Elder's Trustee and Executor Company, Limited, Act 1920 (NSW)

ELDERS TRUSTEE AND

EXECUTOR COMPANY,

LIMITED, ACT.

An Act to confer powers upon Elder ' s T rus t ee and

E x e c u t o r Company, L imi t ed . [Assented t o ,

2 4 t h D e c e m b e r , 1 9 2 0 . ]

WH E R E A S in this State it is often difficult t o : procure proper persons to undertake the onerous

and responsible duties of trustee, executor, or adminis­ trator : And whereas the deaths, resignations, and

absence from the State of executors, trustees, and others
filling similar offices are often attended with great dis­ advantage and loss to the estates with the administration

of which they are entrusted : And whereas it is desirable

for the purpose of obtaining regularity and security in

the administration of trust estates that permanent corporations should be empowered to fill the offices of trustee, executor, administrator, receiver, agent, and other like offices: And whereas a certain company styled " Elder's Trustee and Executor Company, Limited" (hereinafter referred to as the said company), and formed and registered under the provisions of the Companies Acts in force in the State of South Australia, has been duly registered in the State of New South

of estates comprising assets in this State and in the State o f

Wales under the provisions of the Companies (Amend­

ment) Act, 1906-1907, with a capital of five hundred thousand pounds, divisible into five hundred thousand shares of one pound each, for the purpose of undertaking the duties of such offices as aforesaid for a commission : And whereas the said company has from time to time been engaged and is now engaged in the administration

of South Australia and in other states: And whereas it

is expedient that the necessary powers should be
conferred upon the said company (hereinafter called the

company), in order to enable it to act as executor,

administrator, administrator with the will annexed, trustee, receiver, committee of the estates of persons of unsound mind, guardian of the estates of infants, agent under power of attorney or otherwise, liquidator trustee in bankruptcy or of any assignment under the law relating to bankruptcy, and to perform and discharge

all the duties of such offices and to receive remuneration

therefor, and to confer upon the company all such privileges and powers as are necessary or expedient for the purposes aforesaid: Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and

Legislative Assembly of New South "Wales in Parlia­
ment assembled, and by the authority of the same, as

follows :—-

1 . Whenever the company has been or shall be named, either alone or jointly with any other corporation or any person, as executor in the last will and testament, or in the codicil to the last will and testament, of anv testator, it shall be lawful for the company to act as

executor, and to apply for and obtain probate of the will of the testator, and to perform and to discharge all

other the acts and duties of an executor as fully and
effectually as any other executor.

2 . I t shall be lawful for any person or persons

entitled to obtain letters of administration with the will

of any testator annexed of the estate of such testator to

authorise the company, either alone or jointly with any

obtain letters of administration with the will annexed,	other corporation or any person, to apply for and to
which may be granted to the company upon its own application when so authorised.
3 . Any person or persons named expressly or by implication as executors or executor who would he entitled to obtain probate of the will of any testator without reservinir leave to any other person to apply for probate may instead of themselves or himself applying for probate authorise the said company to apply to the Supreme Court for administration Avith the will annexed,

and

and administration with the will annexed may be granted to the said company upon its own application when so authorised unless the testator shall by his will have expressed his desire that the office of executor should not be delegated, or that the said company should not

act in the trust of his will.
4 . I t shall be lawful for any person or persons

entitled to obtain letters of administration of the estate

of any intestate; to authorise the company to apply for

such letters of administration, either alone or jointly with any other corporation, or any person or persons so entitled to obtain such letters of administration, and administration of the estate of the intestate may be granted to the company, either alone or jointly as aforesaid, upon its own application when so authorised.

5 . ft shall be lawful for the company, where the administration of any estate with or without the will annexed has been granted to it, either alone or jointly^ with any other corporation or any person, to do and perform all acts and duties which belong to the office

of the administrator, or administrator with the will

annexed, as the case may be, notwithstanding its
incorporation.

6 . In all cases in which the company is empowered under this Act to apply for probate or for letters of administration, an affidavit made by the manager, assistant manager, acting manager, or secretary, or by such other officer of the company as may from time to time be appointed by the board of directors for that purpose shall lie received, instead of any affidavit required by any Charter, Act of Parliament or rule of court to be made by persons making application for

probate or letters of administration.

