58 Vict. c. 5, s. 135. Cases under Trustee Act, 1850, s. 3. Whether application should be made in Chancery or lunacy. (5.) Where an order under this section vesting any copyhold land in any person or persons is made with the consent of the lord or lady of the manor, such land shall vest accordingly without surrender or admittance. (6.) Where an order is made appointing any person or persons to convey any copyhold land, such person or persons shall execute and do all assurances and things for completing the assurance of the lands; and the lord or lady of the manor shall, subject to the customs of the manor and the usual payments, be bound to make admittance to the land, and to do all other acts for completing the assurance thereof, as if the persons in whose place an appointment is made were free from disability and had executed and done such assurances and things. This section replaces (as to England) sects. 3 and 4 and parts of sects. 20 and 28 of the Trustee Act, 1850. Where one of four trustees became a lunatic, the trust property was, under sub-sect. (1) of the present section, vested in the other three trustees (Re Leon, 1892, 1 Ch. 348). Compare the similar orders made in Chancery under sects. 26 and 35 of the Trustee Act, 1893 (ante, pp. 767, 771, 781). When a person who had contracted to sell leaseholds went abroad and was found funatic there, an order was made under this section vesting the land in the purchaser, the order, however, not to be dated until after payment of the purchase-money (Re Pagani, 1892, 1 Ch. 236; see Re Beaufort, 1898, W. N. 148). Under the Trustee Act, 1850, it was held that sect. 3 applied where, on an order for sale instead of partition, one part owner was a lunatic, and a person was appointed to convey for him (Re Watson, 58 L. T. 509). In the case of a lease, the legal term could be vested, but not the benefit of a covenant for quiet enjoyment (Cowper v. Harmer, 57 L. T. 714). A mere power of sale could be vested (Re Boyce, 4 D. J. & S. 205). Where a lunatic held land in trust for A. absolutely, the court refused to vest the land in A., but appointed a new trustee and vested the land in him (Re Holland, 16 Ch. Div. 672). A mortgage vested in a lunatic mortgagee could be transferred under sect. 3 (Re Nicholson, 34 Ch. Div. 663; contra, Re Brown, 50 L. T. 373). Under the Trustee Acts, 1850 and 1852, questions frequently arose whether a vesting order should be made in lunacy, or in Chancery and lunacy, or in Chancery. It was held that, where a trustee or mortgagee was lunatic or of unsound mind, not so found, the vesting order could not be made in Chancery only (Jeffryes v. Drysdale, 9 W. R. 428; Re Mason, 10 Ch. 273; Re Nicholl, 18 W. R. 443; Re Martin, 34 Ch. D. 618); and, where it dealt exclusively with the estate of a lunatic trustee, should be made in lunacy only (Re Watson, 58 L. T. 509; see Re Watson, 19 Ch. D. 384; Re Jones, 33 Ch. Div. 414; Re Chauncey, 14 W. R. 849, where the fund was to come into court; see Re Dawson, 6 N. R. 346). Where interests of sane as well as lunatic trustees were dealt with, the order was made in both Chancery and lunacy (Re Pearson, 5 Ch. Div. 982; Re Druce, 46 L. T. 669; Re Chell, 49 L. T. 196; Re Davidson, 20 L. J. Ch. 644; Re Batho, 39 Ch. Div. 189). So also where part of the trust property was land in Ireland, as to which the Court of Lunacy had formerly no jurisdiction (Re Lamotte, 4 Ch. Div. 325; Re Smyth, 55 L. T. 37; see now Lunacy Act, 1890, s. 110). A vesting order might be made in Chancery only, where there had been an order for a sale (Herring v. Clark, 4 Ch. 167; Stamper v. Stamper, 46 L. T. 372); or where the lunatic trustee was out of the jurisdiction (Re Gardner, 10 Ch. D. 29), or was an infant (Re Arrowsmith, 4 Jur. N. S. 1123; 6 W. R. 642). Many of the above decisions were considered in a case since the Trustee Act, 1893, where, on an application in Chancery alone, the court refused s. 135. to make a vesting order as regards property vested in a sole trustee who 58 Vict. c. 5, was a lunatic not so found. The older cases appear to be still applicable (Re M., 1899, 1 Ch. 79). Where the fact of the lunacy was disputed, it was held under the Trustee Acts, 1850 and 1852, that the court had no jurisdiction (Re Walker, Cr. & Ph. 147; Re Campbell, 18 L. T. 202; see Re Combs, 51 L. T. 45). As to the mode and form of application, see Rules in Lunacy, post. For Practice. the form