13 & 14 Vict. c. 60, s. 32.

(2.) Connected with the trustee. Lunacy.

Infancy.

Incapacity.

Residence abroad.

Bankruptcy.

Felony.

Parker's Trusts, 32 Beav. 580). The court has appointed new trustees in the following cases. Where the donees of the power were unwilling to appoint (Re Knight, 26 Ch. D. 82), or could not agree (Re Tempest, 1 Ch. 485), or were in India (Re Humphry, 1 Jur. N. S. 921); where under a settlement by a husband for the sole benefit of the wife, the husband and wife had a joint power but were judicially separated and the husband had long resided abroad (Re Somerset, 1887, W. N. 122); where the power was vested in the surviving trustee, "his heirs or assigns," and the heir of the last surviving trustee could not be found (Re Freeman, 37 Ch. D. 148); where it was doubtful whether the power applied to the case which had occurred (Re Woodgate, 5 W. R. 448; Re Armstrong's Settlement, 5 W. R. 448; Cooper v. Macdonald, 14 W. R. 755). See the further provisions as to powers of appointing new trustees in Conv. Act, 1881, s. 31 (post, p. 600).

Before 53 Vict. c. 5, orders were made in Chancery alone appointing a new trustee in the place of a lunatic (Re Martin, 34 Ch. Div. 618; Re Davies, 3 Mac. & G. 278; contra, Re Ormerod, 3 De G. & J. 249); and appointing new trustees in the place of a person of unsound mind and a deceased trustee (Re Vickers, 3 Ch. D. 112; contra, Re Good Intent Society, 2 W. R. 671). In some cases where a vesting order was also asked, the order was made in Chancery and lunacy (Re Stewart, 8 W. R. 297; Re Davidson, 20 L. J. Ch. 644; Re Druce, 46 L. T. 669; Re Smyth, 55 L. T. 37). As to the power of appointing new trustees possessed by the Court of Lunacy, see 53 Vict. c. 5, s. 141, post, p. 540, as to England, and Trustee Act, 1852, s. 10, post, p. 536, as to Ireland; Re Owen (4 Ch. 782); Re Green (10 Ch. 272); Re Hodgson, Kenlis v. Hodgson (11 Ch. Div. 889); Re Rolls Hoare (1888, W. N. 94); Re Chauncey (14 W. R. 849).

The court will appoint a new trustee in the place of an infant trustee nominated by a testator (Re Gartside, 1 W. R. 196; Re Porter, 25 L. J. Ch. 482). Without prejudice, however, to any application by the infant to be restored to the trusteeship when he comes of age (Re Shelmerdine, 33 L. J. Ch. 474; Re Brunt, 1883, W. N. 220; Re Tallatire, 1885, W. N. 191).

The court will appoint a new trustee in the place of one who is incapable from old age and infirmities (Re Lemann, 22 Ch. D. 633; Re Phelps, 31 Ch. Div. 351; see Re Barber, 39 Ch. Div. 187; Re Campbell, 1888, W. N. 176), or ill-health (Re Chauncey, 14 W. R. 849; see Re Dawson, 3 N. R. 397). The court has power under this section to appoint a new trustee in place of a trustee who is permanently residing abroad, without his consent (Re Bignold, 7 Ch. 223; Re Martin Pye, 42 L. T. 247). Where a trustee was resident in Jamaica, but there was no evidence that he did not intend to return to this country, Kindersley, V.-C., refused to appoint a new trustee (Re Mais, 16 Jur. 608; 21 L. J. Ch. 875). A bookseller domiciled in New York for several years was held "incapable of acting" within the words of a power (Mennard v. Welford, 1 Sm. & Giff. 426; but see Re Bignold, sup.) See, further, Re Moravian Society, 26 Beav. 101; Re Arbib and Class, 1891, 1 Ch. 601; Re Watts, 9 Hare, 106; Re Harrison, 22 L. J. Ch. 69; Re Stewart, 8 W. R. 297.

