59 & 60 Vict. c. 35, s. 3. 'May be liable." Cases on section generally. The words "or may be liable" appear to point to doubtful questions of construction (Re Grindey, Clews v. Grindey, 1898, 2 Ch. 598). As regards the section generally, a narrow construction ought not to be adopted (Re Grindey, Clews v. Grindey, 1898, 2 Ch. 601; Re Kay, Mosley v. Kay, 1897, 2 Ch. 524); and it should be carefully but not grudgingly construed in favour of trustees (Re Roberts, Knight v. Roberts, 76 L. T. 485). In view of the fact that a trustee cannot now as of course procure a trust to be executed by the court, the act was passed to enable the court in a proper case to remedy the hardship of the previous law (Perrins v. Bellamy, 1899, 1 Ch. 800, 802; Re Roberts, Knight v. Roberts, 76 L. T. 484). The fact that the trustee does not apply to the court for directions is important (Re Kay, Mosley v. Kay, 1897, 2 Ch. 523). But in a proper case he may be excused for omitting to apply (Re Grindey, Clews v. Grindey, 1898, 2 Ch. 593; see Perrins v. Bellamy, 1899, 1 Ch. 802). "Honestly." To obtain relief the trustee must have acted "honestly and reasonably." It was said by Kekewich, J., in one case, that a trustee who does nothing and accepts without explanation what is said by his co-trustee, is dishonest (2nd Dulwich, &c. Society, 68 L. J. Ch. 198; see Re Smith, Hands v. Andrews, 1893, 2 Ch. 11). But this seems inconsistent with the ruling of the C. A. in the last-mentioned case (1893, 2 Ch. 18). "Reasonably." Instances in which relief has been granted. Relief refused. "Reasonably" means reasonably as trustees (Re Grindey, Clews v. Grindey, 1898, 2 Ch. 601). In some cases a test, apparently applied to ascertain whether a trustee has acted reasonably, has been to see whether he would have so dealt with his own money (Re Stuart, Smith v. Stuart, 1897, 2 Ch. 590; Re Turner, Barker v. Ivimey, 1897, 1 Ch. 542). It has been said, however, that it is not enough to show this, though it would be a point in his favour (Re Barker, Ravenshaw v. Barker, 77 L. T. 714). It was said in another case that this would not be material except as to bona fides (Re De Clifford, De Clifford v. Quilter, 1900, 2 Ch. 716; compare Rae v. Meek, 14 App. Cas. 569, 570.) In the case of investments on mortgage, the requirements of sect. 8 of the Trustee Act, 1893, constitute a standard by which reasonable conduct is to be judged; though noncompliance with them is not necessarily fatal to an application for relief (Re Stuart, Smith v. Stuart, 1897, 2 Ch. 591, 592; see Waite v. Parkinson, 85 L. T. 456). The conduct of a trustee in investing on mortgage was held not reasonable (Chapman v. Browne, 1902, 1 Ch. 805). Relief has been granted under the section in the following cases :— Where an executor had paid legatees, and the assets subsequently proved insufficient for the debts, the relief being given as to some only of the payments (Re Kay, Mosley v. Kay, 1897, 2 Ch. 518); where a testator directed his trustees to maintain his estate in the investments existing at his death, and they did not call in a promissory note (Re Grindey, Clews v. Grindey, 1898, 2 Ch. 593); where trustees having no power of sale sold leascholds on the advice of their solicitor that they had such a power (Perrins v. Bellamy, 1899, 1 Ch. 797); where executors paid money to their solicitors in reliance on their statements that it was required for the purposes of administration (Re De Clifford, De Clifford v. Quilter, 1900, 2 Ch. 707); where an executor abstained on reasonable grounds from attempting to recover a debt due to the estate (Re Roberts, Knight v. Roberts, 76 L. T. 479). Relief has been refused where, after a writ had been issued against him, a trustee continued to make payments to a tenant for life without applying to the court for directions (Re Kay, Mosley v. Kay, 1897, 2 Ch. 518); also in the case of a trustee who was party to an investment on mortgage held to be improper from the nature and value of the property, though he acted in reliance on his co-trustee who was solicitor to the trust (Re Turner, Barker v. Ivimey, 1897, 1 Ch. 536; see Re Stuart, Smith v. Stuart, 1897, 2 Ch. 583; and also Waite v. Parkinson, 85 L. T. 456, where no costs were given against the trustee; Chapman v. Brown, 1902, 1 Ch. 785); where a trustee allowed his co-trustee, a member of the firm of solicitors acting for the trust, to receive trust funds which were paid in to the account of the firm (Wynne v. Tempest, 1897, W. N. 43, where the trustee was not charged with interest); where trustees for the purpose of 59 & 60 Vict. investment allowed trust money to be under the control of their solicitor c. 35, s. 3. who misappropriated it (Evans Williams v. Byron, 18 T. L. R. 172; see Wyman v. Paterson, 1900, A. C. 280); where a sole executrix postponed for fourteen years the sale of investments which ought to have been sold within a year from the death, the executrix not being allowed to set off against the loss suffered on some investments the gain on others (Re Barker, Ravenshaw v. Barker, 77 L. T. 712). [Sect. 4 gives power to make rules for carrying into effect this act. Rules were made in 1897, which will be found in the Annual Practice, Vol. 2; also in the current indexes to the Law Reports for 1897 and 1899; and see Seton, 6th ed. 1279.] 5. In this act― The expression "official of the court" means the holder of Definitions. The expression "prescribed" means prescribed by rules 6.-(1.) This act may be cited as the Judicial Trustees Act, Short title, 1896. (2.) This act shall not extend to any charity, whether subject to or exempted from the Charitable Trusts Acts, 1853 to 1894. (3.) This act shall not extend to Scotland or Ireland. (4.) This act, except as by this act otherwise provided, shall come into operation on the 1st day of May, 1897. extent, and commence ment of act. ABSENCE, beyond the seas, of creditor, does not prevent time running, 218, 232, 244. of defendant, prevents time running, 218, 232, 244, 245. of person claiming land or rent, does not prevent time what is beyond the seas, 156, 222, 245. decree may be made in absence of trustee, 787. ACKNOWLEDGMENT. See ACKNOWLEDGMENT OF DEEDS - ACKNOW- LEDGMENTS UNDER STATUTES OF LIMITATION. by testator of his signature to will, 445, 446. of debt under seal, implies covenant to pay, 405. of deeds not necessary before inrolment under Fines and Recoveries Act, of right to production of title-deeds, 565–567. ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN, certificates, index of, 330. no longer necessary, 329. commissioners for taking, appointment of, 323, 324. fees of, 333. index of special commissioners, 332. interested parties, should not be, 329, 330, 331. lien of, on papers, 324. lists of perpetual commissioners, 323. perpetual, 323, 324. special, 324, 325. compel, Court cannot, 323. contracts, in case of, 315. costs allowable to solicitors, 332. county court judge may take, 323. court, payment out of money out of, not necessary for, 315. declaration that commissioner not interested necessary, 330, 331. dower, extinguishment of, by, 314. entail, on barring, 295. examination on taking, 323, 331. inquiry as to provision made for married woman on, 331. fees for taking, &c., 333. interested parties not to take, 329, 330, 331. declaration as to, 330, 331. memorandum to be indorsed on deed, 325. effect of, 329. form of, 331. necessary, cases in which it is, 314, 322, 333, 337, 356. real estate, in dealing with, 313 et seq., 337, 356. unnecessary, cases in which it is, as to real estate, 315, 343. protector, in the character of, 322. schools, in conveying sites for, 323. since 1882..343. where the concurrence of the husband is dispensed with, 326. |