Trustees Act 1862 (SA)

ANNO VICESIMO QUINTO ET VICESIMO SEXTO

VICTORIAE REGINE.

A. D. 1862.

No. 7'.

An. Act to give to Trustees, Jfortqagees, and others certain powers

now comn~only inserted it2 ~ettiemerzts, Mortgaps, and Wills.

[Assented to7 21st October, 1862 ]

AS it is expedient that certain powers and provisions preamble.

which it is now usad to insert in settlements, mortgages, wills, and other instrnments, should be made incident to the estates of t lk persons interested, so as to dispense with the necessity of inserting the snme iu terms in every such instrument-Be it therefore Enacted by the Governor-in-Chie f of the Province of South Australia, with the advice and colwent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

PART I.--Powers of trustees for s:tlc, &C., and trustees of re-

L

newable leaseholds.

1. I n all cases where by any or other instrument of Tmbee empowe~<~d

settlement, i t is expressly declared or other persons & ~ ~ ~ ~ ~ ~ ~ ! &

therein named or indicated, shall of sale. either auctionor ~rivata,

generally or in any partic;~lar e ov4 any hereditameuts eOnbGt* ' 3 &I-

named or referred to in, or from t	o time subject to the uses 0	6	6	f r
or trusts of such will, deed, or 0th	triumcnt, it shall be lawful
for such trustees, or other perso	ether such hereditaments

be vested in them or not, to exer	power of sale by selling
such hereditamcnts, either togeth	ts, and either by auction

or private contract, and either at at several times, and

(in case the powers shall rize an exchange) to

exchange any hereditaments W	time being, shall be
subject to the uses or trusts	r any other heredita-

ruents (as the case may be), exchange to give or

receive any money for equali 2, It

Sale m y be made	2. It shall be lawhl for	persons making any such sale or
under special condi-

tions, and t r u 8 k e s exchange to insert any such ecial or other stipulations, either

may 4	$0.	as to title or evidence of ti	r otherwise in any couditiom of
sale, or contract for sale or	ange, as they shall think fit, and

also to buy in the heredita	or any part thereof, at any salc
by auction, and to resci	vary any contract for sale or
exchange, and to re-sell	reditaments which shall be so
bought ia, or as to wh	contract shall be so rescinded

without being responsibl	loss which may be occasioned
thereby, and no purcha	any such sale shall be bound
to inquire whether the	ng the same may or may not
have in contemplation	ar re-investment of the pur-

chase money in the	any othcr hereditaments or
otherwise.

~mtees exercisiig 3. For the purpose of any such sale or. exchange as

power of sale, &o., as aforesaid, shall have full

~ m p c n ~ e d ~ ~ n v q,	aforesaid, the perwns
power to convey or of the hercditaments in
question either by appointment of the use,
or otherwise, as

Moneys ar-e from 4. The money so receive

tales, &G., to be laid ny such sale, or for equality

in	l&l, ,	of exchange as aforesaid, sh	out in the manner indicated
in that hlialf in the will?	other instrument containing
the power of sale or exchan	o such indication be therein
contaiced as to all or any p	money, then. the same shall,
with all convenient speed,	t in the purchase of other ion, or of lands of a lease-
hold tenure, which, in	f the persons making the
purchase, are convenient to	crewith, or with any other

'hereditarnents , subjecbt to the subsisting uses

or trusts of the same or other instrument of settle-

ment in which the power of	or excl~ange was contained,
and all such heredit	be purchased or taken in

eholds of inheritance, shall

r the trusts, intents,

subject to the poweits, pro-

ereditauwuts sold or give0

subject, or as near thereto

ening accidents will admit

ly charges; and all such

in exchange as aforesaid,

as shall be of lea

settled or assured upon

and for such tru

S, and with, under, and

declarations as shall, a,s

similar to the aforesaid

, provisoes, and declara-

charges, and so that if shall be 'held by lease in any tenant in tail by

ty-one yews ; and my

such

such purchase, as aforesaid, may be ma	ubject to any special
conditions as to title or otlierwise: P	ed that no leasehold
tenement shall be purchased under the	rs hereinbefore con-
tained, which is held for a less period th

Of en-

5. I t shall be lawful for the persons ex sing any such power

as aforesaid, if they shall think fit to apply	money to bc received
upon any sale, or for equality of exchange	foresaid, or any part
'thereof, in lieu of purchasing lands there	n or towards paying
off or disclwgiug any niortgage or 0th	ge or eucuru briance
which s l d l or inay affect all or any (	ercditarnents which

shall thcn bc subjrit to thc same u&s or	as those to which
the hereditainents sold or given in	or was subject.