A new trustee will be appointed where a trustee absconds (Hyde v. Benbow, 1884, W. N. 117), or is an absconding bankrupt (Re Renshaw, 4 Ch. 783; Re Druce, 46 L. T. 669; Re Lamb, 28 Ch. D. 77; Davies v. Hodgson, 32 Ch. D. 225; Re Gardiner, 33 Ch. D. 590; Re Mace, 1887, W. N. 232). Where a trustee becomes bankrupt, it is now enacted that this section shall have effect so as to authorize the appointment of a new trustee in substitution for the bankrupt (whether voluntarily resigning or not), if it appears expedient to do so (46 & 47 Vict. c. 52. s. 147). The jurisdiction is in the Chancery Division (Coombes v. Brookes, 12 Eq. 61). When the bankruptcy is recent, and it is not shown that the man is of good character and has the command of means, he ought to be removed (Re Adams' Trust, 12 Ch. D. 637; see Re Bridgman, 1 Dr. & Sm. 170); except, possibly, where he has no money to receive (Re Barker's Trusts, 1 Ch. D. 43). A new trustee was appointed in place of a bankrupt (Re Tweedy, 28 Ch. D. 529). See also above cases as to absconding. Trust property does not pass to the bankruptcy trustee (46 & 47 Vict. c. 52, s. 44, sub-s. 1). Where a trustee is convicted of felony, the court can appoint a new

trustee under Trustee Act, 1852, s. 8, post, p. 536. As to the escheat of trust property, see note to sect. 46, post, p. 527.

13 & 14 Vict.

c. 60, s. 32.

Surviving trustee dead

Where a surviving trustee was dead intestate and no administration had been taken out, a new trustee was appointed under this section and Trustee Act, 1852, s. 9 (Davis v. Chanter, 6 W. R. 416). See before the last-men- intestate and tioned act, Re Hazeldine (16 Jur. 853). As to vesting orders in such a case, no adminissee the note to sect. 34, post, p. 522. A person absolutely entitled to trator. stock was in such a case appointed trustee for his own benefit, and the stock was ordered to be transferred to him (Re Dickson, 1872, W. N. 223, ante, p. 510).

Where there are no existing trustees the court can appoint under No existing Trustee Act, 1852, s. 9, post, p. 536. And where trustees appointed by trustees. will have died in the testator's life, an appointment has been made (Re Smirthwaite, 11 Eq. 251; Re Orde, 24 Ch. Div. 271; Re Williams, 36 Ch. D. 231). Where the appointment of the acting trustees was void, and the donee of the power of appointment could not be found, the court appointed (Re Freeman, 37 Ch. D. 148).

Where no trustees were originally appointed by a testator, the court will No trustees appoint, if expedient (Re Gillett, 1876, W. N. 251; 25 W. R. 23; see originally Dodkin v. Brunt, 6 Eq. 580; Re Moore, McAlpine v. Moore, 21 Ch. D. 778). appointed. So where persons were declared constructive trustees of stock, trustees were appointed in their place, although no trustees had been originally named by the testatrix (Re Davis, 12 Eq. 214). Where stock was standing in the name of a corporate body which had ceased to exist, the court appointed trustees, and directed them to transfer the fund (Hanover v. Bank of England, 8 Eq. 350).

Where a trustee who had executed the deed creating the trust declined Trustees to act, the court refused, under this section, to appoint a new trustee in his refusing place without his consent (Re Garty, 10 L. T. 331); but new trustees have to act. been appointed in the place of disclaiming trustees (Re Sheppard, 4 D. F. & J. 423; Re Martinez, 22 L. T. 403; Re Pratt, 55 L. T. 313); and it is sufficient that a disclaiming trustee should disclaim at the bar (Foster v. Dawber, 1 Dr. & Sw. 172; Re Tyler, 5 De G. & Sm. 56).

The court will not under this act remove a trustee who desires to Trustee will continue in the trust (Re Hodgson, 9 Hare, 121), even if he is a solicitor not be who misconducts himself (Re Blanchard, 3 D. F. & J. 131), nor on the removed ground of lunacy where the lunacy is disputed (Re Combs, 51 L. T. 45). against his To remove a trustee resident within the jurisdiction from the trust will under against his wish, an action must be brought (Re Blanchard, 3 D. F. & J. this act. 131; Re Bignold, 7 Ch. 223); and the mere fact of there being a dissension between one of the several cestuis que trusts and the trustee is not a sufficient ground for removal (Forster v. Davies, 10 W. R. 180). See further, Lewin, 1166 et seq., 9th ed. But where new trustees can be appointed on petition, an action should not be brought (Thomas v. Walker, 18 Beav. 521; Legg v. Mackrell, 2 D. F. & J. 551).

It is now settled, after some difference of opinion (Re Driver, 19 Eq. Existing 352; Re Dalgleish, 4 Ch. Div. 143; Re Pearson, 5 Ch. Div. 982), that the trustees will court will not re-appoint existing trustees with a view to a vesting order not be rebeing made under sect. 34 (Re Vicat, 33 Ch. Div. 103; Re Dewhirst, id. appointed. 416).