of a petition by committee of lunatic mortgagor, on payment off of mortgage, see Elmer, Pr. Lun. 240, 5th ed. Where the mortgagee was of unsound mind, and the mortgagor wished to pay off, it was said he should pay the money into court, and would then be entitled to a vesting order (Re Sparks, 6 Ch. Div. 361). See Re Wheeler (1 D. M. & G. 434), where it was said that in the case of a mortgagee found lunatic, the committee should petition. Where of three trustees, A., B., and C., B. was lunatic, and C. was a new trustee appointed under a power, and it was desired to vest in A. and C.; A. was appointed to convey the estate of himself and B. to himself and C. (Re Vicat, 33 Ch. Div. 103). For vesting order in the case of a lunatic tenant in tail, see Re Mason, Mason v. Mason (7 Ch. Div. 707). For form of vesting order, and of order appointing person to convey estates vested in lunatic, see Elmer, 318, 7th ed. See further, as to the form of orders vesting real estate, the note to sect. 26 of the Trustee Act, 1893, ante, p. 772. A petition for an order, vesting in new trustees property, a trustee of Service. which has been found lunatic, ought to be served on his committee (Re Saumarez, 8 D. M. & G. 390; and see Re Parker, 32 Beav. 580; Re Wylde, 5 D. M. & G. 25); but where the trustee is a person of unsound mind not found lunatic, he need not be served (Re East, 8 Ch. 735; Re Green, 10 Ch. 272; Re Weston, 1898, W. N. 151). Where a mortgagee became of unsound mind, it was said that the Costs, where mortgagor should bring the money into court and would then be entitled mortgagee or to a vesting order. The mortgagor would have to pay the costs of the his heir is a necessary petition, but would not be ordered to pay any costs to the mort- lunatic, gagee (Re Sparks, 6 Ch. D. 361). Where the mortgagee had been found lunatic and the committee petitioned, the petitioner's costs came out of the lunatic's estate (Re Wheeler, 1 D. M. & G. 434). But in such a case the mortgagor should not be served (Re Rowley, 1 D. J. & S. 417); and in no case can have costs out of the lunatic's estate (Re Phillips, 4 Ch. 629). The stamp on the vesting order must in any case be paid by the mortgagor (Re Thomas, 22 L. J. Ch. 858; Re Biddle, 23 L. J. Ch. 23). Where the heir of a mortgagee was a lunatic the mortgagor petitioning paid all costs (Re Stuart, 4 De G. & J. 319; Re Jones, 2 D. F. & J. 554). Where the lunatic mortgagee was a trustee, the trust appearing on the face of the mortgage, the mortgagor petitioning paid all costs (Re Lewis, 1 Mac. & G. 23); but where the trust did not appear, the costs of a petition by the committee and the co-trustees of the lunatic were paid out of the trust estate (Re Jones, 2 Ch. Div. 70; see Re Townsend, 1 Mac. & G. 686). Where a trustee becomes lunatic, and an application in lunacy is made where trustee for a transfer of the trust funds, no order will be made as to costs (Re a lunatic. Garden, 6 N. R. 347). As to the practice under former acts, see Ex p. Pearce (T. & R. 325). Sub-sect. 4 provides for the appointment of a person to convey, re- Appointing a placing part of sect. 20 of the Trustee Act, 1850, under which persons person to were appointed to convey on behalf of lunatics in the following cases. convey. Where one of several trustees was a lunatic and a new trustee had been appointed (Re Jones, Zincraft's Will, 33 Ch. Div. 414; see Re Mason, 10 Ch. 273); in such a case the person appointed may be a continuing trustee (Re Vicat, 33 Ch. Div. 103); where the customary heir of a vendor who had covenanted to surrender copyholds was lunatic (Re Cuming, 5 Ch. 72); in a partition action when one part owner was lunatic (Re Nicholson, 34 Ch. Div. 663); and where after a decree for sale in a partnership action one partner was of unsound mind (Herriny v. Clarke, 4 Ch. 167). 