Gambar halaman
PDF
ePub

c. 55, s. 2.

trustee to

convey or

therein upon any trust, and a demand shall have been made 15 & 16 Vict. upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly-authorized agent of such refusal or last-mentioned person, requiring such trustee to convey or neglect of a assign the same, or to release such contingent right, it shall be lawful for the Court of Chancery, if the said court shall be release. satisfied that such trustee has wilfully refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person, in such manner and for such estate as the court shall direct, or releasing such contingent right in such manner as the court shall direct; and the said order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands, or a release of such right, in the same manner and for the same estate (b).

(b) The words between brackets are repealed by 38 & 39 Vict. c. 66, s. 1.

A refusal is not "wilful" within this section if the trustee entertains bona Cases under fide doubt as to the title of the applicant to call for a conveyance (Re Mills, this section. 40 Ch. Div. 14). An order has been made under this section to defeat an attempt at extortion on the part of a trustee (Re O'Donnell, 19 W. R. 522). Where one of two trustees of mortgages absconded, and refused to transfer to the continuing and a new trustee, a vesting order was made, but the court required the new trustee to be joined as co-petitioner (Re Keeley, 53 L. T. 487; see Re Grayson, 27 W. R. 534).

A. having been declared a trustee of leaseholds for the plaintiff, and ordered to execute an assignment, refused to execute. Notice of motion for an order directing A. to execute the deed within four days, or for a vesting order, was served on A., who did not appear. The motion having stood over for twenty-eight days, a vesting order was made under this section on an ex parte application (Knight v. Knight, 1866, W. N. 114). And where the defendant had been declared a trustee for the purpose of executing a lease to the plaintiff, and neglected to do so within twentyeight days after formal demand, an order was made that on the consideration money being brought into court, the chief clerk should execute the lease (Derham v. Kiernan, I. R. 5 Eq. 217; see note to sect. 20 of Trustee Act, 1850, ante, p. 509. See also Warrender v. Foster, Seton, 4th ed. 538, and the power given by Jud. Act, 1884, s. 14).

Where a mortgagor covenanted to surrender copyholds to his mortgagee, and neglected to surrender for twenty-eight days after demand and tender of engrossment, a vesting order was made on the petition of the mortgagee (Re Crowe's Mortgage, 13 Eq. 26). See also, as to the instrument to be tendered in the case of copyholds, Rowley v. Adams (14 Beav. 130). Separate orders may be made as to different parts of the property if convenient (Brader v. Kirby, 1872, W. N. 174).

The petition need not be served on the recusant (Re Crowe's Mortgage, 13 Eq. 26; see Ex p. Armstrong, 16 Sim. 296; Re Baxter, 2 Sm. & Giff. App. 5). An order vesting lands, which were subject to an annuity, was made under this section, without requiring service on the annuitant (Re Winteringham, 3 W. R. 578).

The case of trustees refusing or neglecting to transfer stock is provided for by Trustee Act, 1850, ss. 23, 24.

For form of order under this section, see Seton, 4th ed. 508.

3. When any infant shall be solely entitled to any stock upon Power to any trust, it shall be lawful for the Court of Chancery to make make an an order vesting in any person or persons the right to transfer order for the such stock, or to receive the dividends or income thereof; and receipt of

transfer or

e. 55, s. 3.

dividends of

15 & 16 Vict. when any infant shall be entitled jointly with any other person or persons to any stock upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer stock in name such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in him or them, together with any other person or persons the said court may appoint (c).

of an infant

trustee.

Infant solely entitled.

Infant jointly entitled with other person.

On neglect to transfer stock for twentyeight days, order may be made

vesting right

(c) Under the Trustee Act, 1850, the court had no jurisdiction to make a vesting order with regard to stock held by an infant sole trustee (Cramer v. Cramer, 5 De G. & S. 312). Under this section where stock is standing in the name of an infant who is the sole beneficial owner of it, but subject to a provision in regard to maintenance or otherwise which is vested in somebody else, the infant may be declared a trustee and a vesting order made (Gardner v. Cowles, 3 Ch. D. 304; see Sanders v. Horner, 25 Beav. 476). So, also, where there was no provision for maintenance, but only an order by a Scotch court for maintenance (In re Findlay, 32 Ch. D. 221; but see Ib. p. 641).

