Hosking’s Trust Act (1861 No hta) (NSW)

An Act to authorize the Sale and Exchange of Proper ty held in t rus t for Mrs. Martha Fox- lowe Hosking and her Issue. [9th May, 1861.]

WH E 1 1 E A S M a y in t h e year one thousand eight h u n d r e d a n d forty-five

by an inden tu re bea r ing date t he twen ty-s ix th day of

and m a d e between Rosetta Ter ry of t h e ci ty of Sydney in t he Colony

of N e w South W a l e s widow now deceased of t he first p a r t J o h n

H o s k i n g of t h e same place; Esqu i r e a n d M a r t h a Foxlowe his wife of

the second p a r t and F ranc i s Clarke a n d H e n r y Ter ry Sheldon bo th of

the ci ty of Sydney aforesaid E s q u i r e s of t h e th i rd part- After reci t ing t h a t t h e said Rosetta Te r ry was seized in her demesne as of fee of and in t h e lands he red i t aments and premises thereinaf ter par t icu la r ly

described A n d fur ther rec i t ing t h a t t h e said Roset ta Ter ry was

inden tu re par t icu la r lv m e n t i o n e d and described upon t ru s t to receive

desirous of se t t l ing t h e said he red i t amen t s upon her daugh te r t h e said

M a r t h a Foxlowe H o s k i n g and t h e chi ldren of the said M a r t h a Foxlowe

Hosking in m a n n e r thereinaf ter ment ioned in considerat ion of t he

n a t u r a l love and affection which the said Rose t ta Terry bore towards

the said M a r t h a Foxlowe H o s k i n g t h e said Rose t t a Ter ry did g r a n t ba rga in sell alien release and confirm u n t o tin; said Eranc i s Clarke and H e n r y Ter ry Sheldon and the i r heirs cer ta in pieces or parcels of l and in t h e Colony of N e w South W a l e s viz .—one thousand one h u n d r e d and

five acres e ight h u n d r e d and e ight acres six h u n d r e d and forty acres

one t housand th ree h u n d r e d acres six h u n d r e d and forty acres six

h u n d r e d and forty acres six h u n d r e d and forty acres and one t housand acres of land in t h e coun ty of M u r r a y in t he said Colony two roods two roods and two roods of l and in t he t o w n of Qucanbeyan in t h e said coun ty respect ively e ighty acres and one h u n d r e d acres of land in t h e coun ty of Cumber land respectively six h u n d r e d a n d forty acres a n d

e ight h u n d r e d acres of l and in t h e coun ty of M u r r a y and fifty acres in

t h e district of E v a n in t h e said Colony Al l which several pieces or parcels of land wi th t he abu t ta l s and boundar ies thereof were in such

t h e r en t s and profits thereof du r ing the life of t he said M a r t h a Foxlowe H o s k i n g and to pay t h e same u n t o such person or persons as she t h e said M a r t h a Foxlowe H o s k i n g should from t ime to t ime appoint A n d in default of appo in tmen t in to he r own hands for her own separate use free from the; debts control or engagements of her t h e n present or any fu ture husband and after t he decease of the said M a r t h a Foxlowe H o s k i n g upon t ru s t t o s tand possessed of the said he red i t aments and premises for t h e first son of t he body of t h e said M a r t h a Foxlowe H o s k i n g to be begot ten and for t he heirs male of t he body of such first son a n d for default of such issue t h e n u p o n t r u s t for t h e second th i rd four th and all and every o ther son a n d sons of the body of t he said M a r t h a Foxlowe H o s k i n g to be begot ten severally successively and in remainder one after ano ther according as they should be in seniority of age and pr ior i ty of b i r t h and for t h e several and respective heirs male of t h e body and bodies of all a n d every such son a n d sons t he elder of such sons a n d t h e heirs male of h is body a lways to be preferred and to t ake before t h e younger of such sons a n d t h e heirs male of his and the i r body and bodies and in default of such issue upon t r u s t for all and every t he daugh te r s of t h e said M a r t h a Foxlowe H o s k i n g begot ten and to be begotten as t e n a n t s in common if more t h a n one; and t h e heirs of the i r respective bodies issuing and if any one or more of such daugh te r or daugh te r s should depar t th is life and t he r e should be a failure of issue of her or the i r body or respect ive bodies t hen as to for and concerning as well t h e or iginal share; or shares of such child or chi ldren who should so die a n d whose issue should so fail as to t he share or shares which should survive or accrue to any such daugh te r or daugh te r s or to the i r or any of the i r issue by t h e decease and failure of issue of any o ther or o thers of t h e said daugh te r or daugh te r s upon t r u s t for t he survivors or survivor or others or other of t h e said daugh te r or daugh te r s to be divided 1 ictween or a m o n g t h e m (if more t h a n one) in equal shares as t enan t s in common and the heirs of the i r respective bodies issuing and if all such daugh te r s (save one) shall die wi thou t issue or if the re should be b u t one such daugh te r t h e n upon t ru s t for such one or only daugh te r and the heirs of he r body issuing and in default of such issue t h e n upon t r u s t for t h e heirs and assigns of t he