6. Until the money to be received u	any salt? or for equality	Until purchase of
lands, &C., mnney to

of exchnge as aforesaid s h ~ l l be dispo of in the manlier herein be invested at interest,

mentioned, the same sliall be invested	nterest for the benefit o f
the same parties, who \vould be entitl	the hereditsirrents to be
purchased therewith as aforesaid, an	rents and profits thereof
in case such purchase a i d settlement	resaid were then actually
made.

7. It shall be lavvful for any trt~st	of nny leaseholds for lives	leaseholds may renew.
Trustees of renewable

or years wlliicll are rencjwtnl~le from to time, either uider any

covcnailt or contrwt, or by custorri	rlal p~*actice if they shall
in their discretion t l h k fit, a id it sh	the duty of 'sucll trustees,
if' thcrcunto required by m y pcrson	g :my beneficial interest,
present or future or contingent in S	seholtis, to use their best
endeavors from time to time to obt	iiewed lcasa of the same
hereditarnents on the accustomed a	nnble terms, and for that

purpose it shall be Inwful for any s u ~ h	trustees fiom time to time
b hake, or concur in nmking" S	surrelrdcr of the lcrrse for

the time being subsisting, and to	1 sllctl o t k r acts as shall be
requisite in tliat behalf; but this	n is not to apply to any case
where, by the terms of t'he settleilr	will the persori in possession

for his life or other liinitecl in is entitled to elljoy the same

without m y obligation to rene	lease, or to contribute to the
expeuse of renewing the same.

8. In case any money shall be cl for tlhe purpose of pay- Money for eq~ali ty of exchange, or for

ing for equality of exchange as , i t ~21~11 be lawf~xl for the renewal of leases map

persons efiecti~q sneL exchange a1 to pay the same out of be raised by ~nortgage.

any money wli~cll may then b	hands in trust for the
perscns beneficially intbrcstcd in	o he taken i n cxchange,
or comprised in the renewed 1	r arising by any of the
ways and means hereinbefore m	tberwise, and notwith-

standing the provisions for the	&on of money arising from
sales or exchanges hereinbefore	incd; aud if they shall not

have in tlieir hands, as aforesai	oney f'or the purposes
aforesaid, it shall be lawful	ris to raise the niorley

required by mortgage of tll to be received in

exchange

d lease (as the caae may be), the time being, subject to the the hereditarnents taken in ex- ed lease (as the case may be) es of effecting such mortgage, era of conveying or otherwise th reference -to a eouveyance

g money upoh such mortgage

er shall be bound to see that ore is raised than is wallted

Noaa2atoberrrede

without aonaent af 9. No 8Uch ale or s aforesaid, and no purchase of

tenant for Me. hereditaments out of m d on any such sale or exchange

as aforesaid shall be out the consent of' the person

appointre-i to consent deed, or other instrument, or if

no such personi be ap of the person entitled in pos-

aession to the receipt o S and profits of such hereditaments

~ W M O, if there be mch a person no disability; but this clause shall

not be taken to requir f any person where it appears

from the will, deed, or other	ent to have been intended that
such sale, exchange, o	uld be made-by the person or

persons making the sa consent of any other person.

PART 11.-Powers of Mortgagees:

Powers incident to 10. Where any principal money is secured or charged by,de!d

mortgages.	on any hercditaments of any tenure, or on any interest therem,
the person to whom such money shall for the time being be
payible, his executors, adnlinistrators, and assigns shall at -time
& the expiration of one year from the time when such princi a1
money shall have become payable according to the terms of t e ---%
deed, or at any time after any interkst - on such principal money
shall have been in arrear for six months, or after arrp omission to
pay any premium on any ii~surmce which by the terms of the deed
ought to be paid by the person entitled to the property, subject to
the charge, have the following powers to the same extent -- (but ao
more) i s if they had been in terms ~ o n f e r r e ~ ~ e r s o n creating
the charge, namely- -
First-A power to sell or to concur with any other person in selling the whole or any part of the property by public auction or private contract, ~ubject to any reasonable con- ditions he may think fit to make, and to rescind or vary contracts for sale, or buy in and re-sell trhe property from time to time in like manner.

