c. 145, s. 17.

Appointment of

17. Any person entitled to appoint or obtain the appointment 23 & 24 Vict. of a receiver as aforesaid may from time to time, if any person or persons has or have been named in the deed of charge for that purpose, appoint such person or any one of such persons receiver. to be receiver, or if no person be so named, then may, by writing delivered to the person or any one of the persons entitled to the property subject to the charge, or affixed on some conspicuous part of the property, require such last-mentioned person or persons to appoint a fit and proper person as receiver, and if no such appointment be made within ten days after such requisition, then may in writing appoint any person he may think fit.

the mortgagor.

18. Every receiver appointed as aforesaid shall be deemed to Receiver deemed be the agent of the person entitled to the property subject to the to be the agent of charge, who shall be solely responsible for his acts or defaults, unless otherwise provided for in the charge.

19. Every receiver appointed as aforesaid shall have power Powers of reto demand and recover and give effectual receipts for all the ceiver. rents, issues and profits of the property, of which he is appointed receiver by action, suit, distress or otherwise, in the name either of the person entitled to the property subject to the charge, or of the person entitled to the money secured by the charge, to the full extent of the estate or interest which the person who created the charge had power to dispose of.

removed.

20. Every receiver appointed as aforesaid may be removed Receiver may be by the like authority or on the like requisition as before provided with respect to the original appointment of a receiver, and new receivers may be appointed from time to time.

ceive a commis

21. Every receiver appointed as aforesaid shall be entitled to Receiver to reretain out of any money received by him, in lieu of all costs, sion not exceedcharges and expenses whatsoever, such a commission, not ex- ing five per cent. ceeding five per centum on the gross amount of all money received, as shall be specified in his appointment, and if no amount shall be so specified, then five per centum on such gross amount.

22. Every receiver appointed as aforesaid shall, if so directed Receiver to inin writing by the person entitled to the money secured by the sure, if required. charge, insure and keep insured from loss or damage by fire,

out of the money received by him, the whole or any part of the property included in the charge (whether affixed to the freehold or not) which is in its nature insurable.

by him.

23. Every receiver appointed as aforesaid shall pay and Application of apply all the money received by him in the first place in dis- moneys received charge of all taxes, rates and assessments whatsoever, and in payment of his commission as aforesaid, and of the premiums on the insurances, if any, and in the next place in payment of all the interest accruing due in respect of any principal money then charged on the property over which he is receiver, or on any part thereof, and, subject as aforesaid, shall pay all the residue of such money to the person for the time being entitled to the property subject to the charge, his executors, administrators or assigns.

23 & 24 Vict. c. 145, s. 24.

This part to re

24. The powers and provisions contained in this part of this act relate only to mortgages or charges made to secure money advanced or to be advanced by way of loan, or to secure an

late to charges by existing or future debt.

way of mortgage

only.

On what secu

rities trust funds may be invested.

Trustees may ap ply income of property of infants, &c. for their mainte

nance.

PART III.

Provision as to Investment of Trust Funds, appointment and powers of Trustees and Executors, &c.

25. Trustees having trust money in their hands which it is their duty to invest at interest shall be at liberty, at their discretion, to invest the same in any of the parliamentary stocks or public funds, or in government securities, and such trustees shall also be at liberty, at their discrection, to call in any trust funds invested in any other securities than as aforesaid, and to invest the same on any such securities as aforesaid, and also from time to time, at their discretion, to vary any such investments as aforesaid for others of the same nature: provided always, that no such original investment as aforesaid (except in the Three per Cent. Consolidated Bank Annuities), and no such change of investment as aforesaid, shall be made where there is a person under no disability entitled in possession to receive the income of the trust fund for his life, or for a term of years determinable with his life, or for any greater estate, without the consent in writing of such person (ƒ).

(ƒ) Further provisions as to investments are contained in 22 & 23 Vict. c. 35, s. 32, ante, p. 724; 23 & 24 Vict. c. 38, ss. 10, 11, ante, pp. 727, 728. Lord St. Leonards observes, it is not likely that the provisions of the 25th section will be acted upon after the powers which have been conferred on trustees by the statutes referred to. (Sugd. on Statutes, p. 308, 2nd ed.)