7. All the capital, both paid and unpaid, of which paid-up capital twenty thousand pounds shall be invested in the purchase of debentures or inscribed stock in such

of the public funds of the State as the directors of the
company may select, in the name of the Treasurer of the

State in trust for the company, but transferable only

with the joint consent of the said Treasurer and the company, or upon the order of the Supreme Court or a judge thereof, and all other assets of the company, shall

be liable for the proper administration of all estates of

which

which the company shall act as executor or administrator, and no bond for the due administration of any estate shall be required to be given by or on behalf of the company, except in respect of estates exceeding twenty thousand pounds in value, in which the said court or a judge thereof shall otherwise order, and all interest and

income to accrue from time to time from or in respect
of all such debentures and inscribed stock shall be paid

by the said Treasurer to the company as and when the
same shall respectively become payable.

8 .    (1) In all cases where any court of justice or judge

thereof or person has power to appoint any person as—

(a) trustee; or

(b) receiver; or

(c)	committee or manager of the estate of an insane person, insane patient, or incapable person, within the meaning of the Lunacy Act of
1 8 9 8 ; or

(d) guardian of the estate of an infant,

the company may be so appointed

(2) (a) Subject as hereinafter provided the com­ pany may be appointed or may continue to act as sole trustee in all cases notwithstanding that it is provided

by the terms of the instrument (if any) creating the

trust or of any power or otherwise that there shall be

more than one trustee to perform the trust.

(b) "Where the company and one or more

individuals are co-trustees, any one or more of such individuals may retire, and the company shall for the purposes of any Act now or hereafter in force relating

property be deemed to be equivalent to two trustees. to the retirement of trustees and the vesting of the trust (3) The company shall not be appointed in any

case in which the instrument creating the trust or powder

forbids the appointment of the company.

(1) The company shall not be appointed or be entitled to act as sole trustee in any case in which the instrument creating the trust or power expressly provides that there shall be another trustee in addition to the company or that the company shall not be appointed or

act as sole trustee.

(5)

(5) In every case in which the company is

appointed or acts in any of the offices in subsection one

hereof mentioned all the capital of the company, both
paid and unpaid, and all other assets of the company and the directors, manager, and assistant manager

thereof and their respective estates shall be liable for
the proper discharge of the duties of such office.

(G) No bond, recognizance, or other security for the proper discharge of such duties shall be required to

be given by or on behalf of the company.

S. (1) In all cases where before the passing of this

Act the company was appointed new trustee in place of

more than one trustee previously filling the office, such appointment shall be deemed to have been and to be as valid and effectual as if this Act had then been passed.

( 2 ) In all cases where before the passing of this

Act the company xq>on the retirement of one or more

trustees continues to act as sole trustee, the company shall be deemed to have been and to be entitled to act as sole trustee.

(3) The trustees in whose place the company was

so appointed or upon whose retirement the company

continued to act as sole trustee, shall be deemed to have
been and to be discharged from the trust.

1 0 .     (1) The company shall be capable of acquiring

and holding any property in joint tenancy in the same

manner as if it were an individual.

(2) Where the company and an individual, or the

oompany and another body corporate, become entitled to any property under circumstances or by virtue of any

instrument which, if the company or other body	corporate had been an individual, would have created a
joint tenancy, they shall be entitled to the property as joint tenants.

(3) AVhcre the company or other body corporate

is a joint tenant of any property, then on its dissolution
the property shall devolve on the other joint tenant,

1 1 .    Where any property is now or hereafter becomes

vested in the company and an individual, or in the com­ pany and another body corporate, to the intent that they should hold the same jointly in any fiduciary capacity,

N or

or as mortgagees, they shall he deemed to he joint

tenants thereof, and not tenants in common unless other­
wise expressly provided.