said M a r t h a Foxlowe H o s k i n g A n d it was the reby agreed and

declared t h a t t he said Trus tees or Trus tee for t h e t ime be ing should after t h e decease of t h e said M a r t h a Foxlowe Hosk ing and du r ing the; minor i ty of any child of t h e said M a r t h a Foxlowe H o s k i n g pay and

apply t h e r en t s issues and profits of t h e said he red i t ament s and

premises or of h is or her share t he re in u n t o and for his or he r main­ t enance educat ion and benefit and should suffer t h e res idue (if any) of t h e r en t s issues and profits of t he said he red i t amen t s or share to accumula te in the way of compound interes t for t he benefit of t h e person or persons who should become u l t imate ly ent i t led to t he said he red i t ament s or share from which t h e same should have proceeded A n d whereas t h e said H e n r y Ter ry Sheldon one of t h e Trus tees of t h e said i nden tu re of se t t lement depar ted th is life and the said M a r t h a Foxlowe H o s k i n g by v i r tue and in exercise of t h e power reserved to her by such inden tu re of se t t lement did by inden tu re bear ing date t h e s ix th day of J a n u a r y one thousand e ight h u n d r e d

and forty-eight and made between t h e said M a r t h a Foxlowe

Hosk ing of t h e first pa r t t he said F ranc i s Clarke of t h e second

p a r t and F ranc i s Mi tche l l of Sydney aforesaid m e r c h a n t of the;

t h i rd pa r t appoint t he said F ranc i s Mitchel l to be a Trus tee of such inden tu re in t he place and stead of the said H e n r y Ter ry Sheldon deceased and by such inden tu re all and s ingular t he said t r u s t premises

heirs a n d assigns as jo in t t enan t s and as Trustees of t he said i nden tu re

of se t t lement A n d whereas t h e said i nden tu re of se t t lement contains

no power enabl ing t h e Trus tees thereof for t h e t ime being to sell t he said several pieces or parcels of land or any pa r t or pa r t s thereof a n d for invest ing t he proceeds of any sale or sales thereof in t h e pu rchase of any other l ands or he red i t aments A n d whereas t h e said J o h n

H o s k i n g and M a r t h a Eoxlowe his wife are both still l iving and the r e

is issue of the i r mar r i age two chi ldren only t ha t is to say two daugh te r s

both of whom are infants unde r t he age of twenty-one years A n d whereas t h e lands comprised in t h e said inden tu re of se t t lement have; been for m a n y years pas t rendered available as a fa rming a n d graz ing es tabl i shment u n d e r t he m a n a g e m e n t of J o h n H o s k i n g t he husband

of t h e said M a r t h a Eoxlowe H o s k i n g conjointly wi th adjacent lands

belonging to t he said J o h n H o s k i n g and which have h i the r to formed toge ther the rewi th one consolidated p roper ty unde r the designat ion of t h e Eoxlowe E s t a t e A n d whereas t he said lands comprised in t h e said se t t lement and those belonging to t he said J o h n H o s k i n g are so connected as to be of m u c h greater va lue as a whole t h a n in dist inct por t ions a n d are also great ly dependent on personal m a n a g e m e n t for

yielding a profitable r e t u r n A n d whereas t h e said J o h n H o s k i n g

being about to re l inquish t h e act ive m a n a g e m e n t of t h e said proper ty

has de te rmined to sell his own por t ion thereof A n d whereas a separate sale of his por t ion thereof Avould great ly deter iorate t h e value of t h e sett led por t ion and would render t he cont inuance thereof as an inves tment of t r u s t p roper ty far less advantageous t h a n could be obtained t h r o u g h t he exercise of t h e powers of sale and exchange usua l in se t t lements of rea l estate A n d whereas t h e said M a r t h a Eox­

lowe H o s k i n g is ent i t led for he r separate use and subject to he r own

absolute control and appo in tmen t t o o ther p roper ty of m u c h grea te r pecuniary value t h a n t h e proper ty comprised in the said reci ted settle­ m e n t and is wil l ing to subs t i tu te t h e same by Avay of exchange; for t h e lands comprised in t he said se t t lement in order t h a t the las t -ment ioned lands m a y be more advantageously disposed of in connect ion wi th t h e said land of t h e said J o h n H o s k i n g adjacent the re to A n d Avhereas the re is good reason to belieA'e t h a t t he A'esting in t he said Trustees of power to effect such sale subs t i tu t ion or exchange will be great ly for the adA'antage of all par t ies in teres ted in t he t ru s t s of t he said inden­ t u r e of se t t l ement and it is therefore expedient t h a t the same be sanct ioned by legislative au thor i ty Be i t therefore enacted by t h e Queen ' s Mos t Exce l len t Majesty by and wi th the advice and consent

of t he Legis la t ive Counci l and Legislat ive Assembly of N e w South
Wales in Baidiament assembled and by the au thor i ty of the same as
follows—