26. In all cases where any property is held by trustees in trust for an infant, either absolutely, or contingently on his attaining the age of twenty-one years, or on the occurrence of any event previously to his attaining that age, it shall be lawful for such trustees, at their sole discretion, to pay to the guardians (if any) of such infant, or otherwise to apply for or towards the maintenance or education of such infant, the whole or any part of the income to which such infant may be entitled in respect of such property, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such maintenance or education, or not; and such trustees shall accumulate all the residue of such income by way of compound interest, by investing the same and the resulting income thereof from time to time in proper securities, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen: provided always, that it shall be lawful for such trustees at any time, if it shall appear to them expedient, to apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year (g).

(g) In cases not within the above section, and where there is no express power in a settlement authorizing maintenance, it is usual to apply to the

Court of Chancery for an order for the maintenance of an infant; as to which see Daniell, Ch. Pr. 1198 et seq., 5th ed.

According to the decisions before this act, in the case of a legacy given to a class, where some or all of the class must eventually take the fund, or where the persons entitled in remainder consent, the court will allow maintenance to the individuals composing the class, even before their shares have become absolutely vested. (Lewin, 422, 5th ed.; 3 Davidson, Conv. 175, 3rd ed.)

It is not considered that the above clause dispenses with the necessity of inserting in settlements the ordinary maintenance and accumulation clauses. (2 Prideaux, Conv. 175, 7th ed.; 3 Davidson, Conv. 178, 3rd ed.)

27. Whenever any trustee, either original or substituted, and whether appointed by the Court of Chancery or otherwise, shall die, or desire to be discharged from or refuse or become unfit or incapable to act in the trusts or powers in him reposed, before the same shall have been fully discharged and performed, it shall be lawful for the person or persons nominated for that purpose by the deed, will or other instrument creating the trust (if any), or if there be no such person, or no such person able and willing to act, then for the surviving or continuing trustees or trustee for the time being, or the acting executors or executor or administrators or administrator of the last surviving and continuing trustee, or for the last retiring trustee, by writing, to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying, or desiring to be discharged, or refusing or becoming unfit or incapable to act as aforesaid (h); and so often as any new trustee or trustees shall be so appointed as aforesaid all the trust property (if any) which for the time being shall be vested in the surviving or continuing trustees or trustee, or in the heirs, executors or administrators of any trustee, shall with all convenient speed be conveyed, assigned and transferred so that the same may be legally and effectually vested in such new trustee or trustees, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require; and every new trustee or trustees to be appointed as aforesaid, as well before as after such conveyance or assignment as aforesaid, and also every trustee appointed by the Court of Chancery either before or after the passing of this act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the deed, will or other instrument creating the trust (i).

(h) The usual indemnity clause is supplied by 22 & 23 Vict. c. 35, s. 31, ante, p. 724.

As to the construction of the common power to appoint new trustees, see 3 Davidson, Conv. 228 et seq., 3rd ed.; and as to the points of difference between the common power and the power contained in the above section, see 3 Davidson, Conv. 721, 3rd ed. Where an instrument contains no express power to appoint new trustees, and the power given by this section does not apply, an application must be made to the court; as to which, see ante, p. 667 et seq. It is considered that this section gives a sufficient and convenient power to appoint new trustees in ordinary cases. (See 3 Davidson, Conv. 228, 3rd ed.) It is usual, however, in marriage settlements of personal estate to add a clause specifying by whom the power is to be exercised. (3 Davidson, Conv. 720, 3rd ed.) As to marriage settlements of

23 & 24 Vict.

c. 145, s. 26.

Provisions for appointment of death, &c.

new trustees on

23 & 24 Vict. c. 145, s. 27.

Appointment of new trustees in cases herein named.

Trustees' receipts to be discharges.

Executors may compound, &c.

real estate, see id. 1026. And in both marriage settlements of personal estate and in wills, it is usual to add a clause enabling the number of trustees to be augmented or reduced. (3 Davidson, Conv. 720, 3rd ed.)

This section does not take away the jurisdiction of the Court of Chancery to increase the original number of trustees. (Viscountess D'Adhemar v. Bertrand, 35 Beav. 19.)

Where an instrument contains an express power to appoint new trustees in more restricted terms than the statutory power, it seems doubtful whether the latter is excluded. (See Re Jackson, 16 W. R. 572; and sect. 32, post.) Where a will contained an express power exerciseable by the surviving or continuing trustees, and all the trustces having died, an application was, made to the court to appoint new trustees, Malins, V.-C., made the order, although it was opposed on the ground, that under this section the executor of the surviving trustee was competent to make the appointment. (b.) But where a deed of separation contained no express power, and one of the trustees having died, the husband applied that a trustee, whom he had himself selected, should be appointed by the court, Lord Romilly dismissed the petition with costs, on the ground that by this section the power was conferred on the surviving trustee. (Re Soulby, 21 W. R. 256.)

