Macken Estate Act 1910 (NSW)

An Act to enable the executors and the trus tees

for the t ime b e i n g of the wi l l of J a m e s

J o s e p h Macken to i n v e s t certain m o n e y s

b e l o n g i n g to the estate of the said flames J o s e p h Macken in the purchase of shares in "Mark Foy's , Limited," and to retain the shares so purchased as i n v e s t m e n t s of the

funds of the said estate ; to e x t e n d the

powers of i n v e s t m e n t conferred by the said

wi l l upon the said t r u s t e e s ; and for other

purposes . [19th August, 1910.]

WH E R E A S N e w Sou th Wales , draper , now deceased, duly made his last

J a m e s Joseph M a c k e n of Sydney, in t he Sta te of

wil l and t e s t amen t , hea r ing date t he n i n t h	day of Apri l , one	thousand
e ight hundred	a n d n ine ty-one , w h e r e b y he devised a n d bequea thed	all

his rea l and personal estate u n t o his wife, Al ice M a c k e n , and M a r k

Foy, his brother- in- law, the i r heirs , executors , adminis t ra tors , and assigns, upon t rus t tha t his said wife and the said M a r k Foy, or t he survivor of t hem, or t he heirs , executors , or adminis t ra tors of such survivor , or o the r t he t rus tees or t rus tee for t h e t ime being of t h a t his will ( thereinaf ter and hereinaf ter referred to as t h e said t rus tees or t rus tee) should a t such t ime and, in such m a n n e r as his said t rus tees or t rus tee should in their , his, or her absolute discret ion t h i n k fit, sell, call in, and convert in to money t h e same or such pa r t thereof as should not consist of m o n e y ; a n d should, ou t of the money produced thereby, and out of such par t of his personal es ta te as should consist of money, pay all his j u s t debts , funera l and t e s t a m e n t a r y expenses, and legacies, and should invest t he residue of t he said moneys in some or one of the modes of i nves tmen t thereinaf ter author ised , wi th power for his t rus tees or t rus tee from t i m e to t ime a t the i r discretion to vary t h e said inves tments for others of t h e same or a l ike n a t u r e , and should s tand possessed of t he said res iduary t r u s t moneys and the inves tments for

for the t ime being represen t ing the same ( thereinaf ter called " t h e res iduary t rus t funds ") upon t ru s t to pay to his wife the rents , profits, and income thereof un t i l his younges t child should a t t a in the age of twenty-one years, for the ma in t enance a n d suppor t of herself and the ma in t enance , educat ion, and suppor t of his chi ldren, or such of t h e m as should be l iving ; and so soon as his younges t chi ld w ho should be l iv ing should a t ta in the age of twen ty -one years, t h e n in t r u s t to divide the same equal ly be tween his said wife and all his chi ldren, or such of t h e m as should t hen be l iving, share and share al ike as t enan t s in common : A n d the said testator thereby provided t h a t if any child of his should die in his lifetime or before his younges t chi ld should have a t ta ined the age of twenty-one years, leaving a child or chi ldren who should survive t he tes ta tor and, be ing a son or sons, should a t t a in the age of twenty-one years , or be ing a daugh te r or daugh te r s should a t ta in t h a t age or mar ry , t hen the las t -ment ioned child or chi ldren should t ake (and if more t han one, equal ly be tween them) t h e share which his or her or the i r pa ren t would have t aken if such pa ren t had survived t h e tes ta tor a n d lived t i l l his younges t child had a t t a ined the age of twenty-one years, and the tes ta tor the reby declared t h a t in the event of the death of his said wife before his younges t child should have a t ta ined t h e age of twenty-one years , then his t rus tees or t rus tee m i g h t apply the whole or any pa r t of t he income of the expec tan t share of any of his chi ldren or g randch i ld ren towards his or her ma in tenance and educat ion wi th l iber ty to pay t h e same to t he guard ian of such child or grandchi ld for t he purpose aforesaid: A n d the tes ta tor thereby declared t ha t all moneys l iable to be invested unde r tha t his will m i g h t e i ther be re ta ined in t h e s ta te of inves tment in which they were a t the t ime of his decease, or m i g h t be invested by p lac ing the same on fixed deposit in t he B a n k of New South Wales , the Commercia l Bank ing Company of Sydney, or t h e Un ion B a n k of Aust ra l ia , or on mor tgage of freehold propert ies in any of t he

