trustee was dead intestate without personal representative (Re Dickson, 13 & 14 Vict. c. 60, s. 25. 26. Where any order shall have been made under any of the Effect of an provisions of this act vesting the right to any stock in any the legal right order vesting person or persons appointed by the Lord Chancellor, intrusted to transfer as aforesaid, or the Court of Chancery, such legal right shall stock. vest accordingly, and thereupon the person or persons so appointed are hereby authorized and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order; and the Bank of England, and all companies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terms of such order as the said Bank of England, or such companies, associations or persons, would have been bound and compellable to comply with the requisitions of the person in whose place such appointment shall have been made, and shall be equally indemnified in complying with the requisition of such person or persons so appointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made; and after notice in writing of any such order of the Lord Chancellor, intrusted as aforesaid, or of the Court of Chancery, concerning any stock, shall have been given, it shall not be lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose place an appointment shall have been made in any matter whatever relating to the transfer of such stock, or the payment of the dividends or produce thereof (g). (2) This section has, so far as relates to the jurisdiction in lunacy, been repealed, as to England, by 53 Vict. c. 5, s. 342. See sect. 35, post, p. 523. Having regard to the words in this section "into their own names, or otherwise," an order was made vesting in new trustees the right to call for a transfer to themselves or any purchaser from them (Re Peacock, 14 Ch. Div. 212). See as to form of order under this section, Re Smyth, 2 De G. & Sm. 781; 4 De G. & Sm. 499; Trustee Act, 1852, s. 6, post, p. 535. 27. Where any order shall have been made under the pro- Effect of an visions of this act, either by the Lord Chancellor, intrusted as order vesting aforesaid, or by the Court of Chancery, vesting the legal right a chose in legal right in to sue for or recover any chose in action or any interest in action. S. LL 18 & 14 Vict. c. 60, s. 27. Effect of an order vesting copyhold lands, or appointing any person to convey copy hold lands. Order vesting copyholds without consent of lord. With consent of lord. Order ap respect thereof in any person or persons, such legal right shall vest accordingly, and thereupon it shall be lawful for the person. or persons so appointed to carry on, commence and prosecute, in his or their own name or names, any action, suit or other proceeding at law or in equity for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action (r). (r) This section, so far as relates to the jurisdiction in lunacy, has been repealed, as to England, by 53 Vict. c. 5, s. 342. 28. Whensoever, under any of the provisions of this act, an order shall be made, either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, vesting any copyhold or customary lands in any person or persons, and such order shall be made with the consent of the lord or lady of the manor whereof such lands are holden, then the lands shall, without any surrender or admittance in respect thereof, vest accordingly (s) and whenever under any of the provisions of this act, an order shall be made either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, appointing any person or persons to convey or assign any copyhold or customary lands, it shall be lawful for such person or persons to do all acts and execute all instruments for the purpose of completing the assurance of such lands; and all such acts and instruments so done and executed shall have the same effect, and every lord and lady of the manor, and every other person, shall, subject to the customs of the manor and the usual payments, be equally bound and compellable to make admittance to such lands, and to do all other acts, for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments (†). (s) This section, so far as relates to the jurisdiction in lunacy, has been repealed, as to England, by 53 Vict. c. 5, s. 342. An order vesting copyhold lands can be made without the consent of the lord, and will not prejudice his right to fines (Paterson v. Paterson, 2 Eq. 31; Re Flitcroft, 1 Jur. N. S. 418; Re Hurst, Seton, 540, 4th ed.; see, however, Cooper v. Jones, 25 L. J. Ch. 240, and Re Howard, 3 W. R. 605). Where such an order is made without the lord's consent, the person in whom the property is vested applies for admission as an ordinary surrenderee would have done (Lewin, 1163, 9th ed.; see Bristow v. Booth, L. R. 5 C. P. 92). Where a vesting order is made with the lord's consent, surrender and admission are unnecessary. For the purpose of consenting, it is not necessary for the lord to appear in court; a verified certificate of his consent is sufficient (Ayles v. Cox, 17 Beav. 584; see Cooper v. Jones, 25 L. J. Ch. 240). For form of consent and verifying affidavit, see Dan. Ch. Forms, 897, 4th ed. For form of order vesting copyholds, see Seton, 507, 4th ed.; Re Crowe's Mortgage, 13 Eq. 26. Orders have been made vesting copyholds in Re Godfrey (23 Ch. D. 205), and Re Franklyn (1888, W. N. 217). (t) Where a person is appointed to convey copyholds, the person so appointing per- pointed must surrender, and the surrenderee