56 & 57 Vict.

(3.) No purchaser, upon any sale made by a trustee, shall be c. 53, s. 14. at liberty to make any objection against the title upon the ground aforesaid.

Power to sell

(4.) This section applies only to sales made after the 24th day of December, 1888.

This section replaces sect. 3 of the Trustee Act, 1888 (see Dunn v. Flood, 25 Ch. D. 629; 28 Ch. Div. 586).

15. A trustee who is either a vendor or a purchaser may sell under 37 & 38 or buy without excluding the application of sect. 2 of the Vendor and Purchaser Act, 1874.

Vict. c. 78.

Married

woman as

See V. and P. Act, 1874, ante, p. 545. This section replaces sect. 3 of that act.

16. When any freehold or copyhold hereditament is vested in a married woman as a bare trustee she may convey or surrender may convey. it as if she were a feme sole.

bare trustee

Power to authorise receipt of money by banker or solicitor.

This section replaces sect. 6 of the V. and P. Act, 1874, ante, p. 546. A married woman who was a trustee for sale was held (after order for sale and purchase-money paid into court) to be a bare trustee (Re Docura, Docura v. Faith, 29 Ch. D. 693; see Re Cunningham v. Frayling, 1891, 2 Ch. 567).

A married woman who was a mortgagee was held on payment off to be a bare trustee (Re Brooke and Fremlin, 1898, 1 Ch. 650; Re Howgate and Osborn, 1902, 1 Ch. 451), but not a married woman who was an ordinary trustee for sale (Re Harkness and Allsopp, 1896, 2 Ch. 358).

Various Powers and Liabilities.

17.-(1.) A trustee may appoint a solicitor to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust, by permitting the solicitor to have the custody of, and to produce, a deed containing any such receipt as is referred to in 44 & 45 Vict. sect. 56 of the Conveyancing and Law of Property Act, 1881; and a trustee shall not be chargeable with breach of trust by reason only of his having made or concurred in making any such appointment; and the producing of any such deed by the solicitor shall have the same validity and effect under the said section as if the person appointing the solicitor had not been a trustee.

c. 41.

(2.) A trustee may appoint a banker or solicitor to be his agent to receive and give a discharge for any money payable to the trustee under or by virtue of a policy of assurance, by permitting the banker or solicitor to have the custody of and to produce the policy of assurance with a receipt signed by the trustee, and a trustee shall not be chargeable with a breach of trust by reason only of his having made or concurred in making any such appointment.

(3.) Nothing in this section shall exempt a trustee from any liability which he would have incurred if this act had not been passed, in case he permits any such money, valuable consideration, or property to remain in the hands or under the control of

the banker or solicitor for a period longer than is reasonably 56 & 57 Vict. necessary to enable the banker or solicitor (as the case may be) c. 53, s. 17. to pay or transfer the same to the trustee.

(4.) This section applies only where the money or valuable consideration or property is received after the 24th day of December, 1888.

(5.) Nothing in this section shall authorise a trustee to do anything which he is in express terms forbidden to do, or to omit anything which he is in express terms directed to do, by the instrument creating the trust.

This section replaces sect. 2 of the Trustee Act, 1888.

A trustee can execute a deed by a solicitor as attorney, and can empower that solicitor to receive trust money by producing a proper deed for the purpose. But the trustee must himself appoint the solicitor, and must himself permit the production of the deed. A deed executed by the attorney of a trustee acting under a general power is not sufficient within sub-sect. (1) (Re Hetling and Merton, 1893, 3 Ch. 280). See further the cases quoted under sect. 56 of the Cony. Act, 1881, ante, p. 597.

Sub-sect. (3) is a statutory declaration of the law as to trustees allowing trust money to be received by a solicitor. Such receipt is no part of the duty of a solicitor as such (Wyman v. Paterson, 1900, A. C. 280). See further the note to sect. 24 (post, p. 763).

insure

18. (1.) A trustee may insure against loss or damage by fire Power to any building or other insurable property to any amount (in- building. cluding the amount of any insurance already on foot) not exceeding three equal fourth parts of the full value of such building or property, and pay the premiums for such insurance out of the income thereof or out of the income of any other property subject to the same trusts, without obtaining the consent of any person who may be entitled wholly or partly to such income.

