No. CXIX. Appointment of New Trustees by Virtue of a Power in a Settlement. No. CXIX. Of Trustees. Court of Chan cery. Obs. 1. By the 11 G. 4 & 1 W. 4, in cases of disability, or where Appointment by trustees are out of the jurisdiction, the Court of Chancery is empowered to appoint a trustee for the purpose of conveying any real estate, or (by ss. 9, 10) to assign any leasehold estate or stock; and (by s. 22) it is also empowered in certain cases to appoint new trustees summarily on petition; but the court will not exercise this power except in clear cases, In the matter of Nicholls, Minors, Lloyd and Goold, 17 (Cases temp. Sugden); In the matter of Gerald Fitzgerald, Petitioner, ib. 20; Whitley, Petitioner, Fisbourne, Respondent, ib. 23(a); see further Appendix, No. IV.; Dig. p. ii. tit. COURTS (EQUITY). 2. By the 29 C. 2, c. 3, s. 9, all grants or assignments of any trusts shall be in writing signed by the party granting or assigning the same, or else are utterly void. 3. A common deed stamp of 17. 15s. and a further progressive Stamp. duty of 11. 5s. for every 1080 words above the first 1080. days of of settlement This Indenture &c. see ante, No. LXXXV. Grant of an An- Recital of deed nuity. Betn (surviving trustees) of &c. of the first pt (husband) creating the of &c. and M. his wife of the second pt and (new trustee) of &c. power. of the third pt Whas (b) by indres of lease and release bearing date respively the which was in the yr 18 the release being of pts and made or expssd to be made betn &c. and purporting to be a settlement made previously to the marre then in contemplation and which soon after took effect betn the sd (husband and wife) certain freehold lds and hereds thin parlarly described were conveyed and assured to the sd (old trustees) their hrs and ass upon the trusts thin decld concerning the same In which sd indre is contd among other things a provo whby it is decld and agd that in case the sd (O. T.) or any or either of them or any succeeding trustees to be apptd in pursuance thof shd die or be desirous to quit and be dischagd from the trusts thby in them reposed or shd neglect or refuse or (a) Sugden's Acts, by Jemmett, 177, 2nd edit. No. CXIX. be incapable to act in the sd trusts it shd and might be lful to Of Trustees. and for the survors or survor of them or or. or ors. of them the sd (T.) by and with the consent of the sd (H.) and M. his wife or the survor of them testified in writing under their hand and seals and after the dece of the survor of them of his or their own proper authority to nominate and appt one or more new trustee or trustees in the room of such trustee or trustees so dying or desiring to be dischagd from or neglecting or refusing to act in the sd trusts and that the survor or or. trustee or trustees as afd shd do such acts deeds matters or things as shd be necessary for transferring and vesting the trust preses respively in him or them and such new trustee or trustees so as that the same shd and might be legally and effectually vested in such new trustee or trustees And that he or they shd and might act in the exon of the sd trusts as fully and effectually in all respects as if he or they had been originally nominated and apptd And whas the sd (resigning trustees) are desirous to give up and be dischagd from the trusts reposed in them by the sd in pt recited indre And whas the sd (O. T.) at the request of the sd (H.) and M. his wife and on the acceptance of the sd (N. T.) have agd to appt them the sd (N. T.) in the place and stead of the sd (resigning T.) in the manner hnaftr mentd Now this Indre witnesseth that in and by virtue and in exercise of the power and authority to the sd (H.) and M. his wife for that purpose in and by the sd in pt recited indre given and reserved they the sd (O. T.) by and with the consent and approbation of the sd (H.) and M. his wife testified by their being parties to and signing and sealing these prests do nominate and appt the sd (N. T.) to be trustees in the room and stead of the sd (R. T.) to act with the sd (O. T.) in the trusts mentd and decld in and by the hnbfe recited indre of settlmt And they the sd (O. T'.) do direct and appt that they the sd (H.) and M. his wife do also direct and appt the sd (R. T.) to make and join in making such transfer and transfers of the sd trust preses as shall