Trustees Act 1855 (SA)

No,. 7,.

AN Act to consolidate and amend the Laws relating to the Conveyance and Dansfer ?of Real and PersoleaE Property vested in Mortgayees and Dustees. L .- ---

CA4ssented to, April 2, 1856.1

W HEREAS it is expedient to consolidate, amend, and extend Preamble.

the provisions of the law relating to the conveyance and transfer of real and personal property vested in Mortgagees and Trustees in South Australia-Be it therefore Enacted, by the Governor-in-Chief of South Australia, by and with the advice and consent of the Legislative Council thereof, in manner following, that is to say:

Australia, under or by virtue of an Act of the Imperial Parliament, former Acts oonfrrmett. 1, All proceedings had and taken in the Supreme Court of South Proaeediw under

passed in the first year of the reign of His late Majesty KGg William the Fourth, intituled " An Act for amending the laws respecting conveyances and transfers of estates, and funds vested in trustees and mortgagees, and for enabling Courts of Equity to give effect to their decrees in certain cases," or under and by virtue of the power and authority of an Act of the Imperial Parliament, called " The Trustee Act of 1850," which by the seventy-fifth section of the Act No. 14 of the year 1853, intitulcd " An Act to amend the practice and pro- cecdings in the Equitable Jurisdiction of the Supreme Court of South Australia," were vested in the said Court shall, so far as the same have been lawfully done, be affirmed; and dl proceedings under the last-mentioned {Act comm~nced before the passing of this Act, may be proceeded slftd dpder the said last-mentioned Act, or under this Act, as may be thought most advisable, and subject as aforesaid, the said Acts of the Imperial Parliament, shall, after the passing of

this Act hay* n)o force or operation h this Province.

Y 2. And

Interpretation of

teams.	2. And whereas it is expedient to define the meaning in which certain words are heresfter used, it is declared that the several wqds \hereinafter named are herein used and applied in the manner follotv-
ing respectively, that is to say-

The word " Lands" s h d extend to and include messuages, tene- ments, and hereditaments, corporeal and incorporeal; of every tenor or description whatever may be the estate or interest therein:

The	word " Stock" shall mean any fund, annuity, or security, transferable in books kept by any Company or Society, esta- blished or to bc established, or transferable by deed alone, o r by deed accompanied by other formalities, and any share o r intercst therein:
The	word K Seised shall be applicable to any vested estate for - -
life cg of a ~ r e a t e r -- description, and shall extcnd to estates at
law and in equity, in possession or in futurity, in any lands: .-
The	word "Possessed" shall be applicable to any vested estate less -
than a life estate at law, or in equity in possession, or in ex- pectancy in any lands:
The	words Contingent Right," as applied to lands, shall mean a contingent or executory interest, a possibility coupled with an interest, whether the object of thc gift or limitation of such intere~t or possibility be or bc not ascertained; also a right of entry, whether immediate or f~~ture, and whether vested or contingcnt:
The	words G Convey" and " Conveyance," applied to any persom shall mean the execution by such person of every necessary or suitable assurance for conveying or disposing to another lands, whereof such person is seised, or wherein he is entitled to a contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, together with the performance of all formalities required by lav to the validity of such conveyance, including the acts necessary to be performed by married women and tenants in tail, in order
estates and interests: to the perfect conveyance and assurance of their respective

The words " Assign" and " Assignment" shall mean the execution and performancc by a person of every necessary or suitable deed or act for assigning, surrendering, or otherwise trans- ferring lands of which such person is possessed, either for the whole estate of' the person so possessed or for any less estate:

The word " Transfer" shall mean the execution and performance of every deed and act by which a person entitled to stock can transfer such stock from himself to another:

The word

Trust" shall not mean the duties incident to an estate

conveyed by way of mortgage; but, with this exception, the

words

words " Trust" and " Trustee" shall extend to and include implied and constructive trusts; and shall extend to and include cases where the trustee has some beneficial estate or interest in the subject of the trust; and shall extend to and include thc duties incident to the office of personal repre- sentative of a deceased person:

The	word Lunatic" s h d mean any person who shall have been found to be a lunatic upon inquiry by the Supreme Court, or any Judge thereof, or upon a Commission of Inquiry issuing out of thc Supreme Court in the nature of a writ de Zunatico
inqzcirendo :
The	expression " Person of Unsound Mind" shall mean any person not an infant, who, not having bccn found to be a lunatic, shall be incapable, from infirmity of mind, to manage his own affairs:
The	word " Devisee" shall, in addition to its ordinary signification, mean the heir of a devisee and the devisee of an heir, and generally any person claiming an interest in the lands of a deceased person, not as heir of such deceased person, but by a title dependent solely upon the operation of the laws concerning devise and descent:

The word "Mortgage" shall be applicable to every estate, interest, or property in lands or personal estate, which would in a Court of Equity be deemed merely a security for money:

The word "Person" used and rcfcrred to in the masculine gender shall include a female as well as a male, and shall include a body corporate:

And generally, unless the contrary shall appear from the contest, every word importing the singular number only shall extend to scvcral persons or things, and every word importing the plural number shall apply to one person or thing, and every word importing the masculine gender only shall extend to a female:

3. When any lunatic or person of unsound mind shall be seised The Court may make

or possessed of any lands upon any trust or by way of mortgage, it ~ t ~ ' ~ ~ ~ ~ ~ ~ ~ ~ ~

shall be lawful for the Supreme Court to make an order that such trustees and mortgrr- *

lands be vested in such person or persons, in such manner, and for such estate as such Court shall direct; and the order shall have the same eEect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate.

4. When any lunatic or person of unsound mind shall be entitled Cowt may convey

to any contingent right in any lands upon any trust, or by way of cOnti~ent"ghb.

mortgage,'it shall be lawful for the Supreme Court to make an order

wholly releasing such lands from such contingent right, or disposing

of the same to such person or persons as the said Court shall direct;

and

aad the order shall have the same effect as if the trustee or mort-

gagee had been sane, and had duly executed a deed so releasing or

disposing o f the contingent right, C

Court ma convey

estates oBinfant 5. Where any idant shall be seised or possessed of any lands

trustee8 and mortge-	upon any trust, or by way of mortgage, it shall be lawful for the
gees.	Supreme Court to make an order vesting such land$ in such person
or persbns, in such manner, and for such estate as the said Court
may direct; and the order shall have the same effect as if the infant trustee or mortgagee had been twenty-one years of age, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate.
Contingent rigbta of

infant trustees and 6. Where any infant shall be entitled to any contingent right in

mortgageea.

any lands upon any trust or by way of mortgage, it shall be la~-ful

for the Supreme Court to make an order wholly releasing such lands

from such contingent right, or disposing of the same to such person

or persons as the said Court shall direct; and the order shall have

the same effect as if the infant had been twenty-one years of age, and

had duly executed a deed so releasing or disposing of the contingent

right.

Court msy convey the

eatate of a trustee out

7. When any person, solely seised or possessed of any lands upon cannot be found. it shall be lawful for the Court to make an order vesting such lands in such person or persons in such manner ar.d for such estate as the said Court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

of fie jurisdiction of

any trusts, shall be out of the jurisdiction of the Supreme Court, or

the court.

in cases where persons

COUT~ may make order 8, When any person shall be seised or' possessed of any lands

are seieed of lands

upon any trust jointly with a person out of the jurisdiction of the

joinfl with parties

out orjurisdiction of

Supreme Court, or who canndbe found, it shall be lawful for the

court, ~ i o.

said Court to make an order vesting the lands in the person so jointly seised or possessed, or in such last-mentioned person together with any other person in such manner and for such estate as the

if the trustee out of the jurisdiction, or who cannot be found, had said Court may direct; and the order shall have the same effect as	duly executed a conveyance or assignment of the lands in the same
manner for the same estate.	.

contingent right of

Wsteea.

9. When any person solely entitled to a contingent right in any lands upon any trust shall be out of thc jurisdiction of the Supreme Court, or cannot be found, it shall be lawful for the said Court to make an oraer wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said Court may direct; and the order shall have the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right*

10. When

10. When any person jointly entitled with any other person or C01l.t map m& an

ordor in cases where

persons to a contingent right in any lands upon any trust shall be pernon,, -ointly

ollt of the jurisdiction of the Supreme Court, or cannot be found, zt+J;:$!i2$En

it shall be lawful for the said Court, or a judge thereof, to make an to a contingent right

order disposing of the contingent right of the person out of the inlands.

jurisdiction, or who cannot be found, to the person or persons so

jointly entitled as aforesaid, or to such lasbmcntioned person or

persons together with any other person or persons; and the order

shall have the same effect as if the trustee out of the jurisdiction, or

who cannot bc found, had duly exccuted a conveyance so releasing

or disposing of the contingent right.