1 2 .     I t shall he lawful for the company to act, either

alone or jointly with any other corporation or any person, as attorney, whenever it shall he appointed by deed attorney for any person or any corporation, and all the powers conferred upon the company by any power of attorney may be exercised and carried into execution

by the manager, assistant manager, acting manager, or

secretary, or by such other officer of the company as may from time to time be appointed by the board of directors for that purpose, or by any two of the directors

of the company ; but in all cases the capital, both paid

and unpaid, and all other assets of the company, shall
be liable for the due execution of the powers so conferred
upon the company : Provided always that nothing herein contained shall he deemed to authorise any person, company, or corporation to confer any power upon the company which cannot by law be delegated or performed

by attorney.

13.       I t shall be lawful for any executor, administrator,

or trustee by deed to delegate to the company, either alone or jointly with any other corporation or any person, as
his attorney all such trusts and powers as may by law be delegated, and all acts done by the company within the

scope of such delegation shall, in favour of any persons
dealing with the company without notice of death or revocation of authority by such executor, administrator,
or trustee, he valid and effectual notwithstanding such

death or revocation.

1 4 .     I t shall be lawful for the Supreme Court or any

judge thereof sitting in its equity or probate jurisdiction, on the application of any executor or administrator acting under any probate or letters of administration granted either before or after the coming into operation

of this Act, to appoint the company, either alone or

jointly with any other corporation or any person, to be

administrator in his place or stead, and thereupon the company shall have the same powers and authorities as

if it had been the original executor or administrato;.' as

the case may b e ; and in every such case all the capital,

both

both paid and unpaid, and all other assets of the com­ pany, and the manager, assistant manager, acting manager, and the directors and their respective estates, shall be liable for the due administration of the estates of which the company shall be so appointed administrator.

1 5 .     (1) In al 1 cases in which the personal attendance

of an executor, administrator, trustee, receiver, committee,
or guardian is required in any court of justice or else­
where, the company shall be entitled to make such attendance in the person of the manager, assistant manager, acting manager, or secretary, or such other
officer of the company as may from time to time be
appointed by the board of directors for that purpose.
(2) All declarations and all affidavits, statements
of defence, or other statements required by law to be

made on oath may he made and sworn on behalf of the company by the manager, assistant manager, acting manager, or secretarv.

(3) In every case where the company obtains

probate or letters of administration, or is appointed and

acts as trustee, receiver, committee, or guardian, the
manager, assistant manager, and directors in then- proper persons and estates, shall be individually and
collectively responsible for the due administration of the
estates entrusted to the company, and shall in their own proper persons be liable by process of attachment, com­ mitment for contempt, or by other process, to all courts having jurisdiction in that behalf in the event of dis­ obedience to the rules, orders, and decrees of such courts made against the company in the same manner and to the same extent as if such manager, assistant manager,

and directors had personally obtained probate or letters	of administration, and had acted as executor or
administrator, trustee, receiver, committee, or guardian, and as if the rule, order, or decree had been made against them personally instead of against the company.

(4) Notwithstanding such personal respon­

sibility of the said manager, assistant manager, and
directors, the capital both paid and unpaid, and all other assets of the company, shall remain liable for any loss which may be occasioned by or which may happen through any breach of trust or duty committed by the

company

company or any of its officers, whether such trust or duty is implied by law or expressly conferred or imposed

by the instrument under which the company acts.

(5) No person shall be appointed a director or

manager of the company unless he is a bona fide resident
of either the State of New South "Wales or the State of

South Australia, and any person being a director or manager of the company who ceases to reside in either

of such States shall, upon so ceasing to reside, vacate his

office, and such vacancy shall be filled up in the manner

provided by the articles of association for filling casual
vacancies.

1 6 . The company shall be entitled to receive, in addition to all moneys properly expended by it and chargeable against any estate of which the administra­ tion shall be committed to the company, whether as

executor, administrator, trustee, receiver, committee, or

guardian, a commission at a rate to be fixed from time to time by the board of directors of the company, but not to exceed in any case two pounds ten shillings for every one hundred pounds of the corpus or capital value
of any such estate, and five pounds for every one hundred

pounds of the annual income of any such estate received
by the company, and of all moneys, whether capital or income, received by the company as an attorney acting
under power of attorney, and such commission shall be payable out of the moneys in possession of the company representing the estate upon which the same shall be