1. I t shall be lawful for the said Eranc is Mi tche l l and Eranc i s Clarke or t he survivor of t h e m or o ther the Trus tees or Trus tee for the; t ime be ing of the said inden tu re wi th t h e consent in Avriting of t h e said M a r t h a EoxloAve H o s k i n g dur ing her life and after her decease; a n d du r ing the minor i ty of any person or persons by the said inden­ t u r e of se t t lement made t enan t in ta i l of the he red i t amen t s thereby gran ted and released a t t h e discretion of the Trus tee or Trus tees for the t ime being of the said inden tu re to dispose of and convey ei ther by way of absolute sale or in exchange for other lands the Avhole or a n y p a r t or pa r t s of the said he red i t amen t s e i ther by public; auc t ion or pr iva te contract and ei ther in one lot or in several lots and subject or n o t a t the i r or his absolute discretion to any special condi t ions

or s t ipula t ions as to t i t le evidence of t i t le expense; compensat ion

indemni ty arbi t ra t ion pos tponement of paymen t of and secur i ty for purchase money or othennvise wi th power for t h e m or him to b u y in the said he red i t ament at any auct ion or auct ions or to rescind abandon

or

or vary any cont rac t for sale or exchange and to resell any heredi ta­ men t s bough t in or as to which any cont rac t shall be rescinded or abandoned wi thou t be ing answerable for any loss to be occasioned the reby and to convey and t ransfer t h e same to t h e purchaser or respective purchasers thereof or person or respective persons t a k i n g t h e same in exchange freed and discharged from the t ru s t s created and declared by t h e said inden tu re and the receipt or receipts in wr i t ing of t he said F ranc i s Mi tche l l and Franc i s Clarke and the survivor of t h e m or o ther the Trus tees or Trus tee for t he t ime being of t he said inden­ t u r e shall absolute ly discharge t he purchase r or purchasers of tin; said he red i t amen t s or any p a r t or pa r t s thereof for t h e purchase money payable by h im or t h e m respectively and shall exonerate h im or t h e m from seeing to t h e applicat ion of t h e said purchase money or moneys and from all l iabil i ty as to the misappl icat ion or nonappl ica t ion

thereof.

2. I t shall be lawful for the said F ranc i s Mi tche l l and Franc i s

Clarke or t h e survivor of t h e m or o ther t he Trus tees or Trus tee for t h e t i m e be ing of t h e said i nden tu re Avith such consent as aforesaid to invest t h e moneys to arise; from such sale or sales in the purchase of any freehold messuages lands t enements or he red i t ament s in t h e said Colony and to cause t h e same when so purchased to be conveyed and assured u n t o a n d to t h e use of t he said Franc i s Mi tche l l and F r a n c i s Clarke or t he survivor of t h e m or other t h e Trus tees or Trus tee for t he t ime be ing of t h e said i nden tu re the i r heirs and assigns to be held by t h e m or h i m upon t r u s t a t any t ime or t imes wi th such consent as aforesaid to sell and absolutely dispose of t he whole; or any p a r t or pa r t s of t he said he red i t ament s in t he m a n n e r a n d wi th t h e several

powers anel au thor i t ies hereinbefore provided.

3. I n case any of t he lands and hered i taments to he purohased or taken in exchange as aforesaid shall be purchased or take;n in exchange from the said M a r t h a Foxlowe H o s k i n g being pa r t s of her separate; es ta te as aforesaid t h e sufficiency of the value of t he proper ty shall be referred to t he Mas t e r in Ecpiity for t he t ime be ing of the 1 Supremo Cour t of N e w South W a l e s whose de te rmina t ion in th is behalf certified unde r his hanel shall be a sufficient au thor i ty to t h e said Trus tees or Trus tee te> eifect a sale or exchange in conformity the rewi th .

I. The said F ranc i s Mitchel l and F r a n c i s Clarke or t h e survivor

of t h e m or either t h e Trus tees or Trus tee for t he t ime be ing of tin; said inelenture shall hold the said hered i taments so to be purchased or

t a k e n in exchange a n d the; r en t s issues and profits thereof in the

m e a n t ime un t i l t h e sale thereof and the money to arise from such sales upon and subject to such of t he several t r u s t s provisoes anel direct ions of t he saiel i nden tu re e)f se t t lement as shall be; then

subsis t ing or capable of t ak ing effect.

5. I n c i t ing th is Ac t in any i n s t r u m e n t document or o ther

proceeding it shall he sufficient to use1 the 1 expression " Hosk ing ' s

Trus t A c t , "

4 E A n