11. Where there shall have becn two or more persons jointly Ts?en it in mcortain which of several

trusteeswMthe

scised or possessed of any lands upon any trust, and it shall be survivor of such trustecs had duly executed a conveyance or assign- ment of the lands in the same manner for thc same estate.

uncertain which of such trustees was the survivor, it shall be lawful ""ivm-

for the Supreme Court to make an order vesting 'such lands in such

person or persons in such manner and for such estate as the said

When it is uncert.ain

12+ Where any one or more person or persons shall have been seised or possessed of any lands upon any trust, and it shall not be	whether tha last
trustee be living or
known as to the ti-rlstee last known to have been seised or possessed,	dead.
whether he be living or dead, it shall be lawful for the Supreme Court to make an order vesting such lands in such person or persons in such rnanner and for such estate as the said Court shall direct; and the order shall haye the same effect as if the last trustee had duly executed a conveyance or assignment of the lands in the same manner for the same cstate.
13. When any person seised of any lands upon any trust shall have died intestate as to such lands without an heir, or sl~il l have died and it shall not be known who is his heir or devisee, it shall be lawful for the S n p m e Court to make' an order vesting such lands in such person or persons, in such manner and for such estate, as the said Court shall direct; and the order shall have the same effect as	When trustee dies
without an heir.
if' the heir or devisee of such trustee had duly executed a conveyance	of the lands in the same manner or for the same estate.
14. When any lands are subject to a contingent right in an unborn person or class of unborn persons who in coming into exist-	Contingent right of
unharn trustees.
ence would in respect thereof become seised or possessed of such
lands upon any trust, it shall be lawful for the Supreme Court to make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn or class of unborn ptlrsons would upon coming into existence be seised or possessed of
in such lands.

W 15. That

for veating the eetate, 15. Thbt when any decree or order shall have been made by the	Pey mbmmaer
;n lieu of conveyance, Supreme Court directing the sale of any lands for any purpose what-
& r ~ ~ ~ ever, every person seised or possessed of such lands, or entifled to a ~ ~ $ ~;
for ede, contingent right therein, being a party to the suit or proceeding in whichsuch decree or order shall have been made, and bound thereby, or being otherwise bound by such decree or order,shall bc deemed to

be so seised or possessed or entitled, as thc case may be, upon a trust within the meaning of this Act; and in every such case it

shall be lawful for the Supreme Court, if the said Court shall think it expedient, for the purpose of carrying such sale into effect,

to make an order vesting such lands, or any part thereof, for such

estate as the Court shall think fit either in any purchaser or in such other person as the Court shall direct; and every such order shall have the same effect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assignments of such lands for such estate.

Power to make an

order for vestin the

16. In every case where any person is or shall be jointly or solely therein upon my trust, and a demand shall have been made upon such trustee by a person entitled to reqrdue a conveyance or assign- ment of such lands, or by a duly authorized agent of such last- mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be lawful for the Supreme Court, if the said Court shall be satisfied that such trustee

awe on r e f i J m

seised or po~sessed of any lands, or entitled to a contingent right

Of a trustee

to canvey or release.

has wilfully refused or neglected to convey or assign the said lands

for the space of twenty-eight days after such demand, to make an order vesting such lands hi such person in such manner and for such estate as the Court shall direct; and the said order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands, or a release of such right in the same manner and for the same estate.

