PRECEDENT L.

APPOINTMENT

UNDER A WILL

OF NEW TRUSTEE

DEVISED

IN TRUST AND

PERSONAL

ESTATE.

appointment or disposition by will (except what he otherwise disposed of by that his will or any codicil thereto), unto and to the use of the said E. F. and G. H., since deceased, their heirs, executors, and administrators respectively, ac- OF REAL ESTATE cording to the tenure thereof respectively, upon the trusts and with and subject to the powers, provisoes, and declarations therein declared and contained concerning the same (a); And he the said testator thereby bequeathed all the money, securities for money, goods, chattels, credits, and personal estate of or to which he should at his death. be possessed or entitled, or over which he should at his death have a general power of appointment or disposition by will (except chattels real included in the devise thereinbefore contained of real estate, and except what else he otherwise disposed of by that his will or any codicil thereto), unto the said E. F. and G. H., their executors and administrators, upon the trusts and with and subject to the powers, provisoes, and declarations therein declared and contained concerning the same; And in the same will was contained a proviso and declaration that, &c. [Power of appointing new trustees, with the direction as to the transfer of the trust estates, and the declaration as to the powers of the new trustees, set forth at length]; AND 3. of the WHEREAS the said testator A. B. died on the

death of the

day of testator, and a

probate of his

without having revoked or altered his said will, will;

which was duly proved on the

day of

in the

district registry at of the Court of Probate; AND 4. of the

day of

death of a

, trustee, and

the new trustee ;

WHEREAS the said G. H. died on the and the said E. F. is desirous of appointing the said desire to appoint I. K. to be a trustee of the hereinbefore recited will in the place of the said G. H.; AND WHEREAS the trust estates and premises subject to the trusts of the said will now consist of the following particulars, namely, a free

(a) See the observations on framing recitals of this nature, supra, p. 606.

5. of the particulars of which the trust estate consists;

hold mansion and estate called

parish of — and county of

Hall, situate in the

several freehold mes

in the Consoli

suages or tenements situate in the town of
County of
and the several sums of £-
dated £3 per cent. Annuities, and £— New £3 per cent.
Annuities (b); AND WHEREAS it is intended that the
said respective sums of Annuities shall be forthwith
transferred into the names of the said E. F. and I. K.
NOW THIS INDENTURE WITNESSETH, that in
exercise of the power for this purpose given to the said
E. F. by the hereinbefore recited will, and of every or any
other power in anywise enabling him in this behalf, he
the said E. F. doth hereby (c) appoint the said I. K. to be
a trustee in the place of the said G. H., for the purposes
of the hereinbefore recited will of the said testator A. B.

(b) It will be observed, that in the precedent in the text no attempt is made to follow by means of recitals (see p. 607, supra), the course of administration by which the trust property has been brought to consist of the particulars mentioned. It is considered, that before accepting the office of trustee, sufficient inquiry should be made to satisfy the new trustee that primâ facie the trusts have been properly performed, and, above all, that there is nothing in the actual position of the trust, either threatening extraordinary risk or calling for unusual interference; though no doubt such inquiries are frequently waived from personal confidence. There may, perhaps, in this respect be a difference between supplying vacancies in trusts under settlements and under wills. The original trustees of settlements are always, or nearly so, persons having no interest in the trust property and their places in case of vacancy are generally supplied by indifferent persons (see Lewin, Trusts, 7th ed., p. 568); although this has been decided not to be of necessity (Forster v. Abraham, L. R. 17 Eq. 351, supra, p. 635, note). But in the case of wills, nothing is more common than for the trustees (very usually the wife and sons of the testator) to be also beneficially interested under the trusts; and when this happens, it is neither unusual nor improper to supply a vacancy in the trust by the appointment of an interested party, who naturally, from his knowledge of and connection with the trust estate, would dispense with the investigations that might be reasonably required by a stranger. (c) See supra, p. 611, note (b).

in the

AND THIS INDENTURE ALSO WITNESSETH, that
in
pursuance of the direction in this behalf contained in
the said will of the said testator A. B., the said E. F. doth
hereby grant unto the said I. K. and his heirs, ALL AND
SINGULAR the said mansion house called
parish of, in the county of, with the gardens,
grounds, offices, and appurtenances belonging thereto, and
the lands and hereditaments held therewith, AND ALSO all
and singular the freehold messuages or tenements and
premises in the town of, in the county of,
heretofore vested in the said testator A. B., and now vested
in the said E. F. as surviving devisee in trust under his
said will, AND ALL other (if any) the messuages, lands,
tenements, hereditaments, and real estate, now vested in
the said E. F. as such surviving devisee in trust as afore-
said, or by any means whatsoever held by him upon the
trusts of the said will of the said testator A. B., with their
and every of their rights, easements, and appurtenances;
AND ALL THE ESTATE and interest of the said E. F. in the
same premises; TO HAVE AND TO HOLD the said heredita-
ments and premises herein before expressed to be hereby
granted (subject to the leases and tenancies of and subsist-
ing in the same or any part or parts thereof respectively)
unto the said I. K. and his heirs, TO THE USE of the said
E. F. and I. K., their heirs and assigns, Upon the trusts
and with and subject to the powers, provisoes, and decla-
rations hereinafter declared and contained concerning the
same. AND IT IS HEREBY agreed and declared, that the
said E. F. and I. K., their heirs, executors, and adminis-
trators respectively shall stand seised and possessed of the
said hereditaments and premises hereinbefore expressed
to be hereby granted, and of the said several sums of
Annuities when the same shall have been transferred as
aforesaid respectively, upon the trusts and with and subject
to the powers, provisoes, and declarations subsisting
therein or applicable thereto respectively by virtue of the

PRECEDENT L.