chargeable, and shall be accepted by the company in full satisfaction of any claim to remuneration for acting

as such executor, administrator, receiver, trustee, com­
mittee, guardian, or attorney, and no other charges
beyond such commission and moneys properly expended
by the company shall be made or allowed: Provided that if in any estate any judge in equity, or judge in probate, shall he of opinion that the rate of commission charged is excessive such judge may review any such

commission: Provided also that the commission
charged by the company against any estate shall not

exceed the amount of the published scale of charges of

the company at the time when the administration of such estate was committed to the company, nor shall

this

this enactment prevent the payment of any commission directed by a testator in his will either in addition to or in lieu of the commission hereinbefore authorised.

1 7 . Whenever the company shall have been
appointed executor, administrator, trustee, receiver,

committee, guardian, or attorney, it shall be subject in all respects to the same control, and to removal or

restraint from acting and generally to the jurisdiction of the courts, in the same manner as any other executor, administrator, trustee, receiver, committee, guardian, or attorney.
1 8 . I t shall he lawful for any trustee, cestui que. trust, executor, legatee, administrator, next of kin, or creditor entitled to or interested in any estate which shall for the time being be under the management or control of the company, after demand in writing made to the manager, assistant manager, or acting manager of the company, for a sufficient account of the property and assets of which such estate shall consist, and of the disposal and expenditure thereof or thereout ; and upon non-compliance with such demand within a reasonable

time, to apply to any judge in equity or judge in probate

of the Supreme Court in a summary manner upon

motion after notice to the company for an account, and

if the said judge shall be of opinion that no sufficient

account has been rendered by the company, the said judge shall order such account to be rendered by the company as to the said judge shall seem just, or if the said judge shall think that under the circumstances the company was not bound to furnish any account or that a sufficient account, had been furnished, it shall be lawful for the
said judge to dismiss the application, and the said judge shall have power in all cases to make such orders as to
costs either against the company or against the applicant,

or as to payment of costs out of the estate as to the said

judge shall seem right.

1 9 .     I t shall be lawful for the said judge in equity

or judge in probate, upon the making of any application
under the last preceding clause, to order, in addition to

or in substitution for any account to be rendered by the

company, that a person to be named in such order shall examine the books and accounts of the company in

reference

reference to the estate as to which the order is made,

and in that case the directors and officers of the company
shal l deliver to the person named in such order a list of all the hooks kept by the company, and shall produce to
such person at the office of the company at all reasonable

times when required all books and accounts, vouchers, papers, and other documents of the company relating to

such estate, and shall afford him all necessary informa­ t ion and all other necessary facilities for enabling him

to make the said examination, and the said judge shall have the same power over the costs of such examination as is given by the last preceding section over the costs

of an application under that section.

2 0 . So long as any estate, in respect of which the

company is executor, administrator, trustee, committee,

or guardian, shall remain in whole or in part unad-

ministered, it shall not he lawful to proceed to wind up the company voluntarily unless with the sanction of the said judge, and it shall be lawful for any person interested in such estate, or who may have any claim in respect thereof, to apply to the said judge in a summary way by motion to restrain any director or any shareholder from disposing of any shares which such director or share­ holder may hold in the company, or to restrain the winding up voluntarily of the company, and the said judge shall have power to make such order upon such application as the circumstances of the case shall appear to the said judge to require.

2 1 . If it he proved at any time to the satisfaction of

any judge in equity or judge in probate that three-fourths

or more of the amount of capital authorised by this Act

to he called up has been lost by the company, it shall
be lawful for such judge, upon the application of any

member, creditor, or cestui que trust of the company, to
make an order for the winding up of the company.

2 2 . In the event of the company being wound up, every person who has been a director of the company at any time within the period of two years preceding the commencement of the winding up shall be liable for the

balance unpaid on every share which he may have
transferred during such two years, in addition to his

liability upon any such shares held by him at the

commencement

commencement of the winding op in the event of the holder or holders of such shares being unable to pay the said balance per share in full.