Power to convey in

place of deceased	17. When any person to whom any lancls have bcen conveyed by possession, or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to
mortgagee not in	way of mortgage shall have died without having entered into the
poseeesian.
a person entitled to receive the same, or such last-mentioned person shall consent to an order for the re-conveyance of such lands, then in any of the following cases it shall be lawful for the Supreme Court
to make an ordervesting such lands in such person or persons in such manner and for such estate as the said Court shall direct, that is to say-When an heir or devisee of such mortgagee shall be out of the jurisdiction of the Supreme Court or cannot be found: When an heir or devisee of such mortgagee shall, upon a demand by a pcrson entitled to require a conveyance of such lands or a duly authorized agent of such last-mentioned person, have refused to convey the same, or shall not convey the same for the space of twenty-eight days next after a proper deed for conveying suc'h lands shdl have been tendered to him by a pcrson entitled as aforesaid, or a duly authorized agent of such last-mentioned person: T h e n it shall be

J

uncertain

uncertain which of several devisees of such mortgagee was the

S U ~ V O ~: When it shall be uncertain as to the survivor of several

devisees of such mortgagee, or as to the heir of such mortgagee, whether he be living or dead: When such mortgagee shall have died intestate as to such lands and without an heir, or shall have died and it shall not be known who is heir or devisee: And the order of the said Court made in any one of the foregoing cases shall have the same effect as if the heir or devisee, or surviving devisee, as the case may be, had duly executed a conveyance or assignment of the lands

in the same manner and for the same estate.

18. Where a person having contracted by any instrument in In what cases the heir or devisec of a

writing to sell any land, dies without having conveyed the land in person, who mn-

pursuance of his contract, and the whole consideration for the sale tractedto sell l a ~ d, shall he decrued a

of such land hath been paid or satisfied to him in his lifetime, or to trustc	'c within this
his personal representative after his decease, or to some person enti- Act. tled to receive the same, or his personal representative is willing to receive and accept the consideration money or such part thereof as may remain unsatisfied, and there is no dispute or question as to the making of the contract, or as to the right of the purchaser of the land su agreed to be sold to demand a specific performance of such contract, and the Court shall be satisfied that the only impediment to the performance thereof arises from the fact that the legal estate in the land has become vested in an heir or devisee of the deceased vendor, who is an infant, or lunatic, or of unsound mind, then it shall be lawful for the Suprcmc Court to make an order declaring the heir or devisee, as the case may bc, of the deceased vendor to be a trustee of the land contracted to be sold, and such heir or devisee shall thereupon be deemed to be a trustee thereof within the meaning of this Act, and the said Court, by the same or any subsequent order, may order that mch land shall vest in such person, in such manner and for such estate as the said Court may direct, and the order shall have the same effect as if the person so declared to be a trustee had been twenty-one years of age, and of sound mind, and had duly executed a conveyance of the land in the same manner and for the same estate; and the said Court may also, by the sarnc or any subse- quent order, give directions as to the payment and satisfaction of any	purchase money which may remain unpaid or unsatisfied at the time	of making the order.

19. Where any decree shall be made by the Supreme Court for Court to declare what

the specific performance of a contract concerning any lands, or for parties lands comprised are trustees in of

the partition or exchange of any lands, or generally when any de- any aui t jaudavtothe interests of persow

cree s h d be made for the conveyance or assignment of any lands, ,born.

either in cases arising out of the doctrine of election or otherwise, it

shall be lawful for the said Court to cleclare that any of the parties

to- the said suit wherein such decree is made are trustees of such

lands or any part thereof within the meaning of this Act, or to

declare concerning the interests of unborn persons who might claim

under any party to the said sdt, or under the will or voluntary set-

tlement of any person deceased who was during his lifetime a party

to

to the contract or tranmctions concerning which such decree is made,

that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of this Act, and thereupon it shall be lawful for the said Court to make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as the said Court might-, under the provisions of this Act, make concerning the estates, rights, and interests of trustees born or unborn.

Power appoint new 20. Where any person is or shall be jointly seised or possessed of has been or shall be convicted of felony, it shall be lawful for the Supreme Court, upon proof of such conviction, to appoint any person to be a trustee in the place of such convict, and to make an order for vesting such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee; and such order shall have the same effect as to lands as if the convict trustee had been free from any disability and had duly executed a conveyance or assignment of his estate and interest in the same.

trustee8 in lieu of any lands or entitled to any stock upon any trust, and such person

per.rromconvict~	of
felony.
Power to Court to

make order appoint-

21. Whenever it shall be expedient to appoint a new trustcc or new trustees, and it shall be found inexpedient, difficult, or im- practicable so to do without the assistance of the Supreme Court, it shall be lawful for the said Court to make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, and whether there be any existing trustee or not at the time of making such order.

ing new trustees.