Aus t ra l i an Colonies : And the tes ta tor the reby declared t h a t his

t rus tees or t rus tee m i g h t postpone the sale and conversion of	his real
and personal estate or any par t thereof for so long as they , he , or she

should t h i n k f i t : A n d the said tes ta tor the reby appointed his said wife du r ing her life, and after he r decease, t h e said M a r k Boy the guard ian of his infant children : A n d whereas the said .James Joseph Macken died on t h e four th day of September , one thousand nine hundred and e ight , w i thou t having revoked or al tered his said will, probate whereof was duly gran ted by the Supreme Cour t of New South Wales in its probate jurisdict ion to t h e said Alice M a c k e n and Mark- Boy, on the second day of December , one thousand nine hund red and e i g h t : A n d whereas the said .James Joseph Macken left h i m surviving eight chi ldren and no more, namely , J a m e s Victor Macken , Marjorie Macken , H u g h Michael Macken , Noel Francis Macken , Errol l St. J o h n

Sher idan

Sheridan Macken , Nevi l le Aloysius Macken , Lorna M a r y Macken , and J o h n Chr is t ian M a c k e n : A n d of t he said e igh t chi ldren, t he two f irs t-named are over t he age of twen ty -one years , and the r ema in ing six, a re still unde r t he age of twenty-one years, and t h e younges t of t h e said chi ldren, namely , J o h n Chris t ian Macken , will a t t a in the age of twenty-one years on the t en th day of J u l y , one thousand n ine h u n d r e d a n d t w e n t y - t w o : A n d whereas al l t h e debts , funeral , a n d

t e s t amen ta ry expenses of the said J a m e s Joseph M a c k e n have now been

paid : A n d whereas the said J a m e s Joseph Macken was a t t h e said respect ive dates of his will and dea th hereinbefore ment ioned, ca r ry ing on business a t Sydney aforesaid in pa r tne r sh ip wi th t h e said M a r k Foy

a n d	F r a n c i s	Foy , H u g h	Vic tor Foy, and	K a t h l e e n	Sophie Smi th ,	as
genera l d rapers	and	outfi t ters,	impor te r s	and	manufac tu re r s ,	u n d e r

t h e style or firm of " M a r k F o y " : A n d whereas for some t ime

pr ior to t h e dea th of the said J a m e s Joseph Macken , t he said

J a m e s Joseph Macken , M a r k Foy , F ranc i s Foy, H u g h Victor Foy ,

a n d K a t h l e e n Sophie Smi th had been t a k i n g the pre l iminary steps

towards t h e conversion of t he said pa r tne r sh ip into a l imited l iabil i ty company, to be regis tered under t h e provisions of t he Companies Ac ts in force in t h e said Sta te of N e w South Wales : A n d whereas t h e scheme for such conversion inc luded the sale of t he said business to such company w h e n formed, and the consideration for t h e said sale was to be a sum of money which was to be paid and satisfied by the a l lo tment to t he pa r tne r s in t h e said business of preference and ordinary shares in t he said company all fully paid u p : A n d whereas before t he said sale was carried in to effect t he said J a m e s Joseph M a c k e n died, as hereinbefore m e n t i o n e d : A n d whereas after t h e dea th of t he said J a m e s Joseph Macken a company was duly registered in t he S ta te of New Sou th W a l e s unde r t h e n a m e of " M a r k