or may be necessy or requisite for vesting the sd preses in the sd (N. T.) jointly with the sd (O. T.) Upon the Trusts and for the intents and purps and under and subject to the provos and agts in and by the sd hnbefe recited indre of settlement expssd and decld of and concerning the same or such of them as are now existing undetermined and capable of taking effect or as near thereto as may be (a) In witness &c. see ante, No. XLVI. No. CXIX. Of Trustees. Appointments in Deeds, see INDEX TO THE PRECEDENTS. (a) The conveyance to the new trustees may be made by a further testatum, if of freeholds, as follows: "And this Indre furr witnesseth That for the purpose of vesting the sd lds and heredts in the sd (new trustees) in pursuance and for the purps of the sd in pt recited &c. They the sd (O. T.) in conson of 5s. pd to them by the sd (N. T.) Have at the request and by the direction and apptmt of the sd (H.) and M. his wife testified &c. bargained sold released and conveyed and by these prests Do bargain &c. and also in conson of 5s. pd to the sd (H.) and M. his wife by the sd (N. T.) They the sd (H.) and M. his wife Have and each of them Hath granted bargained sold released and confirmed and by &c. Do and each of them Doth grant &c. unto the sd (N. T.) in their actual posson &c. and to their hrs and ass All &c. To Have and to Hold the sd messes &c. unto the sd (N. T.) to the use of the sd (O. and N. T.) upon and for such trusts ends intents and purps and subject to such powers provos agrts and indemnities as in and by the sd in part recited indre &c. are expssd and decld of and concerning the same to and for the end intent and purpe that they the sd (N. T.) may be enabled to perform and exte all such trusts and exercise all such powers as were and are in and by the sd in pt recited indre vested in and granted to the sd (O. T.) so far as the nature and circumstances of the case will permit. And the sd (O. T.) and each of them &c." (doth severally &c. covenant that they have done no act to incumber.) If the trust be as to leaseholds or other personalty, then, by a further testatum, the estate may be assigned by the old trustees to a nominal trustee "To Hold unto the sd (T.) for all the residue of the sd term &c. Upon Trust nevss that he the sd (T.) shall forthwith reassign and transfer the sd messe &c. unto the sd (N. and O. T.) their &c. to be held by them and the survor of them &c. upon the trusts and to and for the intents" &c. as above. And a reassignment by the nominal trustee in the usual terms, may be indorsed on the deed. If it be as to money in the funds, then, after reciting that the Bank Annuities in settlement have been transferred into the names of the new trustees &c. say "That this Indre furr witnesseth that it is hby covtd concluded decld and agd by and betn the pties hto and in parlar by and in behalf of the sd (N. T.) that the sd principal stock or sum of £ 3 per cent. &c. hnbefe mentd to be transferred unto and to be now standing in the jt names of the sd (O. and N. T.) was so transferred unto them and that they the sd (O. and N. T.) their exs and ads shall and will henceforth stand and be possessed of and interested in the same upon the trusts and to and for the ends &c." as above. Definition and application of APPORTIONMENT. 1. Definition and Application of Ap- 2. Apportionment of Rents. 3. Apportionment of Contracts. 4. Apportionment of Conditions and 5. Apportionment of Commons. 6. Apportionment of Annuities and Other periodical Sums. SECT. 1. Apportionment, or setting apart or dividing into set porapportionment. tions for particular purposes, is applicable to several matters in law,— as to rents, contracts, conditions, covenants, commons, annuities, dividends, mortgages and other payments, at stated periods. Some of these things are apportionable by act of law, if not by the act of the party; some, as interest in mortgages and sums payable on policies of insurance, are not apportionable at all; others, as annuities, &c., are apportionable, not at common law, but by statute, see further, infra. Apportionment of rents. 