(2.) This section does not apply to any building or property which a trustee is bound forthwith to convey absolutely to any beneficiary upon being requested to do so.

(3.) This section applies to trusts created either before or after the commencement of this act, but nothing in this section shall authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by the instrument creating the trust.

This section replaces sect. 7 of the Trustee Act, 1888.

trustees of

19.-(1.) A trustee of any leaseholds for lives or years which Power of are renewable from time to time, either under any covenant or renewable contract, or by custom or usual practice, may, if he thinks fit, leaseholds and shall, if thereto required by any person having any beneficial to renew and interest, present or future, or contingent, in the leaseholds, use his best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose may from time to time make or

raise

money

for the purpose.

56 & 57 Vict. c. 53, s. 19.

Power of trustee to

give receipts.

Power for

executors and trustees to

compound, &c.

concur in making a surrender of the lease for the time being subsisting, and do all such other acts as are requisite: Provided that, where by the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew or to contribute to the expense of renewal, this section shall not apply unless the consent in writing of that person is obtained to the renewal on the part of the trustee.

(2.) If money is required to pay for the renewal, the trustee effecting the renewal may pay the same out of any money then in his hands in trust for the persons beneficially interested in the lands to be comprised in the renewed lease, and if he has not in his hands sufficient money for the purpose, he may raise the money required by mortgage of the hereditaments to be comprised in the renewed lease, or of any other hereditaments for the time being subject to the uses or trusts to which those hereditaments are subject, and no person advancing money upon a mortgage purporting to be under this power shall be bound to see that the money is wanted, or that no more is raised than is wanted for the purpose.

(3.) This section applies to trusts created either before or after the commencement of this act, but nothing in this section shall authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by the instrument creating the trust.

This section replaces sects. 10 and 11 of the Trustee Act, 1888, which latter sections replaced sects. 8 and 9 of 23 & 24 Vict. c. 145. As to the apportionment of the liability for the fines as between tenant for life and remainderman, see Re Baring, Jeune v. Baring, 1893, 1 Ch. 61, and the cases quoted Tudor, L. C. 4th ed. 134.

20.-(1.) The receipt in writing of any trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to him under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same from seeing to the application or being answerable for any loss or misapplication thereof.

(2.) This section applies to trusts created either before or after the commencement of this act.

This section replaces sect. 36 of the Conv. Act, 1881 (see the Law of Prop. Amdt. Act, 1859, s. 23, and the note thereto, ante, p. 416; Hockey v. Western, 1898, 1 Ch. 350).

21. (1.) An executor or administrator may pay or allow any debt or claim on any evidence that he thinks sufficient.

(2.) An executor or administrator, or two or more trustees, acting together, or a sole acting trustee where by the instrument, if any, creating the trust a sole trustee is authorised to execute the trusts and powers thereof, may, if and as he or they may think

fit, accept any composition or any security, real or personal, 56 & 57 Vict. for any debt or for any property, real or personal, claimed, c. 53, s. 21. and may allow any time for payment for any debt, and may compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the testator's or intestate's estate or to the trust, and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done by him or them in good faith.

(3.) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained.

(4.) This section applies to executorships, administratorships and trusts constituted or created either before or after the commencement of this Act.

This section replaces sect. 37 of the Conv. Act, 1881, which itself replaced sect. 30 of 23 & 24 Vict. c. 145. The last mentioned section (which was not confined to mere money claims, Re Warren, Weadon v. Reading, 51 L. T. 561; 53 L. J. Ch. 1016) justified a compromise by an executrix with the testator's surviving partner and his creditors as to the sale of partnership real estate (West of England Bank v. Murch, 23 Ch. D. 138; see also, Re Owens, 47 L. T. 64).

trustees.

22.-(1.) Where a power or trust is given to or vested in two Powers of or more trustees jointly, then, unless the contrary is expressed two or more in the instrument, if any, creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being.