Foy ' s L imi t ed , " p u r s u a n t to t he provisions of t h e Companies Ac t s in

force in t h e said S t a t e : A n d whereas by agreement , dated t h e s ix teen th day of November , one thousand n ine hund red and n ine ,

m a d e be tween t h e said Franc i s Foy , M a r k Foy , H u g h Victor Foy , and	K a t h l e e n Sophie Smi th ( there inaf ter called t h e vendors) of t h e one
par t , and the said company of the o ther par t , t he said proposed scheme was duly carr ied out , and t h e said business was sold to t h e said company for t h e s u m of four h u n d r e d a n d fifty-six t housand one
h u n d r e d and forty-four pounds , which s u m was to be paid and
satisfied b y the a l lo tment and issue to t h e vendors of preference and ord inary shares all fully paid up , to be issued in t he proport ions set ou t in t h e said a g r e e m e n t : And it was thereby agreed t h a t t h e c o m p a n y should satisfy all t he liabilit ies of t he said firm and t h e vendors , i nc lud ing t h e a m o u n t due by t h e said firm or the vendors to
t h e executors of t h e said J a m e s Joseph Macken , for his share of t h e
capi ta l and income of t h e said business a n d a n y in te res t t h a t m i g h t be

due

due the reon : A n d i t was the reby fu r the r agreed t h a t if t he c o m p a n y should issue to t he executors of t he will of t he said J a m e s Joseph M a c k e n shares in t h e company, e i ther in full or p a r t p a y m e n t of t h e a m o u n t due by the company to t hem, such shares should be issued upon and subject to t h e same te rms a n d condit ions as t h e shares to be issued to t h e vendors as t h e consideration for t h e sale t he reby made , b u t t h a t the company should not be bound to reserve a n y shares for a longer period t h a n twelve m o n t h s from the da te of the said a g r e e m e n t : A n d whereas t he said sale has been completed by the transfer of t h e said business, and of the assets a n d liabilit ies thereof, to t h e said company, and by the issue to t he said vendors of t h e preference a n d ordinary shares men t ioned in t h e said ag reemen t : A n d whereas t h e share of t h e said J a m e s Joseph Macken at t h e da te of his dea th in t h e said business and the goodwill thereof, and in the real and personal es ta te be longing there to , was valued a t the s u m of fifty-six thousand six h u n d r e d and fifty-four pounds fifteen shil l ings a n d elevenpence : A n d whereas the said share was at t he date of t he sale to t he said company valued a t t h e sum of sixty-five t housand seven h u n d r e d and fifty-seven pounds n ine teen shil l ings a n d t e n p e n c e : A n d whereas such las t -ment ioned s u m is now due and owing by the said business to t h e said e x e c u t o r s : A n d whereas t he said

c o m p a n y has set aside and appropr ia ted for t he purpose of

i s su ing t h e same to t h e executors of the said J a m e s Joseph M a c k e n in p a y m e n t of the a m o u n t owing by the said company to t he said executors in respect of t he share of t he said J a m e s Joseph Macken in t he said business the following shares, namely , twen ty -e igh t thousand two hund red and fifty-eight preference shares ful ly paid u p , and th i r ty-seven thousand live hund red ordinary shares fully paid u p : A n d whereas t he va lue of t he said las t -ment ioned preference a n d ordinary shares exceeds t he a m o u n t now due and owing to the said executors as aforesaid : A n d it is to t h e in teres t of all persons ent i t led unde r the will of the said J a m e s Joseph Macken t h a t the a m o u n t so owing as aforesaid should be paid by the issue to t he said executors of t h e said las t -ment ioned preference and ord inary shares r a the r t h a n by the p a y m e n t to t he said executors of the said a m o u n t

i n cash : A n d whereas t he said J a m e s Joseph M a c k e n in tended to accept as and for his in teres t in t he said business preference a n d ord inary shares in t h e said company, and in tended such shares to pass to and devolve upon his executors upon t r u s t for t he persons beneficially in teres ted unde r his said w i l l : A n d whereas by t h e t e rms of the said will the said executors have no power to invest the moneys Owing by the said firm to t he said executors in t he purchase of shares, e i ther preference or ordinary, in the said, company, nor to accept such shares in lieu of cash in p a y m e n t for the in teres t of t he said J a m e s Joseph M a c k e n in the said bus iness : A n d whereas i t is

desirable

desirable in t h e in teres ts of al l persons beneficially ent i t led unde r t h e said will t h a t the said executors should have power to accept the said shares in l ieu of cash from the said company, and t h a t the said executors should have power to invest other funds be longing to t h e said estate in t he purchase of any other shares issued by t h e said company, and to accept in lieu of the shares to be issued to them in the said company shares in any company to which the business of t he said c o m p a n y may be so ld ; and should have power to re ta in as i nves tmen t s of t h e said es ta te a n y shares to be issued to t h e m as