2. Apportionment of rent is in two ways: First, in respect to the parties intitled to receive or bound to pay the rent, see post, CoveNANTS, LEASES. Secondly, as to the particular portion of time for which rent is payable after the death of a party or otherwise. By the old rule of law, where a tenant for life granted a lease for years payable half-yearly, and died in the interval before any halfyearly payment became due, his executors and administrators were not intitled to the rent coming due, but it fell into the land (see ANNUITY, Pref. sect. 3). By the 11 G. 2, c. 19, sect. 15, it is provided that where any tenant for life dies before or on the day on which any rent is reserved upon any demise which determines at the death of such tenant, his executors or administrators may recover the whole, or if before the day, a proportion of such rent, according to the time the tenant lived, of the last year, half-year, quarter or other time in which the rent was growing due. Under this statute it was held that the representatives of a tenant in tail were intitled to apportionment, 2 B. C. C. 662, and cases there cited, 8 Ves. 311; but whether a tenant pur autre vie was within the statute, appears not to have been settled, Wyckham v. Wyckham, 3 Taunt. 331. But now by the 4 & 5 W. 4, c. 22, amending and extending the former act, rents reserved on leases determining on the death of the person making them, although not strictly tenant for life, or on the death of tenant pur autre vie, are to be apportionable according to the provisions of that Act. 3. As a rule, where a contract is entire, it cannot be split, 3 Vin. Apportionment. Abridg. tit. APPORTIONMENT; therefore, where a party agrees to Apportionment deliver a certain quantity of goods within a certain time, he cannot of contracts. bring an action for the amount of any part, but must wait until the whole is delivered, Waddington v. Oliver, 2 N. R. 61, unless the buyer consents to keep the part, when the value thereof may be ascertained, Shipton v. Casson, 5 B. & C. 378, recognized in Oxendale v. Wetherell, 9 B. & C. 386. So where a party engages to do a specific work for a specific sum, he must complete the work before he can recover the sum agreed on, Sinclair v. Bowles, 9 B. & C. 92; but where a shipwright enters into a general engagement to repair a ship, he may, on having done a part, refuse to proceed until he is paid for the part completed, Roberts v. Havelock, 3 B. & Ad. 404, distinguishing this from the preceding case; so formerly, where a party agreed with a builder to build a house according to a given plan, and deviations were afterwards made, such deviations formerly invalidated the whole contract, and enabled the builder to make his own charges, without regard to any contract; but now he can in such case recover only on a quantum meruit in respect of the deviations, see ante, No. XLVI.; so formerly shipowners were liable to the full extent of any loss or damage; but now by several statutes the liability is limited to the value of the ship and the amount of the freight; and where there are several sufferers, the compensation to them is proportioned to their several losses, see Dig. p. iii. tit. SHIPPING. Seamen's wages are not apportionable, see Dig. p. iii. tit. SEAMEN. 4. Conditions, being entire, are for the most part not apportionable Apportionment except where they are so by act of law, see post, LEASES; so also as to covenants for title or covenants in leases, see post, LEASES. of conditions and covenants. of commons. 5. If a man purchase part of the land, wherein common appendant Apportionment is to be had, the common shall be apportioned, because it is of common right, Hob. 235; Tyrringham's case, 4 Co. 37; sed secus as to common appurtenant or any other common whatsoever, 1 Inst. 122 a. 6. By sect. 2 of the abovementioned Act, 4 & 5 W. 4, c. 22, its Apportionment of annuities, &c. provisions are extended to all rents, annuities, and other sums coming due at fixed periods, which are to be apportioned in like manner. This was doubtless intended to apply to every case where an annual sum determines on the death of the person interested, whether grantor or grantee; but as it is not stated in express terms, it may be prudent to insert the usual stipulation in an annuity deed, see infra, No. CXX. Although before this Act, there were several periodical payments Other periodiwhich were not apportionable, yet the case of maintenance for infants was excepted, and it was held in that case that a party was intitled cal sums. Maintenance, &c. apportion able. |