To insure at m&-

expenBB, S&o~d--A power to insure and keep insured from loss or damage

by fire the whole or any part of the property (whether

affixed to the freehold or not) which is in its nature in- surable, and to add the premiumspaid for such insurance, to the principal money secured at the same rate of interest.

Third-

Third-A power to appoint or obtain the appointment of s rec&er Tow**-

of the reattl and profits of the whole or any pax6 of

property in manner herainafter mentioned.

1 1. Receipts for puroha~e-money given by the person or persona Receipts for P -

money auffWmt

exercising the power of sale hereby conferred, shall be suffi~ient &bp,

discharges to ther purchasers who shall not bo bound to see ta the

application of such purchaae.money.

12. No suoh sale ae aforesaid shall be made till after one ~ o t i ~ to be given

before aale - but pur-

month's notice in writing, given to the person, or one oT-th per- ,, mE;ved

sons~%n~eed to the property subject to the charge, or a&ed on i n n d ~ cir~um-

some conspicuous part of such property; but when a sale has been &lW of &B.

effected in ~ o f e s s e d exercise of the powers hereby conferred, the ,.&&3dgF@,

title of the puTdGsZLall not be liable to be i& eached on the	1
ground that no case had arisen to authorize the e$erci~ of aueh
power, or that no such notice aR aforesaid had been given, but any g+xt

persou damnified by any unauthorized exercise of such p o w r shall

have his remedy in damages against the per~~on selling.

13. The money arising by any sale cffected as aforesaid shaU. be Application of purchaae money.

'pplied by the person receiviug the same as follows :-First., in pay- ment of all the expenses incident to the sale, or incurred in any attempted sale; s~condly, in discharge of all interest and caste th& due in respect of the charge in consequence whereof sale was made; and, thirdly, in discharge of all the principal moneys then due in respect of such charge; and the residue of such mpney shall be paid to the person entitled to the property subject to the

charge, his heirs, executors, administrator^, or assigna, as the cam

may be.

have power by deed or otherwise to convey or assign to and vest in p\1mk~r. 14. The person exercising the power of sale hereby conferred $hall o09vcpsraae to 6

the purchaser the property sold, for all the estate and interest thmein J-30

which the person who created the charge had power to dispose of. 3 ~ c 3 668

15. At any time after the power of sale hereby cooferred ahaLI ~y; ; ;~ t ;~ ;~I~~~

have become exercisable, the person entitlcd to exercise the same mnvqme 04 1

-

shall be entitled to demand and recover from the pereon entitled to

the property subject to the charge all the deeds or docummt~ in hi, posscsion or power relating to the same property, or to the

title thereto, which he would lrave been entitled to d e n d a ~ d re-

cover if the same property had been conveyed, appointed, surren-

dered, or assigned to, and were then vested in him, for till the @hi

and interest which the person creating the charge had power to dis-

pose of; and where the legal estate shall be outstanding in a

trustee, the person entitled to a charge created by a perm equb "5, eh= -

'4

ably entitled, or any purchaser from such person s h d be ent idd to call for a conveyance of the legal estate to the am e-t ss

the person creating the charge could have called for M& s CM-

veymee if the charge had not been made.

M 16. Any

Appointment of

receiver.

16. Any person entitled to appoint or obtain the appointment of

a receiver, as aforesaid, ujay from time to time, if any person or

5 *l0 C@)	persons has or have been named in the deed of charge for that pur- I pose, appoint such person, or any oue of such pe&ons, to be re- ceiver; or if no person be so named, then may by writing, delivered
to the person, or any one of the persons, entitled to the property

- subject to the charge, or affixed on some conspicuous part of the property, require such last-mentioned person or persons to appoint a fit and proper person as receiver, and if no such appointment be made within ten days after such requisition, then may in writing appoint any person he may think fit.

Receiver deemed to

be the agent of the 17. Every receiver appointed as aforesaid shnll be deemed to be

mortgagor.

the agent of the person entitled to the property subject to the

charge, who shall be ~olely responsible for his acts o r defaults,

udess otherwise provided fbr in the charge.

Powers of receiw.