(i) Before this act trustees appointed by the court could not exercise a power operating under the Statute of Uses, nor a power to appoint new trustees, nor a power which indicated personal confidence. (3 Davidson, Conv. 242, 3rd ed.)

28. The power of appointing new trustees hereinbefore contained may be exercised in cases where a trustee nominated in a will has died in the lifetime of the testator (k).

(k) Where a trustee became insane during the life of a testator, Lord Selborne held that the power given by sect. 27 did not apply. (See Newton v. Newton, noticed in 55 L. T. 56.)

29. The receipts in writing of any trustees or trustee for any money payable to them or him by reason or in the exercise of any trusts or powers reposed or vested in them or him shall be sufficient discharges for the money therein expressed to be received, and shall effectually exonerate the persons paying such money from seeing to the application thereof, or from being answerable for any loss or misapplication thereof (1).

(1) As to a purchaser's obligation to see to the application of his purchase-money in the case of sales to pay debts or legacies, see the note to 22 & 23 Vict. c. 35, s. 23, ante, p. 488.

Before these statutes a purchaser was obliged, in the case of a sale by trustees, himself to see to the application of the purchase-money, except where the trustees had either an express or implied power to sign receipts. Such a power was implied (1) where there was a trust for immediate sale; (2) where a special trust was annexed to the purchase-money. See further, Lewin on Trusts, 334 et seq., 5th ed.

30. It shall be lawful for any executors to pay any debts or claims upon any evidence that they may think sufficient, and to accept any composition, or any security, real or personal, for any debts due to the deceased, and to allow any time for payment of any such debts as they shall think fit, and also to compromise, compound, or submit to arbitration all debts, accounts, claims and things whatsoever, relating to the estate of the deceased, and for any of the purposes aforesaid to enter into, give and execute such agreements, instruments of composition, releases and other things as they shall think expedient, without being responsible for any loss to be occasioned thereby.

PART IV.

General Provisions.

31. For the purposes of this act, a person shall be deemed to be entitled to the possession or to the receipt of the rents and income of land or personal property, although his estate may be charged or incumbered, either by himself or by any former owner, or otherwise howsoever to any extent; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and income as aforesaid, unless they shall concur therein (m).

(m) As to the effect of incumbrances upon a power of leasing and a power to consent to a sale, see the cases quoted ante, pp. 374, 375.

32. None of the powers or incidents hereby conferred or annexed to particular offices, estates or circumstances, shall take effect or be exerciseable if it is declared in the deed, will or other instrument creating such offices, estates or circumstances that they shall not take effect; and where there is no such declaration, then if any variations or limitations of any of the powers or incidents hereby conferred or annexed are contained in such deed, will or other instrument, such powers or incidents shall be exerciseable or shall take effect only subject to such variations or limitations (n).

(n) This is an option which will probably be frequently acted upon, more particularly owing to the latter portion of the section, to which Lord St. Leonards always entertained and expressed a strong objection; for nothing can be more difficult, not to say dangerous, than to attempt to amalgamate the powers in the settlement and the powers in the act, or to engraft the latter in the former. Where the settlement is purposely silent as to the powers conferred by the act, and the settlor approves of and chooses to rely upon them, the only inconvenience will be that the settlement itself will not inform the persons claiming under it of the powers vested in them, but it will be necessary to refer to the act for that purpose. (Sugden on Powers, 877, 878, 8th ed.; Sugden on Statutes, 301, 2nd ed.)

33. Nothing in this act contained shall be deemed to empower any trustees or other persons to deal with or affect the estates or rights of any persons soever, except to the extent to which they might have dealt with or affected the estates or rights of such persons if the deed, will or other instrument under which such trustees or other persons are empowered to act had contained express powers for such trustees or other persons so to deal with or affect such estates or rights.

of act.

34. The provisions contained in this act shall, except as here- Commencement inbefore otherwise provided, extend only to persons entitled or acting under a deed, will, codicil or other instrument executed after the passing of this act, or under a will or codicil confirmed or revived by a codicil executed after that date.

35. This act shall not extend to Scotland.

Extent of act.