c. 145, s. 23. payment of his commission as aforesaid, and of the premiums on 23 & 24 Vict. 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. 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 existing or future debt. This part to reway of mortgage late to charges by only. PART III. Provisions as to Investment of Trust Funds, appointment and powers of Trustees and Executors, &c. (c). rities trust funds may be invested. 25. Trustees having trust money in their hands which it is on what secutheir 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 discretion, 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. (c) Further provisions as to investments are contained in 22 & 23 Vict. c. 35, s. 32, ante, p. 694; 23 & 24 Vict. c. 38, ss. 10, 11, ante, pp. 696, 697. 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 com S. Ꮓ Ꮓ c. 145, s. 26. 23 & 24 Vict. pound 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. Provisions for appointment of new trustees on death, &c. (d). Appointment of Trustees' receipts 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; 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 convey. ance 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. (d) The usual indemnity clauses are supplied by 22 & 23 Vict. c. 35, s. 31, ante, p. 693. 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. 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. (e) See further clause, 22 & 23 Vict. c. 35, s. 23, ante, p. 688. 30. It shall be lawful for any executors to pay any debts or 23 & 24 Vict. claims upon any evidence that they may think sufficient, and to c. 145, s. 30. accept any composition, or any security, real or personal, for Executors may any debts due to the deceased, and to allow any time for pay- compound, &c. ment 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. powers, notwith brances. 31. For the purposes of this act, a person shall be deemed to Tenants for life, be entitled to the possession or to the receipt of the rents and &c. may execute income of land or personal property, although his estate may be standing incumcharged 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. 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 (f). (f) 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 a 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 con Powers, &c. hereby given may be negatived by express declaration. No persons other than those ensettlement, &c. to titled under the be affected. 23 & 24 Vict. c. 145, s. 33. Commencement of act. Extent of act. tained express powers for such trustees or other persons so to deal with or affect such estates or rights. 34. The provisions contained in this act shall, except as hereinbefore 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. APPENDIX. No. 1. RELEASE AND CONVEYANCE of the Freehold Part, and Covenant to surrender the Copyhold part, of an Estate, by a Tenant in Tail in Possession, to a Purchaser with Limitations, or a Declaration to bar Dower; the Vendor's Wife joining to extinguish her Right of Dower. (See 3 & 4 Will. 4, c. 47, ss. 15, 40, 53; ante, pp. 339, 363, 372; and 3 & 4 Will. 4, c. 105, ss. 6, 14; ante, pp. 441, 445.) day of entail. THIS INDENTURE, made the in the year of our Parties. Lord, between B. Adams, of, &c., Esq., (eldest son and heir of the body of A. Adams, late of, &c., Esq., deceased, by Anne, his late wife, before A. Bell, spinster, also deceased), and Mary, his wife, of the first part; [the purchaser] of the second part, and J. K., of, &c., gent., a trustee nominated by and on behalf of the said [purchaser] of the third part. [If the purchaser should not have been married until after the 1st of January, 1834, and the declaration should be adopted (see post), there will be no necessity for a trustee.] (a) WHEREAS by indentures of lease and release, bearing date Recital of settlerespectively the eighth and ninth days of March, 1800, the release ment creating the being made, or expressed to be made between the said A. Adams, of the first part; the said Anne Adams, then A. Bell, spinster, of the second part; A. B. and C. D., of the third part; and E. F. and G. H., of the fourth part (being the settlement made previously to and in consideration of the marriage then intended to be, and shortly afterwards duly solemnized between the said A. Adams and A. Bell), the freehold parts of the capital messuage or tenement, farm, lands and hereditaments hereinafter described and intended to be hereby granted and released, were (amongst other bereditaments) duly conveyed and assured from and after the solemnization of the said intended marriage, to the use of the said A. Adams and his assigns, for and during the term of his natural life, and from and after the determination of that estate by forfeiture or otherwise in his lifetime, to the use of the said A. B. and C. D. and their heirs, during the natural life of the said A. Adams, upon trust to support the contingent uses and estates thereinafter limited, and from and after the decease of the said A. Adams, To the use, intent and purpose, that the said A. Bell, in case she survived (a) A husband married on or before the 1st of January, 1834, will not be able to defeat his wife's right of dower, by the new methods, prescribed by the act for amending the law of dower. It will therefore be advisable for a purchaser who married before that time to have the estate conveyed to such uses as will enable him to defeat his wife's dower, without her future concurrence. Both Sir Edward Sugden (V. & P. 545, 11th ed.) and Mr. Hayes (1 Conv. 304, 5th ed.) agree in the propriety of adopting the old form of uses to prevent dower in the case of a husband married on or before the 1st of January, 1834. |