18. Every receiver appointed as aforesaid shall have power to demand and recover and give cff'ectual receipts fbr a,ll the rents,

issues, and profits of thc property of which he is appointed re-

ceiver, by action, suit, distress, or otherwise, in the name either of the person eatitled to the property subject to the charge, or of the person entitled to the money secured by the charge to the full extent of the estate or interest which the person who created the charge

had power to dispose of.

Reoeivet may be 19. Every receiver appointed as aforesaid may be removed by

removed, the like authority; or, on tlic like requisition as before provided with rcspect to the original appointment of a receiver, and new receivers may be appointed from time to t h e.

~ e d v e r to receive a'

commiseion not ex- 20. Every receiver appointed as aforesaid sllall be entitled to

cmdb8 aye

cente retain out of any money received by 1bn1, in lieu of all costs, charges,

and expenses whatsoever, such a commission not exceeding five per

centum on the gross amount of all money received, as shall be

specified in his appointment; and if' no amount s11a11 be so specified, then five per centum on such gross amount.

-

Ileceiver to inme if

21, Every receiver appointed as aforeaaid shall, if so directed in writing by the person entillecl to the mouey secured by the charge, insure and keep insured from loss or damage by fire, out of the money received by him, the whole or any part of the property included in the cllarge, whether affixed to the f'reebold or not, which

required.

is in its nature insurable.

*ppli@ti@nof m0ne~8

received.

22. Every receiver appointed as aforesaid shall pay and apply all

the mouey received by him in the first place in discharge of' all

.

taxes, rates, and assessments whatsoever, ancl in payment of his cornlvission as a'foresaid, aud uf the prenliums on the insurances (if any), and in the next place, in payment of all the interest accruing

due in respect of any prillcjpal money then charged on the property

over

over which he is receiver, or on any part thereof, and subject as aforesaid, shall pay all the residue of such money to the person for the time being entitled to the property subject to the charge, his executors, administrators, or assigns.

PART 111.-Provisions as to inrestnlent of trust funds, appoint-

ment and powers of trustees and executors,'&c.:

23. Trustees having trust money in hands which it is their o n what security trust funds may be

duty to invest at interest, shall be at liber eir discretion, to invest invested.

1

the same in So& hustra1iar.l Govern

of ikeeholds in the said Provirice

sl~all also be at liberty, at their dis invested in any other securities th same on any such securities as

time, at their discretion, to vary	tments as aforesaid
for otl~ers of the same nature:

original investment as aforesaid (	ustralian Govern-
ment Securities), and no such	ment as aforesaid
'shall he made where there is a in possession to receive the i or f'or a term of years determi estate, without the consent i

24. In a11 cases where any prope by trustees in trust Trustoee may apply

for an infant, either absolutely or c incomo of propcrt of

on his attaining the in,n,, ,C., far @h 2

age of twenty-one years, or on th	e of m y event pre- maintmmce.
viously to his attaining that age, it shall	ful for such t r u s t e c s p - 56 B 3 ;7
at their sole discretion to pay to t'h	f any, of such infant - ,% - sq3

o apply for or towa enance or education

Or OtherwiF

of such inf nt the whole or any p ome to which such - 1 t l C 2 2 6

infant may be entitled in respect rty, whether there - 8 1 c 6 - ' L 3 1

be any other fund applicable to or any other

person bouud by law to provide for ~u nce or education

or not; and such trustees shal all the residue of such

income by way of con~pound the same and

the restdting- income thereof fro per securities,

for the benefit of the person w	become entitled
to tlre property from which su	all have arisen:

Provided alwnys, tllat it shall	for such trustees at any
time, if it shall'aPpear to them	o apply the whole or any

part of such a~curn~~lnt io~ls as art of the income

arisiug in the then current yew.