hereinaf ter p rovided; and should also have t he o ther powers

hereinaf ter conta ined : And whereas t he said Alice Macken , J a m e s Victor Macken , and Marjor ie Macken , the only beneficiaries unde r the said will who are over the age of twenty-one years, are satisfied t h a t t he conferr ing of such powers upon t h e said t rus tees would be in t h e best in teres ts of all persons concerned, and consent t h e r e t o : Be it therefore enacted by the K i n g ' s Most Exce l len t Majesty, by a n d w i t h t he advice and consent of the Legis la t ive Council and Legis la t ive

Assembly of N e w South Wales in P a r l i a m e n t assembled, and by the

a u t h o r i t y of t he same, as follows :—

1 . I t shall be lawful for the t rus tees or t rus tee for the t ime

be ing of t he said will of the said J a m e s Joseph Macken to accept from the said company in lieu and satisfaction of all moneys due to t h e said t rus tees by the said firm of Mark Foy and the surviving pa r tne r s thereof and the said company, or by or from any of them, a n d as full p a y m e n t for the share of t he said J a m e s J o s e p h Macken in t he said business, twen ty -e igh t thousand two hundred and fifty- e ight fully paid u p preference shares and thi r ty-seven thousand five h u n d r e d fully paid u p ordinary shares in t he said company .

2 .     I t shal l be lawful for the said t rus tees or t rus tee to re ta in

as inves tments of t he funds of the said estate t h e shares to be issued to t he said t rus tees or t rus tee in pursuance of section one hereof or any of such shares for such period or periods as t he said t rus tees or

t rus tee in the i r absolute and uncontro l led discretion may t h i n k	lit.
3 . I n the event of t h e said c o m p a n y issuing any	fur ther

shares in t he said company (whe the r such shares form pa r t of t h e or iginal six h u n d r e d thousand shares of t h e said company or of any increased capital thereof) , it shall be lawful for the said t rus tees or t rus tee with t he consent of any J u d g e of t he Supreme Court of N e w South V a l e s s i t t ing as J u d g e in E q u i t y to invest t he t r u s t funds be longing to t he said estate in the acquisi t ion from the said company of such shares and with such consent to re ta in such shares or any of them ei ther as a t empora ry or pe rmanen t i nves tmen t for such t ime or t imes and upon such t e rms and condit ions as such j u d g e

may de termine .

4 . I n t h e event of the business of t h e said company, or any

port ion thereof, be ing sold and assigned to a n y o ther company or companies (whether formed for t he purpose of acqu i r ing t he said business or not ) it shall be lawful for the said t rus tees , w i th t h e consent of a n y J u d g e of t he said Supreme Court s i t t ing as J u d g e in E q u i t y , in exchange for any shares which they m a y t h e n hold in t h e said company , to accept shares in such other c o m p a n y or companies , and wi th such consent to re ta in such shares or any of t hem, ei ther as a t empora ry or p e r m a n e n t inves tment , for such t i m e or t imes and

upon such t e rms and conditions as such J u d g e m a y de te rmine .

5 . N o t h i n g in this A c t contained shall au thor i se t h e said

t rus tees or t rus tee to accept any shares or share in any company which
arc or is not issued as fully paid u p to t he face value thereof.

6 .     The powers by this A c t conferred upon the said t rus tees or

t rus tee shall be in addi t ion to, and shall not pre judice or affect any powers, r igh t s , or privi leges which the said t rus tees or t rus tee m a y have by v i r tue of the provisions of t he said will or of any A c t of

P a r l i a m e n t or otherwise.

7 . Whereve r by th is A c t t he consent of a J u d g e of t he

Supreme Cour t s i t t ing as J u d g e in E q u i t y is r equ i red to be obta ined by t h e said t rus tees or t rus tee , such consent m a y be obta ined on appl ica t ion by way of or ig inat ing summons in accordance wi th t he provisions of t he Equ i ty Act , 1901 , or in such o ther way as such

J u d g e	m a y	de te rmine .
8 .	This Ac t may be cited as t he " M a c k e n Es ta te Act , 1910 . "