed before the Conv. Act, 1881. In the case of a settlement or will executed before 1882, and incorporating wholly or partially, and whether by express reference or not, the power in Lord Cranworth's Act, the new enactments will apply as supplemental to the former, if and so far as there is nothing in the terms of the instrument inconsistent with such application, so as to enable a new trustee to be appointed in place of one who has gone to reside abroad (Re Walker, 24 Case of concurrent powers of appointment. Case of trustees predeccas. ing testator. Trustee disclaiming, or becoming bankrupt, or lunatic. Ch. D. 698, where the persons nominated by the settlement, in 1878, to appoint new trustees, were held to be the proper persons to exercise the power of the Act of 1881; Re Coates, 34 Ch. D. 370), or the number of trustees to be increased or reduced, or a trustee to be discharged without appointing a new one in his place; and the statutory provisions will also operate by way of extension of an express power contained in the instrument in the absence of an indication of a contrary intention (Cecil v. Langdon, 28 Ch. D. 1; Re Coates, ubi sup.); and the statutory power has been held to be free from a fetter as regards consents imposed by the express power (Cecil v. Langdon, ubi sup.), or by special Act of Parliament (Re Lloyd, 32 Sol. J. 221), and to be exercisable where a husband and wife, joint donees of an express power, were living apart and unable to agree as to the appointment (Re Sheppard, W. N. 1888, 234). The saving clause in s. 71 of the Act of 1881, by which the repeal of the power in Lord Cranworth's Act is not to affect the operation of instruments executed before the repeal, seems to keep alive that power in cases in which it had been incorporated expressly or by implication in previous instruments, and if so an appointment of new trustees ought in such case to be made under the repealed clause, and not under the new one, even where they are concurrent, but some practitioners (it is believed) hold the contrary view. It is better in all cases to refer to the statutory power in general terms as follows" to the statute in that behalf." Although the statutory power (as well as the ordinary express power) provides for the case of a trustee of a will predeceasing the testator, and in case of the death of all the trustees is exercisable by the personal representatives of the last survivor, it seems doubtful whether it would be available in case all the trustees should predecease the testator (Re Orde, 24 Ch. D. 271; but see Re Ambler, 32 S. J. 541; 59 Law T. 210; Nicholson v. Field, [1893] 2 Ch. D. 511). A disclaiming trustee is conceived to be undoubtedly a refusing trustee within the statutory or the ordinary express power, although by the effect of the disclaimer he technically never became a trustee; see Lewin on Trusts, 738. As to a trustee becoming bankrupt, sec the Bankruptcy Act, 1883, s. 147, now repealed by the Trustee Act, 1893, and replaced by s. 25. The statutory power, which includes "unfitness," would usually be available in case of bankruptcy (Re Adams, 12 Ch. D. 634). But the provisions of the Act do not enable a new trustee to be appointed in the place of an infant (Re Tallatore, [1885] W. N. 191), though such an appointment can be made by the Court (Re Skelmerdine, 33 L. J. Ch. 474; Re Brunt [1883], W. N. 220). In the case of a lunatic trustee (whether so found or not), where there is no available express power, a new trustee may be appointed by the continuing trustees under s. 10 of the Trustee Act, 1893; and a vesting declaration may be made under s. 12 of that Act if applicable (Re Blake, W. N. 1887, p. 173); or a new trustee may be appointed and a vesting order made by the Judge in Lunacy under the Lunacy Act, 1890 (53 Vict. c. 5), ss. 135, et seq., or by the lunatic acting by his committee under an order in the lunacy, Lunacy Act, 1890, ss. 128, 129, and the Trustee Act, 1893, s. 40. By the Act of 1890 (s. 342) the corresponding provisions of the Trustee Acts, 1850 and 1852, have been repealed (except as to Ireland); and by the Trustee Act of 1893, s. 140 of the Act of 1890 has been repealed and replaced by s. 40; see also the definition of "land" in s. 341 of the Act of 1890, and of "seised" and “possessed," in the Lunacy Act, 1891 (54 & 55 Vict. c. 65), s. 28. The |