Paton's Settlement Act of 1900 (NSW)

Actj 1900.

Paton’s Settlement.

P atom’s

An Act to authorise and enable the trustee or trustees for the time being of a cer- Settlement.

—

tain indenture of settlem ent bearing date the tw enty-second day of November, one thousand eight hundred and sixty-one, made between Theophilus Paton of the first part, Mary Ann Paton (then Mary Ann Allison) of the second part, and the Keverend John Dunmore Lang and Pobert W atson of the th ird p a r t ; and under a certain instrum ent of transfer under tlie Peal Property Act dated the fifth day of November, one thousand eight hundred and n inety-four; and under a certain declaration of tru st dated the twenty- second day of April, one thousand eight hundred and ninety-five, under the hands and seals of H enry E llio tt and Andrew Fenwick, to obtain paym ent out of Court of certain money now standing to the credit of the said tru s t estate in the Supreme Court of New South Wales, in its equitable ju risd ic tio n ; and to provide for m aking certain payments th e re o u t; and for the investm ent of the balance th e re o f; and to declare and deter­ mine the trusts th e reo f; and to provide for the ultim ate distribution thereof; and for other purposes. [5th November, 1900.]

T T T H EEEA S in and previously to the year one tliousand eight Preamble.

VV hundred and sixty-one Theo])hilus Paton of Sydney, in the Colony of New South Wales, was seised of or well entitled to the equity of retleinption in and to certain lands, tenements, and hereditaments,

moie

Act ̂ 1900.

Baton’s Settlement.

more particularly described in Schedule A to this Act, subject to a mort­ gage over the said lands, tenements, and hereditaments to Adolphus William Young, to secure the payment of the sum of one thousand pounds and interest: And whereas by an indenture of marriage settlement, dated the twenty-second day of November, one thousand eight hundred and sixty-one, made between the said Theophilus Paton of the first part, Mary Ann Paton (then Mary Ann Allison) of the second part, and the Reverend John Dunmore Lang and Robert Watson, trustees, of the third part, the said lands, tenements, and hereditaments were conveyed to the said trustees subject to the said mortgage upon trust from and after the solemnisation of the marriage between the said Theophilus Paton and Mary Ann Paton, which took place on the twenty-sixth day of November, one thousand eight hundred and sixty-one, to receive the rents, profits, and proceeds thereof and to pay the same to the said Mary Ann Paton during her life for her sole and separate use, without power of anticipation, subject to her maintaining and educating thereout every child of the said marriage, and on the decease of the said Mary Ann Paton to pay the said rents, proceeds, and profits to the said Theophilus Paton for his life, and from and after his decease to apply the said rents, profits, and proceeds to the support, maintenance, and education of every such child of the said marriage until the youngest child should attain the age of twenty-one years, or being a daughter should m arry under that age; and upon that complete event, upon trust, to sell and dispose of the said land, and to divide and pay over the proceeds equally share and share alike to between and among such children then living, and the child or the children per stirpes of any of such children who might have died leaving lawful issue: And whereas there were issue of the said marriage eleven children and no more, namely:—Theophilus Janies Paton, Claude Stephen Paton, George K err Paton, Maude Helen Elliott (formerly Maude Helen Paton),now the wife of JamesAugustus Elliott, of Rockhampton, Queensland, Ernest David Paton, and A rthur Lang Paton (hereinafter called “ the adult beneficiaries,” ) and Eva Gertrude Paton, Herbert Sejitimus Paton, and John Robert Paton (hereinafter called “ the infant beneficiaries,” ) the last three being infants who are now living, and Bertha Alice Paton, born in the year one thousand eight hundred and seventy-six, and died in January, one thousand eight hun­ dred and seventy-eight, aged about eighteen months, and John Dunmore Paton, born in April, one thousand eight hundred and seventy-eight, and died in October, one thousand eight hundred and seventy-eight: And whereas the said Reverend John Dunmore Lang died in the year one thousand eight hundred and seventy-eight, and by a deed dated the fifteenth day of February, one thousand eight hundred and eighty-three, the said Mary Ann Paton appointed the said Theophilus Paton a trustee in his place and stead under and by virtue of a power contained in the said settlem ent: And whereas the said Robert Watson died on the fifth

day

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Paton’s Settlement.