An infant was declared a trustee of stock standing in his own name, and to which he was absolutely entitled in order to obtain payment of dividends to his guardian (Re Westwood, 6 N. R. 61); but this was subsequently discharged and an order under 1 Will. 4, c. 65, s. 32, substituted (6 N. R. 316).

Where money, in which infants were beneficially interested, was by mistake invested in their names in consols, the court upon a bill filed by executors, who were entitled to the control of the money, declared the infants trustees for the plaintiffs, and directed a vesting order (Rives v. Rives, 1866, W. N. 144).

Where stock to which an infant was beneficially entitled was standing in the joint names of himself and another person, it was vested by an order in that other person (Re Harwood, 20 Ch. D. 536; Re Barnett, 1889, W. N. 216). Where a father transferred stock into the joint names of himself, his wife, and an infant child, and the evidence showed that the transfer was made under a mistake, the court declared the infant a trustee for the father and made an order under this section (Devoy v. Devoy, 3 Sm. & Giff. 403; followed in Stone v. Stone, 3 Jur. N. S. 708). Where stock was standing in the names of three trustees and an infant, and two trustees were dead, and the third was out of the jurisdiction, the court appointed a guardian and allowed maintenance, and vested the right to receive the dividends in the guardian during the minority (Re Morgan, Seton, 4th ed. 516).

For forms of orders under this section, see Seton, 4th ed. 509, 512.

4. Where any person shall neglect or refuse to transfer any stock, or to receive the dividends or income thereof, or to sue for or recover any chose in action, or any interest in respect thereof, for the space of twenty-eight days next after an order of the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery in such person to make an order vesting all the right of such person to transfer such stock or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said court may appoint (d).

to transfer

as the court

shall appoint.

(d) See sect. 23 of the Trustee Act, 1850, and note, ante, p. 511. An order under this or the following section must not deal with a larger

subject-matter than the previous order which it proposes to enforce (Skynner v. Pelichet, 9 W. R. 191). A petition for a preliminary order under this section need not be served upon the trustee (Re Mount, 24 L. T. 290). An order under this section has been made upon motion (Re Holbrook, 8 W. R. 3). Applications under this section, in all cases where an order has been made for a transfer of stock, should be in chambers (R. S. C. Ord. 55, r. 2 (8)).

As to service of an order under this section, see Coles v. Benbow (1873, W. N. 60).

For forms of orders under this section, see Seton, 4th ed. 513.

15 & 16 Vict.

c. 55, s. 4.

executor,

5. When any stock shall be standing in the sole name of a On like deceased person, and his personal representative shall refuse or neglect by neglect to transfer such stock or receive the dividends or income similar order thereof for the space of twenty-eight days next after an order of may be made. the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said court may appoint (e).

(e) See sect. 25 of the Trustee Act, 1850, ante, p. 512.

For form of order under this section, see Seton, 4th ed. 511.

companies to

6. When any order, being or purporting to be under this act, Bank of or under the Trustee Act, 1850, shall be made by the Lord England and Chancellor, intrusted as aforesaid, or by the Court of Chancery, comply with vesting the right to any stock, or vesting the right to transfer such orders. any stock, or vesting the right to call for the transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly; and the person or persons so appointed shall be 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, to the extent and in conformity with the terms of the 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 (ƒ).

(f) This section, so far as relates to the jurisdiction in lunacy, has been repealed as to England by 53 Vict. c. 5, s. 342; see sect. 145 of that act. This provision appears to have been introduced in consequence of Re Smyth (4 De G. & S. 499). The bank are bound under this section to comply with a vesting order in proper form, but are entitled to require that the order shall show that the statutory requirements have been satisfied (Re Tweedy, 28 Ch. Div. 529).

7. Every order made or to be made, being or purporting to Indemnity to be made under this or the Trustee Act, 1850, by the Lord bank and

companies so obeying.

c. 55, s. 7.

15 & 16 Vict. Chancellor, intrusted as aforesaid, or by the Court of Chancery, and duly passed and entered, shall be a complete indemnity to the Bank of England, and all companies and associations whatsoever, and all persons, for any act done pursuant thereto; and it shall not be necessary for the Bank of England, or such company or association, or person, to inquire concerning the propriety of such order, or whether the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, had jurisdiction to make the same (g).

Power to

appoint new trustees in lieu of per

sons convicted

of felony.

Power to the court to appoint new

(g) This section, so far as relates to the jurisdiction in lunacy, has been repealed as to England by 53 Vict. c. 5, s. 342. See sect. 333 of that act, which contains a similar indemnity.