The newtrustees t. ~ 22. The person or persons, who upon the making of such order as

have the powers of last aforesaid shall be trustee or trustees, shall have all the same

~ C C T: ~ ~ O in suit. rights and powers as he or they would havc had if' appointed by a

~ ~ 5. 2 5 - decree in a suit duly instituted.

Power to Court to

vest lanb in new	23. I t shall be lawful for the Supreme Court, upon making any order for appointing a new trustee or new trustees, either by the same or any subsequent order to direct that any lands subject to
trustees.
ment, shall be the trustee or trustees for such estate as the Court the trust shall vest in the person or persons who, upon the appoint-
shall direct; and such order shall have the same effect as if the person or persons, who before such order were the trustee or trustees (if any), had duly executed all proper conveyances and assignments of such lands for such estate.

Power for court to 24. I t shall be lawful for the Snpreme Court, upon making any

law in new m,etees. order for appointing a new trustee or new trustees, either by the vest right to sue at

same or by ally subsequent order to vest the right to call for a transfex of any stock subject to the trust, or to I eeeivc the dividends or jlit:ome thereof. or to sue for or recover ilny chose in action subject to the trust, or any interest in respect thGreof, in the person or persons who upon the appointment shall be the trustee or

trustees, 25. When

25. When any infant, or any lunatic, or person of unsound mind :&?;&"p?

shall be solely entitled to any stock or to any chose in action upon lunatic trustees m&

any trust, or by way of mortgage, it shall be lawful for the Supreme mO*g"~ees- to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof; and when any person or persons shall be entitled

- jointly with any infant, or lunatic, or person of unsound mind to any stock or chose in action upon any trust, or by way of mortgage it shall be lawful for the Court to make an order vesting thc rights to transfer such stock or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof, either in such person or pcrsons so jointly entitled as aforesaid, or in such lastaientioned person or persons togather with any other person or persons the said Court may appoint.

26. When any stock shall be standing in the name of any deceased Power to transfer stock, h, standing

person whose personal representative is an infant, or a lunatic, or in the name of &-

person of uns~und mind,'or when any chose in action shall be vested c e a s ~ h e r s o n ? when

per~onal represents-

in any inGdnt, or lunatic, or person of unsound mind as the personal tive is an i d m t ur

representative of a deckasea person, it shall be lawful forthe said lmati"

~ & r t to make an order vesti& the right to trnnsfcr such stock, or

to receive the dividends or income thereof, or to sue for and recover

such chose in action or any interest in respect thereof, in any pcrson

or pcrsons he may appoint.

27. VThen any person or persons shall be jointly entitled, with Xqlen trustees of

any pcrson out of the jilrisdiction of the Supreme Court, or who diction.	stack out of juris-
cannot be found, or concerning whom it shdl be uncertain whether he be living or dead, to any stock or chose in action upon any trust, it shall bc la~vful for the ,said Court to make an ordcr vesting thc right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover sucli chose in action, or any interest
In rcspect thereof, either in stlch person or persons so jointly en-
titled as aforesaid, or in such last mentioned person or persons, together with any person or pcrsons the said Cfourt may appoint;
and when any sole trustee of any stock or cllose in avtion shall be	out of the jurisdiction, or cannot be found, or it shall be uncertain
whcthcr he be living or dead, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chase in action, OF any interest in respect thereof, in any person or pcrsons the said Court may appoint.

28. Where any sole trustee of any stock or chose in action shall T V ~ C I L Y O ~ t m t m O!

stock refmes to trans-

neglect or refuse to transfer such stock, or to receive the dividends, h ,,ty-,,,,

or income thereof, or to sue for or recover such chose in action, or days n f t ~	demand*
any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have bean made
to him by the person absolutely entitled thereto, it shall be lawful

0 fas

for the Supreme Court to make an order vesting the sole right to

trmsfkr such stock, or to receive the dividends or income thereof, or

to sue for and recover such chose in action, or any interest in respect	*
thereof, in such person or persons as the said Court may appoint.