day of August, one thousand eight liundred and ninety-three, and by an indenture dated the fifth day of November, one thousand eight hundred and ninety-four, and made l)et\veen the said Theophilus Paton, of tlie first part, the said Mary Ann Paton of the seeond part, and ilen iy Elliott and Andrew Fenwick of the third part, the said parties of the third part were duly appointed trustees of the said settlement undei' and by virtue of a ]>ower contained in the said settlement in the ])lace and stead of the said Keverend dohn Dunmore Dang, the said Kobert Watson, and the said Tbeo])hilus Paton: And whereas on or about the third day of Septemb('r, in the year one thousand eight hundred and eighty-one, the said moi'tgage to the said Adoli)hus William Young was discharged, and the said lands, tenements, and liereditaments were reconveyed to, and the legal estiite in the same became vested in, the said Theo))hilus Paton for an estate in fee sim))le: And whereas in or about the year one thousand eight hundred and seventy-nine, the said Theophilus Paton. by virtue ol' his said estate in the said lands, acciuired uncter tlu‘ Ibud Projiei-ty Act the water frontage to Darling Harbour and certain lands below high-water mark, and obtained a grant thereof in Ids own luuue, dated the twenty-second day of iUarch, one thousand eight hundrcHl and eighty, volume four hiindi’(*d and ninety-three, folio two hundred and forty-two, the said lands, hercunafter calh'd the reclamation area, are more ])articularly described In Schedule B to this Act: xVnd whereas the said Theo])hilus Paton subseciuently mortgaged the said reclamation area, and afterwards by a memoi'andum of transfei' dated the fifth day of November, one thousand eight hundred and nimby-four, the said Theo])liilus Paton transferred the said reclamation area to the said Henry Elliott and the said Andrew Fenwick, subject to the said mort­ gage: And wluM'eas the said Heni y Elliott and Andrew Fenwick e\(‘cuted a d<‘clai-ation of trust, dated the twenty-second day of A])ril, one thousand eight hundred and ninety-five, dechai'ing that they lield the said reclamation area upon the trusts of the said marriage settlement: And whereas the said b'heophilus Paton, but without disclosing the said settlement. subsec|uently mortgaged the said setthal land desci'ibed in Schedule A hereto to i-aise money to effect im])rovements on tin' said lands and tlie said reclamation area, and the value of the said land was greatly enhanced by the said expenditure: And whereas tlie legal (“state in the said lands described in the Schedule A thereby bc'came vested in the said mortgagees: And whereas dis])utes subsequently arose as to the res])(“ctive priorities of the said mentioned mortgage and the said marriage settlement: And whereas the said disputes were com])i-o- mised in themanner following, that is to say, bythe said Mary Ann Paton insuring lu‘r life for the benefit of the said mortgagees, and by their conveying the said lands described in the said Sc'hedule A for all their rigid, title, and interest therein to the said adult beneficiaries, their heirs and assigns, as tenants in common during but subject to tlu‘ life

estate

48 Act, 1900.

Paton’s Settlement.