8. When any person is or shall be jointly or solely seised or possessed of any lands or entitled to any stock upon any trust, and such person has been or shall be convicted of felony, it shall be lawful for the Court of Chancery, upon proof of such conviction, to appoint any person to be a trustee in the place of such convict, and to make an order for vesting such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee; and such order shall have the same effect as to lands as if the convict trustee had been free from any disability, and had duly executed a conveyance or assignment of his estate and interest in the same (h).

(h) The court cannot make a vesting order under this section except in cases where it appoints a new trustee (Re Hulme, 57 L. T. 13). So where one of two trustees of lands, partly within and partly without the jurisdiction of the palatine court, was convicted of felony, and the palatine court appointed a new trustee and vested the land within its jurisdiction, the High Court could not vest the other land under this section, but an order was made under sect. 10 of the Act of 1850 (Ib.) See Trustee Act, 1850, s. 46 (ante, p. 527), as to the escheat of trust property; and Trustee Act, 1850, s. 32 (ante, p. 517), as to the appointment of new trustees.

9. In all cases where it shall be expedient to appoint a new trustee, and it shall be found inexpedient, difficult, or impractrustees where ticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said court to make an order appointing a new trustee or new trustees whether there be any existing trustee or not at the time of making such order (i).

there is no

existing trustee.

Chancellor may make order for

(i) See the note to Trustee Act, 1850, s. 32, ante, p. 519.

10. In every case in which the Lord Chancellor, intrusted as aforesaid, has jurisdiction under this act, or the Trustee Act, appointment 1850, to order a conveyance or transfer of land or stock, or to make a vesting order, it shall be lawful for him also to make an order appointing a new trustee or new trustees, in like manner as the Court of Chancery may do in like cases, without its being necessary that the order should be made in Chancery

of trustees, without it being necessary that it should be made in

Chancery, &c.

as well as in lunacy, or be passed and entered by the registrar 15 & 16 Vict. of the Court of Chancery (j).

(j) This section has been repealed as to England by 53 Vict. c. 5, s. 342. See now sect. 141 of that act (post, p. 540). Where a petition was presented under the Trustee Acts, 1850 and 1852, for the appointment of new trustees in the place of trustees, some of whom were dead and the survivor a person of unsound mind, the petition might be entitled in lunacy only (Re Owen, 4 Ch. 782; Re Green, 10 Ch. 272; Re Rolls Hoare, 1888, W. N. 94). In some cases appointments have been made in lunacy, but the petition was entitled in Chancery for the purpose of a vesting order (Re Lamotte, 4 Ch. Div, 325; Re Smyth, 55 L. T. 37; Re Druce, 46 L. T. 669).

c. 55, s. 10.

intrusted with

11. All the jurisdiction conferred by this act on the Lord As to powers Chancellor, intrusted by virtue of the Queen's sign manual with of persons the care of the persons and estates of lunatics, shall and may be the care of had, exercised and performed by the person or persons for the lunatics. time being intrusted as aforesaid (k).

(k) This section has been repealed as to England by 53 Vict. c. 5, 8. 342. See now sect. 108 (1) of that act, and the note to the Trustee Act, 1850, s. 3 (ante, p. 500).

part of Trus

12. This act shall be read and construed according to the Act to be definitions and interpretations contained in the second section of construed as the Trustee Act, 1850 (7), and the provisions of the said last- tee Act, 1850. mentioned act (except so far as the same are altered by or inconsistent with this act) shall extend and apply to the cases provided for by this act, in the same way as if this act had been incorporated with and had formed part of the said Trustee Act, 1850.

(1) See ante, pp. 496-499.

Trustee Act,

13. Every order to be made under the Trustee Act, 1850, or All orders this act, which shall have the effect of a conveyance or assign- made under ment of any lands, or a transfer of any such stock as can only 1850, or this be transferred by stamped deed, shall be chargeable with the act, to be like amount of stamp duty as it would have been chargeable chargeable with if it had been a deed executed by the person or persons stamp duty as seised or possessed of such lands, or entitled to such stock; and deeds of conevery such order shall be duly stamped for denoting the payment veyance. of the said duty (m).

(m) For the present regulations as to stamps on orders under the Trustee Acts, see Stamp Act, 1891, ss. 54, 62, and first schedule to the act. Compare Registrars Notice, 1871, W. N. Part 2, p. 112.

with the same

« SebelumnyaLanjutkan »