When one of mvoral	29. Where any one of thc trustees of any stock or chose in action
trustees of stock re-

fuses to transfer, or	shall neglect or refuse to transfer such stock, or to receive the
receivc and pay over	dividends or income thereof, or to sue for or recover such chose in
dividende.	action, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the Supreme Court to make an ordcr vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, in the other trustee or trustees of the said stock or chose in action, or in any person or persons whom thc said Court may appoint jointly with such other trustee or trustees.
ing in the name of a

When stock is &and- 30. When any stock shall be standing in the sole name of a

deceased person,	deceased person, and his or her personal representative shrtll be out
whose personal reprc-
sentative shall be out	of the jurisd3ction of the Snprcrne Court, or cannot be found, or it
of the jurisdiction of	shall bc uncertain whether such personal representative bc living or

"the Suprcrne Court,

&C., or shall refuse,

dead, or such personal representative shall neglect or refuse to trans-

&c.

fer such ~tock or to rcceivc the dividends or income thereof, accord- ing to 'the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person entitled as aforesaid, it shall be lawful for the said Court to make an order vesting the right to transfcr such stock, or to receive the dividends or income thereof, in any person or persons whom the said Court or Judge may appoint.

On negleot to trnnsfor	31. Where any person shall neglect or refuse to transfer any stock,
stock for

daya after an order to eight or to receive the dividends or income thereof, or to sue for or recover

transfer, ordcr may be	any chose in action, or any interest in respect thereof, for the space of
made, vesting right to	twenty-eight days next after an ordcr of the Court for that purpose

tran~tr in such per- Bon us fie court s h d shall have been served upon him, it shall be lawful for the Sunreme

appoint.	Court to make an order vesting all the rights of such perioJl to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said Court may appoint.
executor, similar

On like neglect by 32. When any stock shall be standing in the sole name of a

oWer may be made.	deceased person, and his personal representative shall refuse or neglcct to transfer such stock, or to receive the dividends or income thereof, for the space of twenty-eight days next after an order of the Supreme Court for that purposc shall have been served upon him, it shall be lawful for the Court or a Judge thereof to make an order vesting
the right to transfer such stock, or to receive the dividends or income
thereof, in tiny person or persons whom the said Court may appoint.

33. When any order being or purporting to bc under this Act w e c t of order,verit-

shall be made by the Supreme Court, vcsting the right to any stock, ~ ~ p ~ ~ ", . ~ ~ ~ y

or vesting the right to transfer any stock, or vesting the right to call

for the transfer of any stock, in any person or persons, in every such

case the legal right to transfer such stock shall vest accordingly;

and the person or persons so appointed shall be authorized and

empowered to execute all deeds and powers of attorney, and to

perform all acts rclating to the transfer of such stock into his or

their own name or names, or otherwise, to the extent and in con- '

formity with the terms of the order; and all cornpanics and

associations whatever, and dl pcrsons shall be equally bound and

compellable to comply with the requisitions of such person or persons

so appointed as aforesaid, to the extent and in conformity with the

terms of such order, as such companies, associations, or persons

would have been bound and compellable to comply with the recpi-

sitions of the person in whose place such appointment shall have been

made.

34. Every order made or to be made, bcing or purporting to bc Indemnity to com-

made, under this Act by the Supreme Court, shall be a complete ~	~	So	~	$	~	.	~
indemnity to all companies and associations whatsoever, and all pcrsons, for any act done pursuant thercto; and it shall not be necessary for such company, or association, or person, to inquire concerning the propriety of such order, or whether the Court or Judge making the order had jurisdiction to make the same.

35. WThere any order hall have been madc under the provisions ~ f ~ ordar ~ t ~ f ~

of this Act, vesting the lcgd right to sue for or recover any chose in vevting legal right in	a chose in action.
action, or any interest in respect thereof, in any person or persons, such legal right shall vest accordingly; and thereupon it shall bc	Q . & - , , S 2 Jt-
lawful for the person or pcrsons so appointed to carry on, commence,

and prosecute, in his or their own name or names, any action, suit,	\
or other proceeding at law or in equity, for the recovery of such chose
in action, in the same manner in all respects as the person in whose place an appointment shall have been made, could have sued for or recovered such chose in action.

36. I t shall be lawful for the Supreme Court to make declarations to make ili-

and give directions concerning themanner in which the right to any ~

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stock or chosc in action, vested undcr the provisions of this Act, cxerciscd. shall be exercised; and thereupon the perso'n or persons in whom such right shall be vested shall be compellable to obey such directions and declarations by the same process as that by which other orders under this Act are enforced.