must be admitted (Lewin, 1163, 9th ed.) The Court of Queen's Bench will give effect to such an convey, 13 & 14 Vict. c. 60, s. 28. son to convey copy holds. for sale of real 29. When a decree shall have been made by any court of When a deequity directing the sale of any lands for the payment of the cree is made debts of a deceased person, every person seised or possessed of estate for paysuch lands, or entitled to a contingent right therein, as heir or ment of debts. under the will of such deceased debtor, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this act; and the Court of Chancery is hereby empowered to make an order wholly discharging the contingent right, under the will of such deceased debtor, of any unborn person (u). (u) Where part of a testator's real estate had been contracted to be sold by order of court, to provide for costs, the 29th and 30th sections did not apply (Weston v. Filer, 5 De G. & Sm. 608); but this difficulty has been removed by Trustee Act, 1852, s. 1, post, p. 532 (See Wake v. Wake, 17 Jur. 545). Where copyholds devised to an infant for life, remainder to his first and other sons in tail, were decreed to be sold to pay the testator's debts, the purchaser was entitled to require an order discharging the contingent rights of the unborn issue of the infant (Wood v. Beetlestone, 1 K. & J. 213). For forms of orders under this section, see Seton, 527, 533, 4th ed. Applícations under this section must be made in chambers (R. S. C. Ord. 55, r. 2 (8)). The order should, it seems, be entitled in the matter of the act (Gough v. Bage, 25 L. T. 738; see table of Titles in Annual Practice). Provisions for facilitating the conveyance of the lands of a deceased debtor, where a decree for sale has been made, are also contained in 11 Geo. 4 & 1 Will. 4, c. 47, ss. 11, 12, ante, pp. 373, 374. parties are the interests 30. Where any decree shall be made by any court of equity Court to for the specific performance (x) of a contract concerning any declare what lands, or for the partition (y) or exchange of any lands, or trustees of generally when any decree shall be made for the conveyance or lands comassignment of any lands (3), either in cases arising out of the prised in any doctrine of election or otherwise, it shall be lawful for the said suit, and as to court to declare, that any of the parties to the said suit wherein of persons such decree is made are trustees of such lands or any part unborn. thereof, within the meaning of this act, or to declare concerning the interests of unborn persons (a) who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased, who was during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of this act, and thereupon it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights and interests of such persons, born or unborn, as the said court or the said Lord Chancellor 13 & 14 Vict. might under the provisions of this act make concerning the estates, rights and interests of trustees born or unborn (6). c. 60, s. 30. Specific performance. Partition. Foreclosure. (x) Under this section, the decree is made a condition precedent (Re Colling, 32 Ch. D. 336), A donee of a power of jointuring was ordered, in a suit by his wife for specific performance, to execute the power by a deed. On his refusal, he was declared a trustee, and the court appointed a person to execute the requisite deeds in his place (Wellesley v. Wellesley, 4 D. M. & G. 537). Where there had been a decree for specific performance of an agreement to grant a lease, and the defendant had refused to execute the lease, a person was appointed (under sect. 20) to execute in his place (Hall v. Hale, 51 L. T. 226; see, however, Grace v. Baynton, 1877, W. N. 79). So where infants were entitled to land subject to an agreement for a lease (Hodgson v. Bower; Howell v. Palmer, Seton, 529, 4th ed.) (y) In a partition suit, instead of giving an infant a day to show cause, the court may declare him to be a trustee of the shares allotted to other parties (Bowra v. Wright, 4 De G. & Sm. 265). Where in a suit for partition of lands, in which a lunatic was entitled to an undivided share, the lunatic had been declared a trustee within this act, the court of lunacy on a petition made a vesting order (Re Molyneux, 10 W. R. 512), notwithstanding the doubt expressed in Re Bloomar (2 De G. & J. 88). And where a decree had been made for partition of lands, an undivided share in which was vested in a lunatic as tenant in tail, an order was made in lunacy and Chancery directing the committee to execute all necessary assurances for giving effect to the partition (Re Sherard, 1 D. J. & S. 421). Where the shares of the parties to a partition suit were minute and complicated, the court declared each of the parties trustees as to the shares allotted to the other of them, and vested the whole in a single trustee with directions to convey (Shepherd v. Churchill, 25 Beav. 21; see form of order, Ib. p. 23; and Orger v. Sparke, 9 W. R. 180). This section has been extended to cases where in partition actions the court directs sale instead of division (31 & 32 Vict. c. 40, s. 7, post). The Trustee Act, 1852, s. 1, also applies to such actions (Beckett v. Sutton, 19 Ch. D. 646). So, a party to such an action who has been found a lunatic was held a trustee, and a person was appointed in lunacy to convey for him (Re Watson, 58 L. T. 509). Where, upon an order for sale, the parties to the action and