Thomson's Marriage Settlement Act 1849 No tms (NSW)

T homson's

Mahkiagk	An Act for defining the powers of the Trustees or Trustee for the time being of the Settlement made on the Marriage of the Honorable Edward Deas Thomson w ith Anne Maria his Avife and for giving better effect to Sales and Exchanges made and to be made pursuant thereto and for other purposes. \2\tli Sep­ tember, 1849.]
S jottlemhnt.

Preamble. IIER EA S by an indenture bearing date on or about the seven- thirty-three made Ix'tween llichard Bourke a Alajor-General in the Britisli Army and Governor-in-Chief of the territory of New South W ales of the tirst ])art Edward Dius Thomson Esquire of the second part Anne M aria Bourke daughter of tlie said llichard Bourke of the YV tecntli day of September one thousand eight hundred and

third

1849. 13" VIC. 143

Thomson's Marriage Settlement.

th ird part and the Honorable W illiam Westhrooke B urton one of tlu; dudi^es of the Supreme Court of New South W ales and Georgt; Maeleay Esquire of ilu' fourth part (l)eing a settlem ent made in eontemplation oi' a mai'riagc; tlien intended and afterwards had and solemnized ludAveen tin; said Edward Heas Thomson and Aniui M aria Bourke) eertain lands and hercalitaments were eonveyed and assured unto the said AVilliam "Westhrooke Burton and George Macdeay and their heirs to the uses upon tin; trusts and for the intents and purposes thereby deelarcd And whereas by the said indenture (;ertain powers of sale and exchange and other powers and authorities arc eonfem 'd upon the said "William. Westhrooke Burton and George Maeleay and the survivor of them and the heirs of the survivor And whereas h_y tin; same indenture it is provided tha t in ease the said W illiam West- brooke Burton and George Maeleay or any future Trustee should die or he desirous of heing discharged from tlie trusts thereby created oi- should neglect or refuse to act in tin? said trusts at any time before tlu'y should he fully perfornu'd it should lawful for the said Edward Hcias Thomson and Anne; M aria Bourke and for the survivor of them and the heirs and executors of such survivor with the consent of tlie surviving or continuing Trustee to nominate or appoint any otlu'r [lerson to he a Trustee or Trustees in the place and stead of them the said W illiam MAsthrooke Burton and George Maeleay or either of them or such future Trustee or Trustees as should happen to die or he desirous of heing discharged from or neglect or refuse to act in the trusts afore­ said and upon such nomination or appointm ent tha t the Trustees or Trustee for the time being or the heirs or exeimtors of the surviving Trustee should release convey surrender transfer and assure all and singular the said tru s t estate in such m anner as th a t the same m ight he vested in the surviving or continuing Trustee or Trustees and the person or jiersons who should he a])pointed to he a new Trustee or Trustees upon the same trusts and for the same purposes as are in tin; said settlem ent mentioned and declared of and concerning the same or to for and upon such of the uses trusts intents and purposes as according to the event and existence of persons should he then subsisting or capable of taking clfeiit which person or persons so to he appointed a Trustee or Trustees as aforesaid it was thereby declared shoidd and m ight from thenccfort]i act in the management and execution of the aforesaid trusts or such of them as should he then subsisting or capable of taking eifect as fully and edectually in all respects and w ith the like indemnilication as he or they m ight have done in case he or they had been originally appointed a Trustee or Trustees for the purposes afore­ said And whereas in exercise of the said power of appointing m;w Trustc(;s in the stead of retii’ing Trustees divc;rs appointments have from tim e to time been made and by virtue of the last of such ap])ointmcnts G(;orgc Kenyon Holden of the city of Sydney aforesaid solicitor and "William Maepherson of Sydney aforesaid Clerk of the Legislative; Council arc now the Trustees of the said indenture And whereas doubts have arisen whether the language of the said indenture with respect to the powers of sale and exchange and other the; powers and authoriti(;s therc'hy granted to and exercisable by the said "William Westln-ooke Burton and George Maeleay and the survivor of them and the heirs of the survivor is according to strict and legal construction sufficient to include the said George Kenyon Holden and W illiam Maepherson and the Trustees or Trustee for the time heing of the said settlement so as tha t the said ])owers may he exercised by the said George Ki;nyon Holden and "VVilliam Maepherson or by the said Trustees or Trustee And whereas the power to the Trustees or Trustee of giving linal receipts and dis­ charges to purchasers and others as usual in settlements of the like

jiature

144 13̂ ̂ VIC. 1849.