estate of the said Mary Ann Paton, limited by the said settlement of the twenty-second day of November, one thousand eight hundred and sixty- one, and after the death of both of them, the said Mary Ann Paton and Theophilus Paton, to the use of the trustees for the time being of the said settlement, and their heirs, upon the trusts declared by the said settlement, or such and so many of them as should be then subsisting and capable of taking effect; and further, by the said adult beneficiaries mortgaging their respective interests under the said settlement and the last-mentioned conveyance liack to the mortgagees aforesaid for the sum of two thousand seven hundred and fifty pounds, payable on the first day of October, one thousand nine hundred and five, with interest at the rate of four pounds per centum per annum until paym ent: And whereas the said Mary Ann Paton joined in the last-mentioned mortgage for the purpose of guaranteeing the payment of interest in the said sums of money, and of chai’ging, so far as she legally might, her life interest in the said settled lands: And whereas the effect of the said various indentures hereinbefore recited is to make the interests of the said adult and infant beneficiaries contingent upon their surviving the said Theo­ philus Paton and the said Mary Ann P a to n : And whereas the said reclamation area adjoining the said lands originally mortgaged to the said mortgagees was at the time of the sale hereinafter mentioned mortgaged to one Jane Foreman, to secure the repayment of the sum of one thousand pounds and interest at the rate of six pounds per centum per annum: And whereas on or about the twenty-fifth day of November, one thousand eight hundred and ninety-eight, the said Mary Ann Paton, the said Claude Stephen Paton, the said George K err Paton, the said Maude Helen Paton (now Maude Ellen Elliott), and the said A rthur Lang Paton, under and by virtue of the Conveyancing and Law of Property Act, 1898, and the Married W omen’s Property Act, 1893, presented their petition to the Honorable Archibald Henry Simp- on, Esquire, Chief Justice in Equity of the Supreme Court of New South W ales: And whereas, upon the fourteenth day of December, in the year one thousand eight hundred and ninety-eight, the said Chief Judge in Equity did duly order upon the said petition that the Court, being of opinion that it was proper and consistent with a due regard for the interests of all parties entitled under the said indenture, a sale should be authorised of the lands and hereditaments situated in the parish of Saint Phillip, in the county of Cumberland, and Colony of New South Wales, being the land referred to in Schedules A and B to this Act, and being the settled estates subject to the trusts of the said indentures of settlement; and it appearing to the Court to be for the benefit of the said Mary Ann Paton that, notwithstanding the restrain t against anticipation imposed by the said indenture of settlement, the said estates should be sold out of Court, and the proceeds thereof applied as hereinafter appears, it was ordered that the said estate be sold and conveyed in the manner and on

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Paton’s Settlement.

the terms and subject to the (‘onditions in the said order appearing free from the said mortgages; and it was further ordered that the said trustees, out of the ])roe(‘eds of such sale when the same should be reeeiv<‘d by them, should retain and ])ay to tlie said Jane Foreman what slionid apjH'ar due to Iku' on account of iirincipal and interest, and any costs incurred by her in conseipieiu'e of any default by the mortgagors under tlie said memorandum of mortgage without prejudice to any rights the said infant petitioners might have against the trustees of the said settlement in resjiect of the said mortgage; and it was further ordered that tlie costs as between solicitor and client of all ])ai'ties to the said a])]ilication and the said order, including the costs, charges, and ex])enses of and incidental to the said sale and discharge of the said mortgages, should he taxed by the Master in Fipiity, and that the same when so taxed should lu' jiaid by the said trustees to the said jiarties or their res])ective solicitors, and after such jiayments as aforesaid the balance of such jiroceeds should he ]>aid into Court to the criulit of the said mattm-; and it was lastly ordered that the restraint against antici]iation so I'emovi'd as aforesaid should attach to the said balance so ]>aid into Court as thereinbefore ordered; And whereas the said lands described in Schedules A and B hereto were duly sold under and by virtue of the said orch'r, and realised the sum of seven thousand one hundred ])ounds, and the said trustees received the purchase money, and thereout jiaid olf the said mortgage to the said Jane Foreman, and all interest and costs in conneidion therewith, and paid the costs of the said ]ietition and order. And on the first day of June, one thousand eight hundred and ninety-nine, the said trustees ]iaid into (Vmrt, to the ci'edit of the Master in E()uity to the account of the hereinbefore mentioned matter, the sum of five thousand five hundred and seventy-eight pounds sixteen shillings and six])ence, being the balance of the said jnirchase money remaining in tluMV hands after such jiayment as afori'said: And whereas the said Theoiihilus James Paton secpiestrated his estate on or about the twenty- sixth day of May, one thousand eight hundred and ninety-nine, and Norman Frederick (Jiblin was duly ajiiiointed his official assignee: And whenuis a sum of two thousand seven hundred and fifty })ounds is now due and owing to Douglas Hamilton Maid^ean in resjiect of the said mortgage made by the said adult lieneficharies: And whereas the said adult beneficiaries, and the said Mary Ann Paton, and the said official assignee are willing that the sum of two thousand pounds should be ))aid off out of the said sum of five thousand five hundred and seventy-eight imunds sixteen shillings and sixpence, and that the balance thereof should he settled in such a manner as to give the said infant bene­ ficiaries absolutely vested estates in their respective projiortionate ]mrts of the balance remaining of the said sum after paying the said sum of two thousand jiounds to the said Douglas Hamilton MacLean, subject, however, to the life estate of the said Mary Aim Paton, and have con­