2 3 . All moneys which form part of any estate of which at any time the company shall be executor, administrator, or trustee, and which moneys shall remain unclaimed by the person entitled to the same

for a period of live years after the time when the same

shall have become payable to such person, except where payment has been or shall be restrained by the injunc­ tion of some court of competent jurisdiction, shall, together with interest at current rates on fixed deposits in banks, be paid by the company into the State Treasury to be placed to the credit of a fund to be called the testamentary and trust fund, distinguishing the particular estates in respect of which such moneys shall have been paid, and the Treasurer shall from time to time invest such moneys in the purchase of Government debentures or stock to be placed to the credit of the said testamentary and trust fund, distinguishing in the ledger the particular estate in respect of which such moneys shall have been invested ; and the interest payable on such debentures or stock shall be placed to the credit of the said fund, and the said Treasurer's said account in the ledger shall be an official and not a nominal account, and in all transfers of the said deben­ tures and stock by the said Treasurer he shall be so- styled without any name, addition, or description, and he shall not sign any such transfers or pay over any of the moneys standing to the credit of the said fund unless an order of any judge in equity or judge in probate directing such transfer and specifying the amount of

and addition of the person to whom the proceeds of such	moneys, debentures, or stock, and the name, description,
sale an; to be paid shall be left at the office of the said
Treasurer, nor until the purchase money of the deben­ tures or stock to be sold has been received in the Treasury ; and the company shall at the end of every six months deliver to the said Treasurer a statement of all such unclaimed moneys which during the preceding six months shall have been in its hands, and distinguishing the several estates in respect of which the same have been received, and setting out the dates and amounts of

the

the several payments of the same under this section ; and if the said moneys or any part thereof have not been paid into the Treasury with a statement of the reason for the delay of such payments, and if default is made in compliance with the foregoing provisions of this section, the company shall he liable to a penalty not

exceeding five pounds for every day while such default

continues, and every director and manager, assistant manager, or acting manager of the company who knowingly and wilfully authorises or permits such default shall incur the like penalty.

2 4 . I t shall he lawful for any person who shall he entitled to any stock debentures or moneys which shall at any time form part of the said testamentary and trust fund to apply to any judge in equity or judge in probate, upon petition in a summary way, for such order as is in the last-preceding section referred to, and the said judge shall deal with such application as nearly as may be in the same manner as in the ease of applications to the said court under the Trustee Act of
1898 : and in all cases in which the Treasurer may see lit to appear upon such petition, he shall be entitled to

such costs against the applicant or out of the fund as
the said judge may direct.

2 5 .     I t shall be lawful for the Treasurer after demand

in writing addressed to the manager, assistant manager,

or acting manager of the company for a sufficient

account of the property and assets of which any or every estate included in or which ought to be or to have been included in the hereinbefore mentioned statement

and expenditure thereof, of or thereout, to apply to the of unclaimed moneys shall consist, and of the disposal

said judge in a summary way, upon motion after notice

to the company, for an account, and if the said judge shall be of opinion that no sufficient account has been rendered by the company, the said judge shall order such account to be rendered by the company as to the said judge shall seem just, or if the said judge shall think that under the circumstances the company was not bound to furnish any account, or that any account furnished by the company was sufficient, it shall be lawful for the said judge to dismiss the application, and

the

the said judge shall have power in all cases to make such order as to costs either against the company or as to payment of costs out of the estate as to the said judge shall seem right.

2 6 . The manager, assistant manager, or acting manager of the company shall during the months of April and October in every year during which the company carries on business, make before some justice
of the peace a declaration in the form contained in the
Schedule hereto, or as near thereto as circumstances will

admit, of the receipts, expenditure, and investments of and in all estates and property held by the company in trust up to the thirty-first day of March or thirtieth day of September then last past; such declaration shall within seven days after the making thereof he filed in the office of the Master in Equity, and a copy of such declaration shall he put up in a conspicuous place in the registered office of the company and in every branch office or place where the business of the company is carried on, and shall be given to any member or creditor of the company, or any cestui que trust who applies for the same ; and if default is made in compliance with the provisions of this section the company shall be liable to a penalty not exceeding five pounds for every day whilst such default continues, and every manager, assistant manager, or acting manager of the company who knowingly and wilfully authorises or permits such default shall incur the like penalty.