53 Vict. c. 5, But it was held that a conveyance under that section could not contain s. 135. any contract binding the lunatic or his estate, such as (in the case of a lease) a covenant for quiet enjoyment (Cowper v. Harmer, 57 L. T. 714). Power to vest right to transfer stock and sue for chose in action. - 136. (1.) Where a lunatic is solely entitled to any stock or chose in action upon trust or by way of mortgage, the judge in lunacy may by order vest in any person or persons the right to transfer or call for a transfer of the stock, or to receive the dividends thereof, or to sue for the chose in action. (2.) In the case of any person or persons jointly entitled with a lunatic to any stock or chose in action upon trust or by way of mortgage, the judge may make an order vesting the right to transfer or call for a transfer of the stock, or to receive the dividends thereof, or to sue for the chose in action either in such person or persons alone or jointly with any other person or persons. (3.) When any stock is standing in the name of a deceased person, whose personal representative is a lunatic, or when a chose in action is vested in a lunatic as the personal representative of a deceased person, the judge may make an order vesting the right to transfer or call for a transfer of the stock, or to receive the dividends thereof, or to sue for the chose in action in any person or persons he may appoint. (4.) In all cases where an order can be made under this section, the judge may, if it is more convenient, appoint some proper person to make or join in making the transfer. (5.) The person or persons in whom the right to transfer or call for a transfer of any stock is vested, may execute and do all powers of attorney, assurances, and things to complete the transfer to himself or themselves or any other person or persons according to the order, and the Bank and all other companies and their officers and all other persons shall be bound to obey every order under this section according to its tenor. (6.) After notice in writing of an order under this section, it shall not be lawful for the Bank or any other company to transfer any stock to which the order relates or to pay any dividends thereon except in accordance with the order. As to the meaning of "stock" and "transfer" in this section, see sect. 341, post, p. 803. The jurisdiction under this section cannot be exercised by a master under sect. 27 (1) of the Lunacy Act, 1891 (Re Langdale, 1901, 1 Ch. 3). The section replaces (as to England) sects. 5, 6, and parts of sects. 20, 26, 27 and 31 of the Trustee Act, 1850, and part of sect. 6 of the Trustee Act, 1852. The following cases were decided under those acts. The wife of a lunatic was sole surviving trustee of stock. An order was made, appointing new trustees in the place of the married woman and the deceased trustees, and vesting in the new trustees the right to transfer the stock (Re Wood, 3 D. F. & J. 125). The sole surviving trustee of stock being of unsound mind, the beneficiaries were appointed trustees and the stock vested in them (Re Currie, 10 Ch. Div. 93). The executors of an executor, one of whom was lunatic, were held to be "entitled" within the Trustee Act, 1850, when the stock was standing in the name of the original testator (Re Wacher, 22 Ch. Div. 535). Where 8. 136. one of the three executors of a surviving trustee of shares was of unsound 58 Vict. c. 5, mind, and the other two refused to act, an order was made vesting the right to transfer the shares in the beneficiaries (Re White, 5 Ch. 698). Where one of several trustees was lunatic the court vested the right to transfer stock in the remaining trustees (Re Watson, 19 Ch. Div. 384); and made such an order as to the whole fund when it was immediately divisible (Re Martyn, 26 Ch. Div. 745; see Re Wacher, 22 Ch. Div. 535); and as to a part which was immediately payable (Re Hodgson, Kenlis v. Hodgson, 11 Ch. Div. 888). But where there was a continuing trust it was said that a new trustee must be appointed (Re Nash, 16 Ch. Div. 503; Re Aston, 23 Ch. Div. 217; Re Ray, 47 L. T. 500; Re Hodgson, sup.; see Re Lamb, 28 Ch. Div. 77; Re Gardiner, 33 Ch. Div. 590; Re Peacock, 14 Ch. Div. 212; and the note, ante, p. 767). See now Re Leon, 1892, 1 Ch. 348, ante, p. 798. Where a lunatic was entitled jointly with a person out of the jurisdiction, and it was desired to vest in two new trustees already appointed, the stock was vested in the person out of the jurisdiction and then in the new trustees (Re Batho, 39 Ch. Div. 189; see Re Druce, 46 L. T. 669; Re Rolls Hoare, 1888, W. N. 94). Where two trustees transferred trust stock into the names of strangers, and one of the trustees subsequently became lunatic, the court would not, under the Trustee Act, 1850, make an order as to the retransfer of the stock (Re Stewart, 8 W. R. 297). Where a person of unsound mind was entitled to a sum of stock, as to Vesting orders part as trustee, and as to the residue beneficially, an order was made as to stock. enabling new trustees to receive the arrears of dividends on the whole sum 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 Re Gregson, 1893, 3 Ch. 233; Re C. M. G. Spinster, 1898, 2 Ch. 324; and the rules given in the note to sect. 35 of the Trustee Act, 1893, ante, p. 782. As to the mode and form of application, see Rules in Lunacy, post. Sub-sect. 4 replaces part of sect. 20 of the Trustce Act, 1850. As to its operation, see sect. 137; Re C. M. G. Spinster, 1898, 2 Ch. 324. 