25. Whenever any trustee, eithe gind or substituted, and Provision3 pointment of for new W-

whether appointed by the Supreme	t of the said Province or trustees	death, ko,
otherwise, shall die, or desire to be	arged from, or refuse, or

become unfit or incapable to act i	trusts or powers in him
reposed before tbe same shall hav	fully discharged and per-
fornled, it shall be lawful for the	or persons nominated for

that purpose by the deed, will, o	instrument creating the
trust (if any), or if there be no sue	, or no such person able

and

and willing to act then fo	urviving or continuing trustees or
trustee for the time being	ich purpose a retiring trustee shall
be deemed a t	acting executors, or executor, or
f the last surviviug or continuing
ustee, by writing, to appoint any rustee or trustees in the place of

the trustee or trustees	or desiring to be discharged, or
refusing, or becoming U	pable to act as aforesaid; and so
often as any new trustc	s shall be so appointed as afore-
said, all the trust prop	), which for the time being shall
be vested in the survi	inuing trustces or trustce, or in

the heirs, executors, o	rs of any trustee, sl~all with all
convenient speed be c	ed, and transferred, so that the vested in such new trustee or
the surviving or continuing every new trustee or trustees efore as after suclr conveyance

also every trustee appointed by the ted, either before or aft& the ame powers, authorities, and t as if' he had been originally

nominated n tru or other instrument creating

Appointment ofnew

trustees in cmes	26. The power of appoint? g new trustees hereinbefore contained has died in the life of thc tea ator.
herein named,	may he exercised in cases ~herc: a trustee noiiiinated in a will

I

Trusteed receipts t o

be discharges. 27. The receipts in writi g of any trustees or trustee for any money payable to them or 11 by renson of, or in exercise of, ally

4 + ?. 4 d 4 4 trusts or powers reposed r vested in them or him, shall be mfficient discharges for the rr oney therein expressed to be received,

6	- 2 1	and shall effectually exoner te the persons paying such money from seeing to the applicatiol~ thereof, or from beiag answerable fur
any loss or nlisapplication th 1 eof.

Executors may com-

pound, &c. any executors to pay any debts or

clraims upon ally

and other things

for any

PART 1V.-General pro

Tenante for life, &C., 29. For the purposes a person shall be deemed to

may execute powers,	be entitled to the	the receipt of the rents and
notwithntanding in-

cumbrmces . income

income of land or personal prop	although his estate may be
charged or encumbered, either b	self or by any former owner,
or otherwise howsoever to m y	; but the estates or interests
of the parties entitled to any su	gc or encumbrance shall not

be affected by the acts of the ntitled to the possession, or

to the receipt of the rents and	aforesaid, unless they shall
concur therein.

30. Hone of the powers or incid nts hcreby conferred, or annexed P.	given, may be nega-
owers, &G, hereby

to particular officcs, estates, or rcurnstances, shall take effect, or tiYed g ,p, ,

be exercisable. if it is declared	r	the deed, will, or other instru- declaration.
ment creating such offices, es	or circu&stanees, that they shall
not take effect; and where tl	no such declaration, then, if any
variations, or limitations of	the powers or incideuts hereby
conferred or annexed are	ed in such deed, will, or other
instrument, such powers o	ts shall be exercisable, or shall

take effect, only subject W to iations or limitations.

31. Nothing in this Act c ned shall bc deemed to empower ~ ~ ~; ~ e; ~ P; e d

m y trustees or other person	deal with or affect the estates or under the settlement,
rights of any person soeve	cpt to the extent to which they $0.3 to be a f f e w *

m~ght have dealt with or d the estates or rights of such

persons if the deed, will, o instrument, under which such irustees or other persons are nlpowered to 'act, had contained express powers for such trustee r other persons so to..deal with or affect such estates or sights.

32. The powers given by this Act to trustees, and the power of Powers of Tru~kcn, and certain powers of

appoi~ting a receiver given by this Act to certain mortgagees, may. M ortgagece, 60 extend

be exercised respectively by trustees or mortgagees of any land or to land unTier ~ e a l

hereditarnents in the said Province, under the provisions or Property ~ c t.

operation of the Real. Property Act of 1861 or not; b6t as to lands or hereditaments under the provisions or operation of the last- mentioned Act, only so far as the powers given by this Act are not' inconsistent with the provisions of the said Real Property Act of

l86 1: Provided that nothing in this Act contained shall in anywise

alter, affect, or repeal any provision of the said Real Property Act

of 1861.

33. The provisions contained in this Act shall, except as herein- BlrpIication of ~ c t.

before otherwise provided, extend only to persons entitled, or acting under a deed, will, codicil, or other instrument executed after the passing of this Act, or under a will or codicil confirmed or revived

by a codicil executed after that date.

In the name and on behalf of the Queen I hereby assent to

thia Act.

D. DALY, Governor.

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Adelaide: Printed by authority by W. C. Cox, Government Printer, Viotoria-equcue,

N