2 7 . Every order made by any judge in equity, or

judge in probate, or any other judge under tin's Act,

the same conditions as other orders of the said judges. shall be subject to appeal in the same manner and under 2 8 . Nothing in this Act contained shall be deemed

to give to the company any right to oppose the granting
of similar powers to those conferred upon the company
by this Act to any other company or to corporations
generally, or to claim or to seek compensation in consequence of such powers being conferred upon any other company, or upon corporations generally, or in the event of provision being made by Parliament for the

management

management of trust estates by a public trustee or department or officer of the Government, or in the event

of the repeal of this Act .

2 9 .     Where by any settlement, will, codicil, or other

testamentary writing a settlor or testator shall direct that any practising solicitor or solicitors shall conduct the legal business of his or her estate, such solicitor or

solicitors shall be entitled to act therein accordingly,

but in such case the company shall not be liable for the

negligence, misfeasance, nonfeasance, or misconduct of

such solicitor or solicitors, and such solicitor or solicitors may be removed by the order of any judge in equity or judge in probate upon the application of the company

or of any person interested in the said estate upon cause

shown, and then and in such case the said judge may appoint the solicitor or solicitors of the company to conduct such legal business.

3 0 . Except so far as is herein expressly provided, the company shall have and be subject to the same restrictions, liabilities, penalties, privileges, and powers as it has and is subject to under its present incorporation, and this Act shall not otherwise affect the incorporation

of the company.

3 1 . Any penalty imposed by this Act may be recovered in a summary way before two or more justices
of the peace.

3 2 . This Act shall be called and may he cited as

"Elder's Trustee and Executor Company, Limited,

Act,	1920 ."
S C H E D U L E .

S C H E D U L E .

Elder's Trustee and Executor Company, Limited.

1 (manager, assistant manager or acting manager, as the case may be)
do hereby solemnly and sincerely declare : —

That the liability of the members is limited.

That the capital of the company is	pounds, divided into
shares of	pounds each.

That the number of shares is

That calls to the amount of have been made under which

the sum of .£ has been received.

That the assets of the company other than assets held on trust on

the day of were :—

Government securities ... ... . . . £

bills of exchange and promissory notes .. . £

Cash at the banks ... ... . . . ... £

Other	securities	...	...	. . .	. . .	£
Total	. . .	£

That the value of the real and personal property come to the hands

of the company as trustees, executors, administrators, receivers, and

agents since its registration in the State of New South Wales up to and inclusive of the day of , one thousand nine

hundred and , was as follows :—

( ) Estimated values.

Real property	...	...	...	...	£
Chattels real	£

Moneys secured by mortgage of real property	£
Moneys secured by mortgage of personal

property ... ... ... . . . £

Unsecured debts and claims ... . . . £

Debentures	...	...	. . .	. . .	...	£
Bank	shares...	...	. . .	...	...	£

Shares in other com) anies (other than bank

shares)	.. .	...	. . .	...	. . .	£
Cash...	. . .	...	. . .	. . .	...	£

Total receipts . . . £

That from the date of the registration of the company in the State

of New South Wales to the	, one thousand nine hundred
and	, the following are the amounts of—•

Real property conveyed to beneficiaries ... £

Cash paid to beneficiaries as corpus	.. .	£
Cash paid to beneficiaries as income	. . .	£
Cash applied in payments of debts	...	£

Cash applied in payment of administration

expenses ... ... ... . . . £

Commission retained ... . . . ... £

Total expenditure .. . £

That

That the investments and moneys held by the company upon trust

on the day of , one thousand nine hundred and

, were as follows :—

Real	property	. . .	. . .	. . .	. . .	£
Chattels	real	. . .	. . .	. . .	. . .	£
Mortgages	...	. . .	. . .	. . .	. . .	£
Debentures	. . .	. . .	. . .	. . .	. . .	£
Rank	shares...	. . .	. . .	. . .	. . .	£

Shares in other companies... . . . . . . £

Money on deposit with banks and other

companies . . . . . . . . . . . . £

Cash on hand ... . . . . . . . . . £

Total . . . £

And I make this solemn declaration as to the matters aforesaid, conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act of 1900.