Trustees may be appointed although there is a receiver of the trust Receiver. property (Reeves v. Neville, 10 W. R. 335).

In selecting a new trustee, the court will have regard to the wishes of Principles on the author of the trust expressed in or clearly collected from the instru- which new ment creating the trust. A person will not be appointed with a view to trustees are the interest of some of the cestuis que trusts in opposition to the interests of selected. others. The court will have regard to the question whether the appointment will promote or impede the execution of the trust; but the mere fact of the continuing trustee refusing to act with the proposed trustee is not sufficient to prevent the appointment (Re Tempest, 1 Ch. 485).

The court will not in general appoint a cestui que trust to be a trustee Who will be (Foster v. Abraham, 17 Eq. 356; Re Roskell, Seton, 824, 4th ed.; Re Conybeare, appointed.

13 & 14 Vict. c. 60, s. 32.

A corporation.

Number of trustees appointed.

1 W. R. 458; Ex p. Clutton, 17 Jur. 988); but where the cestui que trust is absolutely entitled, and it is desired to vest the trust funds in him, he may be appointed (Re Currie, 10 Ch. 93; Re Dickson, 1872, W. N. 223; Re Price, 1883, W. N. 202). A cestui que trust will be appointed under special circumstances, e. g., where there are indications in the will (Tempest v. Camoys, 58 L. T. 221); or where a stranger cannot be found (Re Clissold, 10 L. T. 642); but in such cases an undertaking has been required that if the person appointed becomes the sole trustee, he will immediately take steps to appoint a co-trustee (Re Burgess, 1877, W. N. 87; Re Lightbody, 52 L. T. 40). The husband of a cestui que trust was appointed on a similar undertaking (Re Parrott, 1881, W. N. 158; Re Hattatt, 18 W. R. 416; see Wilding v. Bolder, 21 Beav. 224). An unmarried lady may be appointed under special circumstances (Re Campbell, 31 Beav. 176; Berkley v. Berkley, 9 Ch. 720; but see Brook v. Brook, 1 Beav. 531). As to married women, see now M. W. P. Act, ss. 18, 24, ante, pp. 336, 338. Persons resident out of the jurisdiction will only be appointed under special circumstances (Re Freeman, 37 Ch. D. 151; Re Guibert, 16 Jur. 852; Re Curtis, I. R. 5 Eq. 429). In the case of personalty, where all the cestuis que trusts were permanently resident abroad, such persons were appointed (Re Liddiard, 14 Ch. D. 310; Re Austen, 38 L. T. 601; Re Drewe, 1876, W. N. 168); and where one cestui que trust resided in Canada, a Canadian was appointed trustee of her share jointly with the other trustee (Re Cunard, 48 L. J. Ch. 172). In the case of realty, where all the cestuis que trusts were resident abroad, two Canadian and one English trustee were appointed, upon an undertaking by the Canadian trustees that they would not appoint any new foreign trustee without the consent of the court (Re Freeman, 37 Ch. D. 148). Where English and Irish lands were settled on the same trusts, and the English court had appointed English trustees of the English land, the Irish court appointed the same persons to be trustees of the Irish land (Re Maberly, 19 L. R. Ir. 341). When the cestuis que trusts are resident abroad, the court will appoint an alien to be trustee where no English person can be found (Re Hill, 1874, W. N. 228; see further note to sect. 34, post, p. 522). The agent of the property has been appointed and allowed to receive a commission (Re Freeman, 37 Ch. D. 148). The solicitor acting for the petitioner will not be appointed (Re Orde, 24 Ch. Div. 271); but this has been done where there was a difficulty in finding any one else (Re Brentnall, 1872, W. N. 77).

As regards the appointment of a corporation, the word "person" in this section includes, according to the interpretation in sect. 2, a "body corporate" (See Pharmaceutical Society v. London Association, 5 App. Cas. 857, and compare Conv. Act, 1881, ss. 2 (xvii.), 31, post, pp. 573, 600). In Re Brogden, Billing v. Brogden (1888, W. N. 238), however, North, J., thought he had no power to appoint a corporation. The bank cannot be compelled to register consols in the name of a corporation and an individual (Law Guarantee Society v. Bank of England, 24 Q. B. D. 406).