their unborn issue were declared trustees, a new trustee was appointed in their place, but not till after the order had been drawn up (Lees v. Coulton, 20 Eq. 20). (z) This includes a decree ordering a mortgage (Seton, 527-538, 4th ed.) This section applies to all cases where there is a judgment against an infant for an immediate conveyance (Mellor v. Porter, 25 Ch. D. 161). Whether this includes a judgment against an infant for foreclosure of an equitable mortgage, see S. C. For an order in a foreclosure suit declaring the mortgagor a trustee for the mortgagee, see Lechmere v. Clamp and Smith v. Boucher, quoted ante, p. 505. Where a foreclosure suit was instituted against a mortgagor of unsound mind, an order was made vesting the property in the plaintiff as trustee for the purchaser (Harrison v. Smith, 17 W. R. 646). (a) The words "unborn persons" include living persons who may subsequently have a right to claim under a party, e. g., as his heir (Bassett v. Moxon, 20 Eq. 182). (b) In the case of sales of realty, where there is only an unexecuted contract for sale, a suit is necessary to declare the vendor a trustee; but in the case of an executed contract a suit is not necessary (Re Cuming, 5 Ch. 72, ante, p. 509; see note, ante, p. 499). As to the case where a person, declared to be a trustee in a suit, refuses to convey land, see Knight v. Knight and Derham v. Kierman, quoted in the note to Trustee Act, 1852, s. 2, post, p. 533. The court has declared persons to be constructive trustees of stock without suit (Re Angelo, 5 De G. & Sm. 278, ante, p. 511; Re Davis, 12 Eq. 214). Applications under this section must be in chambers (R. S. C. Ord. 55, r. 2(8)). For forms of orders under this section, see Seton, 528-536, 4th ed.; Lees v. Coulton (20 Eq. 21). 13 & 14 Vict. c. 60, s. 30, See in connection with this section the power given by the Jud. Act, Jud. Act, 1884, s. 14, to appoint a person to execute documents on behalf of a re- 1884, s. 14. cusant, and Howarth v. Howarth, 11 P. Div. 68, 95. tions how the 31. It shall be lawful for the Lord Chancellor, intrusted as Power to aforesaid, or the Court of Chancery, to make declarations and make direcgive directions concerning the manner in which the right to any right to stock or chose in action vested under the provisions of this act transfer stock shall be exercised; and thereupon the person or persons in to be exerwhom such right shall be vested shall be compellable to obey such directions and declarations by the same process as that by which other orders under this act are enforced (c). (c) This section, so far as relates to the jurisdiction in lunacy, has been repealed as to England by 53 Vict. c. 5, s. 342. Under this section the court may order the person in whom the right to transfer stock is vested, to transfer it into court (Re Pitt, 1 Jur. N. S. 1155; Re Dawson, 3 N. R. 397), e. g., under the Trustee Relief Act (Re Draper, 9 W. R. 805; Re Thornton, 9 W. R. 475; see Re Mais, 21 L. J. Ch. 875). For forms of orders under this section, see Seton, 508, 510, 511, 4th ed. cised. ing new 32. Whenever it shall be expedient to appoint a new trustee Power to or new trustees, and it shall be found inexpedient, difficult or court to make impracticable so to do without the assistance of the Court of order appointChancery, it shall be lawful for the said Court of Chancery to trustees. make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees (d). (d) The court will not, upon an application under this section, enter into Circumthe question of the validity of the instrument creating the trust (Re Mat- stances thews, 26 Beav. 463). Except under special circumstances, as where a causing apvesting order is required, the court will not appoint a new trustee where plication to there is a valid power in the instrument of trust (Re Davies, 3 Mac. & G. the court. 278; see Re Cooper, 4 W. R. 729); even where the donee of the power in- (1.) Contends to exercise it corruptly (Re Hodgson, 9 Hare, 118). Nor as a rule nected with will the court appoint where an appointment could be made under a statu- the power. tory power (Re Soulby, 21 W. R. 256; Re Gibbons, 45 L. T. 756; see Re Jackson, 16 W. R. 572; Re Shafto, 29 Ch. D. 247; Re Higginbottom, 1892, W. N. 121). Nor, there being an existing power, does a judgment for the execution of the trusts give jurisdiction to the court to appoint; but in that case the person appointed by the donee of the power requires to be approved by the court; and repeated appointments of improper persons might be held to amount to a refusal to exercise the power (Re Gadd, Eastwood v. Clark, 23 Ch. Div. 134; Re Hall, Hall v. Hall, 51 L. T. 901). Proper persons appointed by the donee were approved by the court, although all the beneficiaries objected (Cecil v. Langdon, 28 Ch. Div. 1). Where the donee of the power is a lunatic, it would seem that the Court of Lunacy cannot appoint (See Re Garrod, 31 Ch. Div. 164); but the power may be exercised by the committee under an order in lunacy (53 Vict. c. 5, s. 128, 129; see Re Bowmer, 3 De G. & J. 658; Re Garrod, sup.); or the trustees may appoint under sect. 31 of the Conv. Act, 1881 (Re Blake, 1887, W. N. 173). The Court of Chancery has also jurisdiction to make an appointment (Re Heaphy, 18 W. R. 1070; Re Sparrow, 5 Ch. 662). The Master of the Rolls refused in such a case to appoint a new trustee, until a committee had been appointed and served with the petition (Re |