APPOINTMENT
UNDER A WILL

OF NEW TRUSTEE
OF REAL ESTATE
DEVISED

IN TRUST AND
PERSONAL
ESTATE.

8. Witnesseth further, grant

of real estate

held in trust.

9. Habendum to

the use of the

continuing and
new trustees
of the will.

upon the trusts

10. Declaration

of trust of real

estate and stock.

PRECEDENT L.

APPOINTMENT UNDER A WILL OF NEW TRUSTEE OF REAL ESTATE DEVISED

IN TRUST AND

PERSONAL
ESTATE.

Appointments
of new trustees
under wills com-
monly more
complex than
under settle-
ments.

As to transferring trust and

mortgage estates

of new trustees.

said will of the said testator A. B. [Covenant by E. F. with I. K. against incumbrances as to the real estate conveyed, see p. 623, supra]. IN WITNESS, &c. (d).

(d) The precedent in the text is a simple example of an appointment of a new trustee of a will, which is commonly more complex than a like instrument under a settlement, not only on account of its being necessary to recite the will, but also in consequence of the trust estate being liable to comprise property of all the various descriptions which may have been held by the testator at his death. This observation, however, chiefly applies to appointments of trustees made soon after the testator's death, as it may be assumed that the estate will generally, after a certain time, be brought into a more simple and homogeneous condition as to investment. Sometimes, too, a will contains, besides the series of principal trusts, a number of subordinate trusts, applying to separate funds or portions of the testator's property; and if so, these will generally require distinct notice in connection with the transfer of the trust estate on appointing a new trustee.

Where the will contains the common devise to the trustees of estates vested in the testator upon trust or by way of mortgage, on appointment the question arises whether such estates should be transferred upon an appointment of new trustees of the will. The doubt as to the propriety of devising trust estates has already been adverted to (see supra, p. 58, note (d)). The trusts reposed in the testator, although assumed in practice to be legitimately devisable, cannot be looked upon as subject to a right of further transfer by the devisees. Though the trustees of a will are usually also the devisees of trust and mortgage estates, it could scarcely be argued that the trusteeship extends not only to the testator's own estates, but also to estates vested in the testator upon trust, or that, upon the appointment of a new trustee, either the scope of his office, or the common direction for transfer of the trust estate, extends to estates of the latter description. But though the trusts annexed to the devise of trust estates are distinct from and additional to the trusts annexed to the office of trustee under the will, it is nevertheless so inconvenient for a retiring trustee, or the representative of a deceased trustee, to retain the legal estate in lands vested in the testator as a trustee or mortgagee, when in other respects closing his connection with the testator's affairs, that it is not very unusual upon an appointment of new trustees for a transfer to be taken of such estates. The advantages of this practice cannot however be considered as justifying the departure from legal principle;

LI.

APPOINTMENT of a NEW TRUSTEE of a WILL and co-
DICILS under the STATUTORY power (a) in the place
of a trustee who has refused to act and DISCLAIMED.
CONVEYANCE of FREEHOLDS and COVENANT to SUR-
RENDER COPYHOLDS to the use of the continuing and

PRECEDENT LI.

APPOINTMENT OF
NEW TRUSTEE

OF A WILL
OF FREEHOLD,
COPYHOLD,

AND PERSONAL

ESTATE.

and it is clear that (at all events as to trust estates) the transferees can exercise no trust or power; but in many cases in which trust estates are devised, they are bare legal estates, the devolution of which by devise and conveyance through the succession of persons filling the character of trustees of the property of the original trustee, is unattended with the disadvantages that may affect this mode of dealing with active trusts; and by reference to this form of outstanding trust estate, the irregular practice above adverted to probably arose. This practice should not be followed; but though estates vested in the testator by way of mortgage, and passing under a general devise of estates held upon mortgage, should not in respect of that devise, and while the debt remains vested in the executors, be transferred on an appointment of new trustees, yet when the mortgages have been appropriated as part of the trust estate, it will be proper to transfer them along with the rest of the trust estate. Whether the mortgages should be transferred by separate deeds, or by the same deed as the other trust estate passing by deed may depend upon the circumstances. But as the appointment of new trustees must necessarily be a document of title to the mortgaged estates, there may perhaps generally be no sufficient reason, in the case of a mortgage held by the testator (as distinguished from one taken by the trustees without disclosing the trusts, as to which, see supra, p. 619, note (a)) to transfer the mortgage by a separate deed. Estates held by a testator as owner under different titles are also, upon an appointment of new trustees, usually transferred by one deed.

(a) As to the appointment of new trustees under the statutory power, see supra, p. 614, note. The Precedent in the text is adapted to the case where the power is entirely left to the operation of the statute. For the case where the persons to exercise the statutory power are nominated by the instrument, see supra, Precedent XL.