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Paton’s Settlement.

tracted and agreed accordingly: And whereas the said Douglas Hamilton MacLean has agreed to accept the said sum of two thousand pounds so to be paid as aforesaid in full satisfaction and discharge of the said mortgage of two thousand seven hundred and fifty pounds: And whereas it is just and expedient that the said contract and agreement should be carried into effect, and it is impossible to do so without obtaining the sanction of Parliam ent thei’eto: Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliam ent assembled, and by the authority of the same, as follows:—

Interpretation. j j j construing this Act, the following words shall have the

meanings herein assigned to them, unless the context otherwise

requires:—

“ P a to n ’s settlement ” shall mean and include the indenture of settlement of the twenty-second day of Xovember, one thousand eight hundred and sixty-one; the instrument of transfer under the Real Property Act, dated the fifth day of November, one thousand eight hundred and ninety-four; and the declaration of trust, dated the twenty-second day of April, one thousand eight hundred and ninety-five, hereinbefore mentioned.

“ The said trustees ” .shall mean the trustee or trustees for the

time being of P aton’s settlement.

“ The settled fund ” shall mean the sum of five thousand five hundred and seventy-eight pounds sixteen shillings and sixpence now in Court standing to the credit of an account intituled, “ In the m atter of the estates settled by Theophilus Paton by indenture dated the twenty-second day of November, one thousand eight hundred and sixty-one, and by an instrument of transfer under the Real Property Act, dated the fifth daj' of November, one thousand eight hundred and ninety-four, and by a declaration of trust dated the twenty-second day of April, one thousand eight hundred and ninety-five, situated in the parish of Saint Phillip, in the county of Cumberland, and Colony of New South W ales; ” “ And in the m atter of the Conveyancing !ind Law of Property Act, 1898; ” and in the m atter of the “ M arried AVomen’s Property Act, 1893,” together with all interest thereon, or the balance remaining after making there­

. out the payments hereinafter authorised, and shall be taken to include all investments Iw which the said balance may from time to time be represented.

2.               I t shall be lawful for the Supreme Court, in its equitable ju ris­

diction, on the application of the said trustees, to order payment out of

the

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Paton’s Settlement.

the settled fund of the sum of two thousand pounds to Douglas Hamilton MacLean, or his assigns, in full satisfaction and discharge of his said mortgage.

