53 Vict. c. 5, s. 110.

Powers to extend to British possessions.

of new trustees

under power

to have effect of appointments by

THE LUNACY ACT, 1890.

53 VICTORIA, CAP. 5, ss. 110, 129, 135-143, 341.

110. The powers and authorities given by this act to the judge in lunacy shall extend to property within any British possession.

129. Where under this act the committee of the estate under order of the judge exercises, in the name and on behalf of the Appointment lunatic, a power of appointing new trustees vested in the lunatic, the person or persons who shall after and in consequence of the exercise of the power be the trustee or trustees shall have all the same rights and powers as he or they would have had if the order had been made by the High Court; and the judge may, in any such case where it seems to him to be for the lunatic's benefit and also expedient, make any order respecting the property subject to the trust, which might have been made in the same case under the Trustee Act, 1850, or any act amending the same, on the appointment thereunder of a new trustee or new trustees.

High Court, and like orders may be made Trustee Act,

as under

1850.

Power to vest

lands and re

lease contingent right of lunatic trustee or mortgagee.

135.-(1.) When a lunatic is solely or jointly seised or possessed of any land upon trust or by way of mortgage the Judge in Lunacy may by order vest such land in such person or persons for such estate, and in such manner, as he directs.

(2.) When a lunatic is solely or jointly entitled to a contingent right in any land upon trust or by way of mortgage, the judge may by order release such hereditaments from the contingent right, and dispose of the same to such person or persons as the judge directs.

(3.) An order under sub-sections (1) and (2) shall have the same effect as if the trustee or mortgagee had been sane, and had executed a deed conveying the lands for the estate named in the order, or releasing or disposing of the contingent right.

(4.) In all cases where an order can be made under this section the judge may, if it is more convenient, appoint a person to convey the land or release the contingent right, and a conveyance or release by such person in conformity with the order shall have the same effect as an order under sub-sections (1) and (2).

(5.) Where an order under this section vesting any copyhold land in any person or persons is made with the consent of the lord or lady of the manor, such land shall vest accordingly without surrender or admittance.

(6.) Where an order is made appointing any person or persons to convey any copyhold land, such person or persons shall execute and do all assurances and things for completing the assurance of the lands; and the lord or lady of the manor shall, subject to the customs of the manor and the usual payments, be

s. 135.

bound to make admittance to the land, and to do all other acts 53 Vict. c. 5, for completing the assurance thereof, as if the persons in whose place an appointment is made were free from disability and had executed and done such assurances and things (a).

(a) Where one of four trustees became a lunatic, the trust property was under this sect. sub-s. (1) vested in the other three trustees (Re Leon, 1892, 1 Ch. 348). When a person who had contracted to sell leaseholds went abroad and was found lunatic there, an order was made under this section vesting the land in the purchaser, the order, however, not to be dated until after payment of the purchase-money (Re Pagani, 1892, 1 Ch. 236). See sects. 3, 4, 20 and 28 of the Trustee Act, 1850, and the notes thereto, ante, pp. 500, 509, 514.

transfer stock

136.—(1.) Where a lunatic is solely entitled to any stock or Power to vest chose in action upon trust or by way of mortgage, the judge in lunacy may by order vest in any person or persons the right to transfer or call for a transfer of the stock, or to receive the dividends thereof, or to sue for the chose in action.

(2.) In the case of any person or persons jointly entitled with a lunatic to any stock or chose in action upon trust or by way of mortgage, the judge may make an order vesting the right to transfer or call for a transfer of the stock, or to receive the dividends thereof, or to sue for the chose in action either in such person or persons alone or jointly with any other person or persons.

(3.) When any stock is standing in the name of a deceased person, whose personal representative is a lunatic, or when a chose in action is vested in a lunatic as the personal representative of a deceased person, the judge may make an order vesting the right to transfer or call for a transfer of the stock, or to receive the dividends thereof, or to sue for the chose in action in any person or persons he may appoint.

(4.) In all cases where an order can be made under this section, the judge may, if it is more convenient, appoint some proper person to make or join in making the transfer.

(5.) The person or persons in whom the right to transfer or call for a transfer of any stock is vested, may execute and do all powers of attorney, assurances, and things to complete the transfer to himself or themselves or any other person or persons according to the order, and the Bank and all other companies and their officers and all other persons shall be bound to obey every order under this section according to its tenor.

(6.) After notice in writing of an order under this section, it shall not be lawful for the Bank or any other company to transfer any stock to which the order relates or to pay any dividends thereon except in accordance with the order (5).

(b) See sects. 5, 6, 20, 26, 27, and 31 of the Trustee Act, 1850, and sect. 6 of the Trustee Act, 1852, and the notes thereto (ante).

right to and sue for chose in

action.

137. Where a person is appointed to make or join in making Person to be a transfer of stock, such person shall be some proper officer of appointed to the Bank, or the company or society whose stock is to be transferred.

transfer.

58 Vict. c. 5, s. 138.

Charity. trustees.

Declarations and directions.

Order to be conclusive evidence of

allegation on which it is founded.

Power to

appoint new trustees.

Costs.

Saving of power of High Court.

Definitions.

138. The powers conferred by this act as to vesting orders may be exercised for vesting any land, stock, or chose in action in the trustee or trustees of any charity or society over which the High Court would have jurisdiction upon suit duly instituted, whether the appointment of such trustee or trustees was made by instrument under a power or by the High Court under its general or statutory jurisdiction (c).

(c) See sect. 45 of the Trustee Act, 1850, and note thereto, ante, p. 527. 139. The judge in lunacy may make declarations and give directions concerning the manner in which the right to any stock or chose in action vested under the provisions of this act is to be exercised.