Two trustees of real estate were appointed by the court in the place of one on a petition under this act (Ex p. Tunstall, 4 De G. & S. 421); Vice-Chancellor Kindersley observing, That trust property ought, if possible, to be prevented from coming into the hands of a sole trustee" (See Re Welsh, 3 My. & Cr. 292; Birch v. Cropper, 2 De G. & S. 255; Plenty v. West, 16 Beav. 356); and new trustees have been added to the original trustees (Re Boycott, 5 W. R. 15; Grant v. Grant, 34 L. J. Ch. 641; Re Brackenbury, 10 Eq. 45; Re Gregson, 34 Ch. D. 209). The court will not in general diminish the number of the trustees, but, under special circumstances, two will be appointed in place of three (Re Marriott, 18 L. T. 749; Bulkeley v. Earl of Eglinton, 1 Jur. N. S. 994; Re Fowler, 1886, W. N. 183). In the case of the lunacy of one of several trustees, the court has, under 53 Vict. c. 5, ss. 135, 136 (post, p. 538) vested his estate in the others, although the number was thereby diminished (Re Leon, 1892, 1 Ch. 348). Prior to the last-mentioned act, it was

decided by the Court of Appeal that where there was a continuing trust, and one of the trustees became lunatic, the court would not reduce the number by appointing the sane trustees to be trustees in the place of themselves and the lunatic, and vesting the property in them alone; and that a new trustee must be appointed (Re Nash, 16 Ch. Div. 503; Re Aston, 23 Ch. Div. 217; Re Colyer, 43 L. T. 454; Re Ray, 47 L. T. 500). So also when one of the trustees was an absconding bankrupt (Re Lamb, 28 Ch. D. 77; Re Gardiner, 33 Ch. D. 591). Before the decision in Re Nash, sup., appointments of this nature had been made (Re Stokes, 13 Eq. 333; Re Harford, 13 Ch. D. 135; Re Gibbin, 1880, W. N. 99; Taylor v. Northrop, 29 W. R. 134; Re Shipperdson, 49 L. J. Ch. 619). Appointments and vesting orders of this nature have been made where the fund was immediately divisible (Re Martyn, 26 Ch. Div. 745; Re Watson, 19 Ch. Div. 384); and where the persons appointed undertook to bring the fund into court (Davies v. Hodgson, 32 Ch. D. 225); and where special circumstances showed it was impossible to obtain a new trustee (Re Mace, 1887, W. N. 232). The court will not appoint a sole trustee (Re Ellison, 2 Jur. N. S. 62; Re Porter, ib. 349; Re Dickinson, 1 Jur. N. S. 724; see D'Adhemar v. Bertrand, 35 Beav. 20; West of England Bank v. Murch, 23 Ch. D. 146), except under special circumstances (Re Reynault, 16 Jur. 233).

18 & 14 Vict.

c. 60, s. 32.

Where by the same instrument different parts of the property are vested Severance of in the same trustees on different trusts, the court can (independently of trusts. the Conv. Act, 1882, s. 5) appoint separate new trustees of the different parts (Re Paine, 28 Ch. D. 725; Re Hetherington, 34 Ch. D. 211; Re Grange, Cooper v. Todd, 44 L. T. 469), or of one part only, without requiring new trustees to be appointed of the remaining part (Re Moss, 37 Ch. D. 513, where the existing trustees retired from part of the trusts; Re Dennis, 12 W. R. 575; Re Cotterill, 1889, W. N. 183; see Re Cunard, 48 L. J. Ch. 172). See Conv. Act, 1892, s. 6 (post, p. 634). An order was refused in Re Nesbitt (19 L. R. Ir. 509).

The court has appointed new trustees of a trust deed for benefit of Creditor's creditors (Re Raphael, 9 Eq. 233; Re Price, 6 Eq. 460; Re Bache, 1868, deed. W. N. 223; Re Donisthorpe, 10 Ch. 55). As to appointing a trustee to perform executor's duties, see Re Moore, McAlpine v. Moore (21 Ch. D. 778); Re Willey (1890, W. N. 1).

tees.

The evidence should show that the person proposed to be appointed is a Evidence on fit person. One affidavit is sufficient; the costs of a second will not be petition for allowed (Re Arden, 1887, W. N. 166). The deponent's position in life appointment must be stated, "gentleman" is not sufficient (Re Horwood, 55 L. T. 373; of new trusRe Orde, 24 Ch. Div. 271). He should not be the solicitor (Grundy v. Buckridge, 17 Jur. 731; 22 L. J. Ch. 1007; Re Hartley, 1879, W. N. 169). Something should be shown as to the pecuniary means of the proposed trustee (Re Castle Sterry, 1888, W. N. 179) "Of independent means "is sufficient, but not "gentleman" alone (Re Horwood, 55 L. T. 373). In general the proposed trustee should not appear by counsel to consent (Re Draper, 2 W. R. 440; Re Parker, 21 L. T. 218). His consent to act, however, should, in proceedings in Chancery and in Chancery and lunacy, be evidenced by a written consent signed by him, and verified by the signature of his solicitor (R. S. C. Ord. 38, r. 19a; Re Hume, 35 Ch. Div. 457). As to a consent in the case of proceedings in lunacy, see Rules in Lunacy, 1892, r. 92, and form of consent, post, pp. 542, 543.