3.              The said Douglas Hamilton MacLean, or liis assigns, shall

accept the said sum of two thousand pounds in full satisfaction and discharge of all liis claim, demand, chai’ge, lien, and security against, over, to, and upon the said sum of five thousand five hundred and seventy-eight pounds sixteen shillings and sixpence, now in Court as aforesaid, and against, over, to, and upon the individual shares of the beneficiaries therein, and of all their claim and demand against the said Mary Ann Paton and the said individual beneficiaries and tlu'ir res])ec- tive estates under the covenants in the said mortgage liei'einhefore mentioned, and otherwise in resjiec't thereof; and upon such payment being made to the said Douglas Hamilton iMacLean, or his assigns, all su(*h (‘laims, demands, charges, liens, and securities of the said Douglas Hamilton iMaduum, or his assigns, against, over, and to the said sum of five thousand five liuudi'od and seventy-eight ])ounds sixteen shillings and sixpence, and tlu' sliai'(‘s of individual beneficiari(‘s tlu'rein, and against the said Mary Ann Paton and the said individual bene­ ficiaries and their res])ective estates, shall cease and determine accord­ ingly. And the said Douglas Hamilton iMacLean, or his assigns, shall deliver up to the said trustees the said mortgage duly discharged, and all documents in his possession or power relating thereto.

4. It shall be lawful for the Supreme Court, in its equitable jurisdiction, from time to time on the application of the said trustees, with tlie consent of the said Mary Ann Paton during her life, to direct ])ayment out of Court of the said settled fund, or any part thereof, to the said trustees for investment by them on any investments authorised for trust funds by the Su])reme Court of New South Wales, and the said trustees shall have ])ower out of such funds to defi’ay all necessary costs and ex])enses occasioned by such investments, and H-om time to time to vary the said investments for others of a like character.

5. The income of the balance of the said settled fund shall be paid to the said Mary Ann Paton during her life for her separate use, without ])ower of anticipation, and u])on her death the said balance of the said fund shall be converted into money and the proceeds divided in (Hiual shares amongst and between Norman Frederick Giblin, as such official assignee as aforesaid, the said Claude Stephen Paton, the said George K err Paton, the said Maude Helen Paton (now Maude Helen Elliott), the said Ernest David Paton, the said A rthur Lang Paton, the said Eva Gertrude Paton, the said Herbert Septimus Paton, and the said John Eobert Paton, and such shares shall be absolutely vested in them.

6. The said Eva Gertrude Paton, Herbert Septimus Paton, and John Kobert Paton, and their respective executors, adftiiiiisH’ators, and

■ assigns,

Act, 1900.

Paton’s Settlement.

assigns, shall accept the shares coming to them in the said settled fund under the provisions of this Act in full satisfaction and discharge of any money or share which, but for the passing of this Act, might have come or been due to them under P a ton ’s settlement, and in full satisfaction and discharge of anj^ right of a<‘tion, claim, or demand which they may have, or might have had, against the trustee or trustees of P a to n ’s settlements in respect of any of the trusts therein contained.

7.               This Act may be cited as the “ P aton’s Settlement Act of

1900.”

SCHEDULES.

S C H E D U L E A. ̂ '

All th a t parcel of land containing- by adm easurem ent one rood and th irty -four perches, and situated in the town of Sydney, parish of S a in t P h illip , county of Cum ber­ land, and Colony of New South Wales, allotm ent num ber three of section num ber ninety-three, bounded on the south by allotm ent num ber two bearing east eleven degrees forty-five m inutes north four hundred and forty links; on the east by Kent- stroet N orth bearing north fifteen degrees %vest one hundred and eight and a half links; on the north by allotm ent num ber four bearing west th irteen degrees th irty m inutes south ninety-six links, then west ten degrees fifteen m inutes south three hundred and fifteen links; and on the west by the high-water m ark of D arling H arbour.

S C H E D U L E B.

T hat piece of land situated a t D arling H arbour, in the city of Sydney, jiarish of S a in t Phillip , and county of Cum berland, containing seventeen porches or thereabouts, as shown on the plan hereon and therein edged w ith dotted lines, and delineated in the public map of the said city deposited in the ofiice of the Surveyor-General as originally granted to Theophilus P aton by Crown gran t, dated the twenty-second day of March, one thousand eight hundred and eighty, registered in the Land T itles Office, Sydney, volume four hundred and ninety-three, folio two hundred and forty-two.

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