37. In every case where the Supreme Court shall under the Power to appoiut

provisions of this Act be enabled to make an order having the effect p erson to convey iu	certain cases.
of a conveyance or assignment of any lands, or having the effect of a
release or clisposition of the contingent right of any person or persons born or unborn, it shall also be lawful for the said Court, s h d d it be deemed moinc couvenient so to do, to make an order

appointing

appoihting a pan to convey or assign such lands, or release or dispose of such contingent right; and the conveyance, or assignment, or release, or disposition of the,person so appointed shall, when in conformity with the terms of the order by which he is appointed, have the same effect in conveying or assigning the lands, or releasing or disposing of the contingent right, as an order of the Supreme Court would in the particular case have had under the provisions of this Act; and in e~-ery case where the said Court shall, under the prt>visions of this Act, be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the books of any Company or Society established or to be established, it shall also be lawful for the Court, if'it be deemed more convenient, to make an order directing the Secretary or any officer of such Company or Society at once to transfer or join in transfering the stock of the person or persons to be named in the order; and this Act shall be a full and complete indemnity and discharge to all Companies or Societies, their officers and servants, for all acts done or permitted to be done pursuant thereto.

Old trustees not to be

divcharged from	38. Any such appointments by the Supreme Court of new trus- tees, and any such conveyance, assignment, or transfer as aforemid, shall operate no further or otherwise as a discharge to any former or continuing trustee, than an appointment of new trustees under
liability.
any power for that purpose contained in any instrument would
have done.

U h o may apply for 39. An order under any of the hereinbeforc rontaincci provisions,

mder of Court. for the appointment of a new trustee or trustees, or concerning any lands, stock, or chose in action subjcct to a trust, may be made up& the application of any person bcn&ally interested ill such lands,

I 4<4& % .-h2 '3

~tock.

or chose in action. whether undcr disabilitv or not. or unon the aiplicatiotion of any prson duly appointed as trnstcd thercof; and an order under any of the provisions hcreinbeforc contained concerning any lands, stock, or chose in action, subject to a mort- gage, may be made on the application of any person beneficially interested in the equity of redemption, whether undcr disability or not, or of any person interested in the moneys secured by suchmortgage. from the Supreme Court, may apply for the same upon petition to be addressed to the Judges of the said Court for !uch order as he may deem himself entitled to, which petition, and all matters directly or indirectly arising thereout, may be heard and disposed of by the Court, or any Judge or Judges thereof; and the person applying for such order may give evidence by affidavit or otherwise, in support of such petition, and may serve such person or persons with notice of such petition as he may.deem entitled to se'rvice thereof, and upon hearing such petition the Court, or Judge, or Judges before whom the same is brought, may either dispose of the matter thereof in the first instance, or may direct a reference to the Master to inquire into any facts which require inwstigation, or may direct such petition to stand over until

Parties entitled may

apply to the Court by 40. Any person entitled in manner aforesaid to apply for an order

the

the right of the petitioner shall have been declared in a suit instituted fbr that purpose, or to enable the petitioner to adduce evidence, or for further consideration, or to enable notice or any further notice of such petition to be served upon any person, and may either dis- miss such petition or make an order in conformity with the pro- visions of this Act, and in either case may make such order with respect to costs as shall seem just; and may, when it shall seem proper to do so, order the costs and expenses of and relating to the petitions, orders, directions, conveyances, assignments, and transfers to be madc in pursuance of this Act or any of them, to be paid, and raised out of or from the lands or personal estate in respect of which the same shall be made, or in such manner as the Court shall think proper.

41. Whensoever in any cause or matter, either by the evidence power to makcorda ,U a. cause.

adduced therein, or by the admission of the parties, or by a report I

of the Master the facts necessary for an order under thia Act shall

appear to such Court to be sufficiently proved, it shall be lawful

for the said Court either upon the hearing of the said cause, or

any petition or motion in the said cause or matter, to make such

order under this Act.