Thomson's Marr'iage Settlement.

nature is not sufficiently expressed in the said settlement And whereas the intentions of the parties to the said indenture and the advantages to accrue from the said settlement to the parties henefieially interested therein will be defeated or greatly diminished unless the doubts sul)- sisting as to the powers of the Trustees or Trustee for the time heing

All powers conferred of tlie Said indenture in the m atters aforesaid he removed Be it there-

dated TfthSeptem-̂ enacted by I lis Excellency tlie Governor of Nenv South W ah's

ber 1833 on the first witli tlic advicc and consent of the Legislative Council thereof That

T™\v'^BunonS°' ̂tlie jiowcrs of sale and exchange and all other the powers and authoritit's (}. Maeleay Esquire confci’rcd by the Said indcntui’c upon the said W illiam Westhrooke i°een conTixedupon Bui'ton and Gcorge Maeleay the original Trustees of the said indenture

the present and

future Trustees. shall he held and construed to he and to have been conferred upon and transferred or transferable to the said Gcorge Kenyon Holden and W illiam Maepherson and other the Trustees or Trustee past or fu ture of the said indenture and shall and may be and he considered to have been exercised in like m anner as if the words “ or the Trustees or Trustee for the time heing ” had been inserted throughout the said indenture after the names of the said M^illiam "Westhrooke Burton and George Maeleay instead of or in addition to the words “ or the survivor of them or the heirs of the survivor ” and as if in and liy the said recited provision for the appointm ent of new Trustees the right to exercise the said poAvers and authorities had been in express term s declared to he transferred together Avith the right of acting in the trusts of the said indenture and that every or any receipt in Avriting given by the said "William "Westhrooke B urton and Gcorge Maeleay or either of them or by the said Gcorge Kenyon Holden and W illiam Maepherson or either of them or given or Avhich shall he given by any other the Trustees or Trustee for the time being of the said indenture AAdiile acting in the trusts thereof to any purchaser or other person who shall have paid or shall pay any moneys to tlie said "William Westhrooke B urton and George Maeleay or the said George Kenyon Holden and M^illiam Maepherson or other the said Trustees or Trustee for the time heing (past or future) of the said settlem ent shall operate as an effectual discharge for tlu! moneys therein expressed to lie receHed and to release the person paying tlie same from all responsibility as to the application or non-application thereof.

2.   And whereas dHers parts of the land comprised in the said

settlem ent are so situated as to he convertible to protitahlc account by the sale thereof in allotments for building npon divers terms as to credit for purchase money interest and security for the same and upon other conditions requiring an extension of the jiOAVcrs of Trustees to confirm and gHe legal effect to such sales And AÂ hercas it is considered th a t the proceeds of such sales or the other trust moneys from time to time in the hands of the Trustees or Trustee for th(5 time heing of the said settlem ent or a portion thereof may from time to time he advantageously expended or inAnsted in buildings or other improvements on other parts of the tru s t property or upon real or Government security in Great Britain or Ireland or in securities of the Government of New South "Wales or some other Colony or Colonics of Great Britain and the advantages to he derHed from the improved and marketable A’alue of the trust property Avill he greatly impaired unless the poAÂ ers of the Trustees or Trustee for the time being of the said settlem ent be defined and extended for the pnrposcs aforesaid

Trustees to be and otherwise as hereinafter mentioned and enacted Be it therefore

deemed to have had

and to have power toenacted That as to any land and hereditam ents part or parcel of the sell trust lands with ti’ust property to the sale of Avhich the consent in Avriting of the said

EXard^Deas" EdAAni’d Heas Thomson and Anne M aria Heas Tliomson lias been given

Thomson them or the survivor of tliem sliall at any future time he given

’ also

1849. 13" VIC. 145

Thomson’s Marriage Settlement.

also in writing as aforesaid the Trustees or Trustee for the time being shall be deemed to liave had and shall have sutficient authority to s(‘ll sueh lands and hereditaments either by public sale or private contract and either in oiu' or more parcels or allotments to any purchaser or ])urchasers to whom and for any price or prices for which the sanu; sliall have been or shall bo sold by such Trustee's or Trustee without proof ol‘ such eonsc'iit as aforesaid in I'cgard to the individual purchasi'r or purchasers price or prices or other incidents of the sale of such parcels or allotments respectively.