137. Where a person is appointed to make or join in making Person to be a transfer of stock, such person shall be some proper officer of appointed to the Bank, or the company or society whose stock is to be transferred. This section applies, so far as sect. 136 is concerned, only to sub-sect. 4 thereof (Re C. M. G. Spinster, 1898, 2 Ch. 324). transfer. 138. The powers conferred by this act as to vesting orders Charity may be exercised for vesting any land, stock, or chose in action trustees. in the trustee or trustees of any charity or society over which the High Court would have jurisdiction upon suit duly instituted, whether the appointment of such trustee or trustees was made by instrument under a power or by the High Court under its general or statutory jurisdiction. See sect. 39 of the Trustee Act, 1893, ante, p. 785. 139. The judge in lunacy may make declarations and give Declarations directions concerning the manner in which the right to any and direcstock or chose in action vested under the provisions of this act is to be exercised. tions. 53 Vict. c. 5, s. 140. Order to be conclusive evidence of 140. The fact that an order for conveying any land or releasing any contingent right has been founded upon an allegation of the personal incapacity of a trustee or mortgagee shall be conclusive evidence of the fact alleged in any court upon any allegation on question as to the validity of the order, but this section shall not prevent a judge of the High Court from directing a re-conveyance of any lands or contingent right dealt with by the order, or from directing any party to any proceeding concerning such land or right to pay any costs occasioned by the order when the same appears to have been improperly obtained. which it is founded. Power to appoint new trustees. Costs. Saving of power of High Court. Definitions. 141. In every case in which the judge in lunacy has jurisdiction to order a conveyance or transfer of land or stock, or to make a vesting order, he may also make an order appointing a new trustee or new trustees. This section replaces sect. 10 of the Trustee Act, 1852. In cases decided under the Trustee Acts, 1850 and 1852, and before the Lunacy Act, 1890, it was held that an order might be made in lunacy alone appointing new trustees in the place of former trustees, of whom some were dead and one a person of unsound mind not so found (Re Owen, 4 Ch. 782; Re Rolls Hoare, 1888, W. N. 94; see Re Green, 10 Ch. 272; Re Ormerod, 3 De G. & J. 249); and it was also held that an order might be made in Chancery alone appointing a new trustee in the place of a person of unsound mind not so found (Re Vickers, 3 Ch. D. 112; Re Martin, 34 Ch. D. 618). In a case decided since the Trustee Act, 1893, an order has been made in Chancery alone appointing a new trustee in a similar case (Re M., 1899, 1 Ch. 79). As to the consent of the new trustee to act, see r. 92 and Form 12, post, pp. 804, 805. 142. The judge in lunacy may order the costs of and incident to obtaining an order under the provisions of this act as to vesting orders and carrying the same into effect to be paid out of the land or personal estate or the income thereof in respect of which the order is made, or in such manner as the judge may think fit. See rules under this act, No. 110 (post, p. 804), and the note to sect. 38 of the Trustee Act, 1893, ante, p. 784. As to ordering payment of costs by the Bank of England, see Re Shortridge, 1895, 1 Ch. 278; Re C. M. G. Spinster, 1898, 2 Ch. 324. 143. The provisions of this act as to vesting orders shall not affect the jurisdiction of the High Court as to any lunatic trustee or mortgagee who is an infant. See sects. 26 and 35 of the Trustee Act, 1893 (ante, pp. 769, 779), and Re Arrowsmith (6 W. R. 642); and the remarks of Stirling, J., Re M. (1899, 1 Ch. 84). 341. In this act, if not inconsistent with the context- "Contingent right," as applied to lands, includes a con |