42. Whenever any order shall be made under this Act by the Ordersmade Supreme court by foun- the

Supreme Court for the purpose of conveying Or assigning any lands, ded on certain

or for the purpose of releasing or disposing of any contingent right, t evidcncc ions to be of conclua~ve the nutter

contained in such

and such order shall be founded on an allegation of the personal of several trustees, or which of several devisees of s mortgagee was the survivor, or whether the last trustee, or the heir or last surviving devisee of a mortgagee be living or dead, or an allegation that any trustee or mortgagee has dicd intestate without an heir, or has died and it is not known who is his heir or devisee, then, in any of such cases, the fact that the Supreme Court has made an order upon such an allegation, shall be conclusive evidence of the matter so alleged	in any Court of law or equity, upon any question as to the legal	validity of the order: Provided always, that nothing herein contained
shall prevent the said Court directing a re-conveyance or re-assign-
ment of any lands conveyed or assigned by any order under this
Act, or a re-disposition of any contingent right conveyed or disposed
of by such order; and it shall be hwful for the said Court to dire&
any of the parties to any suit concerning such lands or contingent L G)
rigllt, to pay any cost occasioned by the order under this Act, when c x p ~ & & ~ i
the same shall appear to have been improperly obtained.

A C- ---.L.& -4'

incapacity of a trustee or mortgagee, or on an allegation that a trustee aflegations.

or thc heir or devisee of a mortgagee is out of the jurisdiction of the

43. No lands, stock, or chose in action vested in any person upon zpz'g& :Ln +- 3

way tmst or mortgage.

any trust or by of mortgage or any profits thereof shall escheat for any offence of such trustee or mortgagee, but shall remain in such

or be forfeited to Her Majesty, He1 heirs or successors, or to any

P trustee

trustee or mortgagee, or survive to his or her CO-trustee, or descend

or vest in his or her representative as if no such attainder or CO

viction had taken place. X

44. Nothing contained in this Act shall prevent the escheat or forfeiture of any lands or personal estate vested in such trustee or mortgagee so far as relates to any beneficial interest therein of any such trustee or mortgagee, but such lands or personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this Act had not passed.

Money of infants and	45. Where any infant, or person of unsound mind, shall be en- in action, conveyed, assigned, or transferred under this ,4ct, it shall be lawful for the person by whom such money is payable to pay the same to the Master of the Supreme Court or to such other officer thereof as the Court shall appoint, in trust, in any cause then depending concerning such money; or, if there shall bc no such cause, to the credit of such infant, or person of unsound mind, subject to the order or disposition of the said Court; and it shall be lawful for the said Court, upon petition in a summary way, to order any money so paid to be invested in any public funds, or upon mortgage of real estate, and to order payment or distribution thereof, or pay- ment of the dividends or intcrest thereof, as to the said Court shall seem reasonable; arid the Master, or officer, ivho shall receive any such money is hereby required to give the person paying the same a receipt for such money, and such receipt shall be an effectual dis- charge for the money therein respectively expressed to have been received.
mind to be paid into	titled to any money payable in discharge of any lands, stock, or chose
Court.
Court may make a
dcorco in the ahence	46. Where, in any suit comnleiiced or to be commenced in the Supreme Court, it shall be made to appear to the Court by affidavit that diligent search and inquiry has been made after any person made a defendant, who is only a trustee, to serve him with the pro- cess of the Court, and that he cannot be found it shall be lawful for the said Court to hear and determine such cause, and to make such
of a trustee.
to be only a trustee, and not otherwise concerned in interest in absolute decree thcrein against every person who shall appear to them
the matter in qucstion in such and the same manner as if such trustee had been duly served with the process of the Court, and had appeared a d filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of the cause: Provided always that no such decree shall bind, affect, or otherwise prejudice any person against whom the same shall be made without service of process upon him as aforesaid his heirs, executors, or administrators, for or in respect of any estate, right, or interest, which such person shall have at the time of making such decree for his own use or benefit, or otherwise than as a trustee as aforesaid.
ing porean of unsound

pbrsuUR of unsound

Commission concern* 47. Upon any petition being presented under this Act to the

Blind. Supreme Court concerning a person of unsound mind, it shall be - - -

lawful

lawful for the said Court, should it so think fit, to direct that a com-

mission, in the nature of a writ de t~ncltico inquirendo, should issue

concerning such person; and to postpone making any order upon / C -5+J&-

such petition until a return shall have been made to such com- F;$

,, c -3 c XZ-

mission.

48. In citing this Act in other Acts of the Colonial Legislature, Sho*tifle~f Act-

and in legal instruments, it shall be sufficient to use the expression,

The Trustee Act, 1855."

.c

ELA AIDE: Printed by authority, by W. C, COX, Qowrnmont Printer, Victoria-square,