140. The fact that an order for conveying any land or releasing any contingent right has been founded upon an allegation of the personal incapacity of a trustee or mortgagee shall be conclusive evidence of the fact alleged in any court upon any question as to the validity of the order, but this section shall not prevent a judge of the High Court from directing a re-conveyance of any lands or contingent right dealt with by the order, or from directing any party to any proceeding concerning such land or right to pay any costs occasioned by the order when the same appears to have been improperly obtained.

141. In every case in which the judge in lunacy has jurisdiction to order a conveyance or transfer of land or stock, or to make a vesting order, he may also make an order appointing a new trustee or new trustees (d).

(d) As to the consent of the new trustee to act, see r. 92 and Form 12, post, pp. 542, 543.

142. The judge in lunacy may order the costs of and incident to obtaining an order under the provisions of this act as to vesting orders and carrying the same into effect to be paid out of the land or personal estate or the income thereof in respect of which the order is made, or in such manner as the judge may think fit (e).

(e) See rules under this act, No. 110 (post, p. 542), and the note to sect. 51 of the Trustee Act, 1850, ante, p. 529.

143. The provisions of this act as to vesting orders shall not affect the jurisdiction of the High Court as to any lunatio trustee or mortgagee who is an infant (ƒ).

(ƒ) See sects. 7 and 8 of the Trustee Act, 1850 (ante, pp. 503, 504), and Re Arrowsmith (6 W. R. 642).

341. In this act, if not inconsistent with the context-
"The Bank" means the Governor and Company of the Bank
of England:

Contingent right," as applied to lands, includes a contingent and executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right

of entry, whether immediate or future, and whether vested 53 Vict. c. 5, or contingent:

8. 341.

"Convey" and "conveyance" include the performance of all formalities required to the validity of conveyances by married women and tenants in tail under the " Act for the 3 & 4 Will. 4, abolition of fines and recoveries, and for the substitution of c. 74. more simple modes of assurance," and also surrenders and other acts which a tenant of copyhold lands can perform preparatory to or in aid of a complete assurance of such copyhold lands:

"Dividends" includes interest and other annual produce:
"Land" includes an undivided share of land:

"Lunatic" means an idiot or person of unsound mind:
"Mortgage" includes every estate, interest, or property in
real or personal estate, which is a security for money or
money's worth:

"Stock" includes any fund, annuity, or security transferable
in books kept by any company or society, or by instrument
of transfer alone, or by instrument of transfer, accompanied
by other formalities, and any share or interest therein, and
also shares in ships registered under the Merchant Shipping 17 & 18 Vict.
Act, 1854:

"Transfer" includes assignment, payment, and other disposi-
tion, and the execution, and performance, of every assur-
ance and act to complete a transfer:

"Trust" and "trustee" include implied and constructive
trusts, and cases where the trustee has some beneficial
interest, and also the duties incident to the office of personal
representative of a deceased person, but not the duties
incident to an estate conveyed by way of mortgage (g).
(9) As to constructive trustees, see note (h), ante, p. 499.

c. 104.

THE RULES IN LUNACY, 1892.

Mode of Application.

After Rule 16, which provides for applications for an order for an inquisition by petition, the subsequent rules are as follows:

17. Applications for a traverse and for a supersedeas, and applications under that portion of the Lunacy Act, 1890, which relates to "vesting orders" shall also be made by petition.

19. All other applications under the Lunacy Acts, 1890 and 1891, or under those acts and also in the Chancery Division, shall, unless the judge or masters shall in any particular case otherwise direct, be made by summons at chambers before the

masters.

20. In all cases in which the judge has, under the Lands Clauses Acts, the Settled Estates Act, 1877, the Settled Land

Lunacy Rules, 1892.

1892.

Lunacy Rules, Acts, 1882 to 1890, or any other enactment, jurisdiction to make an order upon petition affecting the property of a lunatic, the application for the order shall, unless the judge or master in any particular case otherwise directs, be made by summons at chambers before the masters.

21. If in any case in which the application is not by these rules or by the judge or masters directed to be made by petition, a petition is presented without the direction of the judge or masters, no further costs shall be allowed than would be allowed upon a summons.

23. All matters which require to be brought before the judge, shall be brought before him out of court. The judge may make an order upon any summons or petition without the attendance of counsel, solicitors, or parties, or after such attendance, or may adjourn the summons or petition into court, or refer the same to the masters for inquiry, or further inquiry, upon any matter. Any matter may be adjourned from court for consideration by the judge out of court.

24. The judge and masters respectively may direct any person to be served with notice of any application, and may dispense with service on any person.

Vesting Orders.

57. Applications under that portion of the Lunacy Act, 1890, which relates to "vesting orders" may be made—

(a) Where the application is for the appointment of new trustees, or relates to property subject to a trust, by any person beneficially interested in the property, whether under disability or not, or by any duly appointed trustee thereof.

(b) Where the application relates to any property subject to a mortgage, by any person beneficially interested in the equity of redemption or in the mortgage money, whether under disability or not.

58. The application shall be intituled in the matter of the trust or mortgage, and of the particular lunacy, and in the matter of the Lunacy Act, 1890.

59. The applicant shall serve any such application upon the person or persons, who, according to the practice of the Chancery Division of the High Court, would be required or entitled to be served in similar cases.

Evidence.

92. The consent of a new trustee to act shall be sufficiently evidenced by a written consent signed by him and verified by a solicitor.

Costs.

110. The rules of the Supreme Court as to costs for the time being in force shall, subject to these rules, apply to the costs of proceedings under the Lunacy Acts, 1890 and 1891, taken after the commencement of these rules in any matter.