(2.) This section applies only to trusts constituted after or created by instruments coming into operation after the 31st day of December, 1881.

This section replaces sect. 38 of the Conv. Act, 1881.

respect of

23. A trustee acting or paying money in good faith under or Exoneration in pursuance of any power of attorney shall not be liable for any of trustees in such act or payment by reason of the fact that at the time of certain powers the payment or act the person who gave the power of attorney of attorney. was dead or had done some act to avoid the power, if this fact was not known to the trustee at the time of his so acting or paying.

Provided that nothing in this section shall affect the right of any person entitled to the money against the person to whom the payment is made, and that the person so entitled shall have the same remedy against the person to whom the payment is made as he would have had against the trustee.

This section replaces sect. 26 of the Law of Property Amendment Act,

56 & 57 Vict. c. 53, s. 23.

Implied indemnity of trustees.

Acts of
co-trustees.

According to the common law, a power of attorney was instantly revoked by the death of the grantor, and acts afterwards done under it, even where it was given for value, were invalid (Watson v. King, 4 Camp. 272). In equity, however, where a power had been given for value, acts done under it after the death of the grantor, bona fide and without notice, were valid (Bailey v. Collett, 18 Beav. 179, and cases there quoted; Hatch v. Searles, 2 Sm. & Giff. 155; Carter v. White, 20 Ch. D. 228). Powers of attorney issued by the Bank of England for the transfer of stock contained a clause making a transfer valid, notwithstanding the previous death of the grantor; as to which, see Kiddill v. Furnell (3 Sm. & Giff. 428). Where a legacy was bequeathed to a married woman abroad with her husband, and the husband required the legacy to be paid under a power of attorney, the executor was justified in paying the money into court, because until reduction into possession by the husband, the wife's right might have accrued by the death of the husband (Re Jones, 3 Drew. 680).

As to powers of attorney, see now Conv. Act, 1881, s. 47, Conv. Act, 1882, ss. 8 and 9, ante, pp. 594, 614.

24. A trustee shall, without prejudice to the provisions of the instrument, if any, creating the trust, be chargeable only for money and securities actually received by him notwithstanding his signing any receipt for the sake of conformity, and shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any banker, broker, or other person with whom any trust moneys, or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless the same happens through his own wilful default; and may reimburse himself, or pay or discharge out of the trust premises, all expenses incurred in or about the execution of his trusts or powers.

This section replaces sect. 31 of the Law of Property Amendment Act, 1859.

The indemnity clause formerly expressly inserted in instruments and now implied therein by this section, did little more than what the court would have done without the clause (Dawson v. Clarke, 18 Ves. 254). As to the general right of a trustee to be indemnified by the cestui que trust personally, see Hardoon v. Belilios, 1901, A. C. 118; Dodson v. Downey, 1901, 2 Ch. 620.

As regards the acts of co-trustees, a trustee may be liable (1) where he hands over trust money without securing its due application; (2) where he allows a co-trustee to receive money without making due inquiry as to his dealing with it; and (3) where he becomes aware of a breach of trust committed or meditated and does not proceed for restitution or redress (Wilkins v. Hogg, 8 Jur. N. S. 25). A trustee was made liable for permitting his co-trustee to retain sole possession of bonds to bearer (Lewis v. Nobbs, 8 Ch. D. 591). The usual indemnity clause would not protect a trustee in such cases (Mucklow v. Fuller, Jac. 198; Dix v. Burford, 19 Beav. 409; Brumridge v. Brumridge, 27 Beav. 5). But where a will specially provided that any trustee who should pay over to his cotrustee or should concur in any act enabling him to receive moneys for the general purposes of the will should not be obliged to see to the application thereof, nor be rendered responsible by express notice of the misapplication thereof, trustees paying over money to a co-trustee were protected (Wilkins v. Hogg, 3 Giff. 116; 10 W. R. 47; Pass v. Dundas, 43 L. T. 665). See in general as to the right of the passive trustee to indemnity from the acting trustee, Bahin v. Hughes (31 Ch. Div. 390).