3. And be it enacted That it shall be lawful for the Trustees or Tnistecs niay crant

Trustee for the time being of the said settlement to allow to any pur- jmi'eillsers'of 'iauj

(‘baser or purchasers of the said land or any part or parts thereof

credit lor any number ot years not exceeding ten years tor payment ami may invest a n s t

of his or her purchase money or any part thereof upon such terms as i"'"*-

to interest or otherwise as may by the Trustees or Trustee for tlie time iK-rtiuns theieor.

being of the said settlement be deemt'd proper Provided tha t the land

sliall rem ain unconveyed or be otherwise rendered a security for the

unpaid purchase money together with interest thereon until the same

shall have been paid and further th a t either as a part of the contract

oi‘ purcliasi! or otherwise it shall be lawful for the Trustees or Trusti'i'

for the tim e lieing of the said settlement to lay out and invest any

part of the proceeds of the sale of the said land or any other land

originally comprised in the said trusts or any part of the said trust

moneys upon mortgage of the same or of any other part of the said

land to be taken from any purchaser or purchasers thereof or his her

or their heirs or assigns.

4. And be it enacted That it shall be lawful for the Trustees or Trustees may witii

Trustee for the time being of the said settlement with the consent of Kawarjtimm

the said Edward Deas Thomson and Anne M aria Deas Tliomson or the son ana .Urs. TUom-

survivor of them and after the dc'cease of the survivor at the discretion h"" ; n̂̂

of the Trustees or Trustee for the time being of the said settlement 1 o securities,

invest the moneys arising from ihc said sale or sales and all other the moneys belonging to the trusts of the said settlement cither at interest upon real semirities or upon securities of the Government of Great E ritain or of the Government of Aew South 'Wales or of any other Colony or Colonies of Great Britain or in erecting buildings or making improvc- numts or repairs in and upon unsold portions of the trust estate for the time being or upon purchase of other lands and hereditaments in ]Vew South’\Val(!s or Great Britain or Ireland as the Trustees or Trustee; lor the time being of the said settlement shall with such consent or at su(“h discretion as aforesaid think lit and tha t cither or any of the modes of investment aforesaid .shall be deemed and construed to be; e(|ually in accordance with the intent and meaning of the trusts of the said settlement. ■

5. And be it enacted That if in the conveyance or conveyance's Tnistccs may scant to any purchaser or purchasers by the Trustees or Trustee for the time stcoetâ *

heing of the said settlement of any jiart of the land mentioned a n d iiciiiicatod'’un plan, tlu'ough any strc'cts roads or ways delineated in a plan contained in oi‘ mentioned or rclerred to in sucli conveyance or conveyances siu'h purchaser oi‘ purchasers shall have and possess the same right of way in over and through such streets roads or ways (provided sueh right of way shall he over or through some part of the land mentioned and comprised in the said settlement and not otherwise sold or disposed ol') in such m anner as such purchaser or purchasers could or might have' had if the trustees or trustee for the time being of the said settlcim 'iit were tlu'msclvcs the absolute owners of the soil of the said streets roads or ways in their oŵ n right and had granted the said right of way

comprised in the said settlement the Trustees or Trustee for the time

T

146 13° VIC. 1849.

Sydney Railway Company.

in and over sucli streets roads or ways and tha t none of the trusts or uses of the said settlement shall thereafter prevail against any such righ t of way as aforesaid.

TOnvcyancL &c'̂ onactcd That aU conveyances receipts or other already executed by ucts and dccds of the present or any former Trustee or Trustees of the Ti™tLT said settlem ent already executed given or done in relation to the trusts

of the said settlement shall have as full force and effect as if the same

had been executed given or done after the passing of this Act.

This Act to be 7. And he it enacted That this Act shall be deemed to he a w ithout being specially pleaded.

deemed a public Act. shall be judicially taken notice of as such in all cases