In the case of a vesting order, the beneficial title to the property may As to the be proved by the affidavit of a person acquainted with the facts (Re title to the Hoskins, 4 De G. & J. 436); but the legal title must be strictly proved property. (Seton, 4th ed. 548).

On a petition to appoint new trustees in the place of two who were Service. desirous of retiring, both the old trustees and all the cestuis que trusts were required to appear (Re Sloper, 18 Beav. 596); but service on the old trustee has not been required, where he was of unsound mind (Re Green, 10 Ch. 272; Re Stewart, 8 W. R. 297; see Re East, 8 Ch. 735), or permanently resident abroad (Re Bignold, 7 Ch. 223; Re Martin Pye, 42 L. T.

13 & 14 Vict. c. 60, s. 32.

Forms of petition and orders.

The new trustees to have the powers of trustees appointed by decree in suit.

Power to

court to vest lands in new

trustees.

Orders

vesting real estate.

247; Re Stewart, sup.), or had absconded (Re Nicholson's Trusts, 1884, W. N. 76; Hyde v. Benbow, id. 117). Where the last trustee was dead, intestate, and a vesting order was asked, service on the heir was required (Re Oxenham, 1875, W. N. 6; Re Smirthwaite, 11 Eq. 251; see now Conv. Act, 1881, s. 30, post, p. 600; and Re Pilling, 26 Ch. D. 432). Service on the heir was not required in Purvis v. Abraham (1866, W. Ñ. 126). The general rule is that all the cestuis que trusts must be served or join in the application (Re Richards, 5 De G. & Sm. 636; Re Fellows, 2 Jur. N. S. 62). A married woman can petition (Re Outwin, 48 L. T. 410). An infant petitions by his next friend (Re Fellows, sup. ; Jones v. Lewis, 1 De G. & Sm. 251), and appears as respondent by a guardian ad litem (R. S. C. Ord. 16, r. 19). But where parties were numerous service was dispensed with on some who were represented by trustees (Re Smyth, 2 De G. & Sm. 781; see Re Blanchard, 3 D. F. & J. 137), and on one who was abroad (Re Wilson, 31 Ch. Div. 522; Re Lightbody, 52 L. T. 40; see Re Parrott, 1881, W. N. 158). Where an order had been made on petition, and two persons had been made petitioners without their consent, their names were struck out, and they were treated as not served (Re Savage, 15 Ch. D. 557). Where a new trustee was appointed of a term of years, service on the reversioner was required (Re Farrant, 20 L. J. Ch. 532).

A form of petition for the appointment of new trustees, and for an order vesting lands, the right to call for a transfer of stock, and the right to sue for choses in action is given in Dan. Ch. Forms, 889 et seq., 4th ed. As to summonses, see note to sect. 40, post, p. 525. For forms of orders, see Seton, 538-543, 4th ed. The petition should state the particular sections under which the order is to be made (Re Moss, 37 Ch. D. 513; Re Hall, 1888, W. N. 16). Where persons are only constituted trustees by an order in a suit, new trustees cannot be appointed in their place by the same order (Lees v. Coulton, 20 Eq. 20).

33. The person or persons who, upon the making of such order as last aforesaid, shall be trustee or trustees, shall have all the same rights and powers as he or they would have had if appointed by decree in a suit duly instituted (d).

(d) Formerly trustees appointed by the court could not appoint others in their place (Holder v. Durbin, 11 Beav. 594), or exercise discretionary powers (Newman v. Warner, 1 Sim. N. S. 457). See now Conv. Act, 1881, s. 33 (post, p. 603).

34. It shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to direct that any lands subject to the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees: for such estate as the court shall direct; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate (e).

(e) The court has authority to make a vesting order under this act, though there may exist a person capable of executing a conveyance of the trust property to the persons appointed trustees by the court (Re Manning, Kay, App. 28). When the old trustee was of unsound mind not so found, the court, in a case before 53 Vict. c. 5, declined to make in Chancery a vesting order under this section (Re Martin, 34 Ch. Div. 618).