Trustees Act 1893 (SA)

ANNO QUINQUAGESIMO SEXTO ET QUINQUAGESIMO

SEPTIMO

A.D. 1893.

No. 586.

An Act to consolidate and amend the Law relating to

Trustees, and for other purposes.

[Assented to, December ~ r d, 1893.1

E it Enacted by the Governor of the Province of South Aus- and Housc of Assembly of the said province, in this present Parlia-	B tralia, vi th the advicc and consent of the Legislative Council
ment assembled, as follows:

1. This Act may bc citcd as The Trustee Act, 1893," and shall short title md

come into operation on a day to be fixed by the Governor, by commencement.

A-586

$5" & 5 7 O VICTORIE, No. 586.

Proclamation in the ~ o z w t m e r z t Gazette.

2, This Act is divided into parts, as follows :- Division.

PART	I.--Investments.
PART	11.Var ious Powers and Duties of Trustees.
PART	powe powers of the Court.
PART	IT.--Special provisions as to Appointment of New Trus-

tees.

P ART V .-Miscellaneous and Supplemental.

3. The Acts mentioned in the First Schedule hereto are repealed Bepeal.

to the extent in such schedule mentioned.	Such repeal shall not
affect -

I. Anything done under any enactment hereby repealed:

11. Any right or privilege acquired, or liability incurred, under

, any enactment hereby repealed. *QY

The Trustee Act.-1 893.

Any proceedings begun under the repealed enactments, or any of them, may be continued and concluded as though this Act had not

been passed.

I

PART 1,

Authorieed

investments. 4. (1) A trustee may, unless expressly forbidden by the instru-

ment (if any) creating the trust, invest any trust funds i n his hands,

whether at the time in a state of investment or not-

(a) I n South Australian Government securities:

( b ) On real securities in the said province:

(c) In any securities guaranteed by the Government or Parliament of the said province:

(d ) I n the bonds, debentures, or other securities of any Municipal

Corporation in the said province:

( e ) On deposit in the Savings Bank of South Australia:

If) On d~posit in any incorporated bank carrying on business in the said province and proclaimed by the Governor in the Government Gazette as a bank in whidi deposits may be made by trustees:

(g) I n any of the Parliamcntary stocks or public funds, or Government secarities of the Uni ted Kingdom of Great Britain and Ireland (subject to sub-section (3) of this section):

( h ) In the Government securities of any British colony or possession (subject to sub-section (4) of this section):

and may also from time to time vary such investment.

(2) The Governor may from time to time, by Proclamation in the made in the said United Kingdom, or in any British colony or	Government Gazette, declare that satisfactory arrangements have been
possession, for permitting trustees in the said United Kingdom, or in any such colony or possession to invest i n the public securities of this province; and may from time to time, by Proclamation in the Government Gazette., revoke any such Proclamation as in this sub- 1 section first above mentioned.

(3) No investment under the authority of this section shall be

made in any of thc stocks, funds, or securities mentioned in the fore- going division (g), except while s Proclamation such as in sub- section (2) of this section is first mentioned and relating to the United Kingdom shall remain in force.

(4) No investment under the authority of this section shall be made in any of the securities mentioned in the foregoing division ( h ) except while a Proclamation such as in sub-section (2) of' this section

is

5 6 & 57' VICTORIiE, No. 586. Sit

The Bustee Act.- 18%.

is first mentioned, and relating to the British colony or possession	PART	I.
concerned, shall remain in force.

5, No trustee wno has heretofore deposited trust moneys either No trustee to be liable in consequence

on fixed deposit or on current account in any bank shall be liable or lose o,,ionioned ay for any loss which may have ensued in consequence of the failure ae~ositingtrust	moneys in	bank.
of any such bank: Provided that in the opinion of the Court he shall have acted with ordinary prudence, and not in contravention of any express trust.

6, (1.) Subject to sub-section (2) of this section, a trustee may Truetees may invat

invest in any of the securities mentioned in section 4, notwith- nOtwith"'n'ng securities redeemable.

standing that the same may be redeemable, and that the price	-
exceedsthe redemption value.

(2 ) A trustee may not under this Act p~mhase at a price exceeding its rcdemption value anv securities mentioned or referred to in division (c), (d), (g), or ( h ) o£ section 4, which are liable to be redeemed within fifteen years of the date of purchase at par or a t some other fixed rate, or purchase any securities mentioned or referred to in the same divisions which are liable to be redeemed at par or at some other fixcd rate, at a price exceeding fifteen per centum above par or such other fixed rate.

(3) A trustee may retain until redemption any redeemable security which may have been purchased in accordance with this Act.

7, Every power conferred by the preceding sections shall be Discretionof trustee.

exercised according to the discretion of the trustee, but subject to

any consent required by the instrument (if any) creating the trust.

8, The preceding sections shall apply as well to trusts created Applicationof

before as to trusts created after the passing of this Act, and the preceding sections.

powers thereby conferred shall be in addition to the powers conferred

by the instrument (if any) creating the trust.

Q, (1) A trustee lending money on the security of property on Loam and invest-

which he can lawfully lend shall not be chargeable with breach of ments by trustees not chargeable as breaohea

trust by reason only of the proportion borne by the amount of the of t r u ~ t d e r certain

circumstances,

loan to the value of the property at thc time when the loan was made, if it appears to the Court that in making the loan the trustee was acting upon a report as to the vdue of the property made by a person whom he reasonably believed to be competent to give a report upon the value thereof, instructed and employed independentsly of any owner ot the property, whether such person carried on business in the locality where the property is situate or not; and that the amount of the loan did not exceed two-thirds of the value of the property as stated in the report; and that the loan was made in reliance on the report.

(2) A trustee lending money on the security of leasehold property shall not be chargeable with breach of trust only upon the ground that in making such loan he dispensed either wholly or partly with

the production or investigation of the lessee's title. (3) This

4 56" & 57" VICTORIE, No. 586.

PAR; r. (3) This section applies to transfers of existing securities a8 well ' as to new securities, and to investments made as well before as after

the commencement of this Act, except where an action or other

, proceeding was pending with reference thereto at the time of such

commencement.

Limitation of liability

for loss on improper 10. (1) Where a trustee improperly lends trust money on a mort-

invatmenb.	gage security, which would at the time of the investment have been
a proper investment in all respects for a smaller sum than that actually lent thereon, the security shall be deemed a proper in- vestment for the smaller sum, and the trustee shall only be liable to make good the sum advanced in excess thereof with interest.
(2) This section applies to investments made as well before as after the commencement of this Act, except where an action or other proceeding was pending with reference there to before such com- mencement.

PABT rr. PART 11.

VARIOUS POWERS AND DUTIES OF TRUSTEES.

Appointment of New Y'rustees.

Power of a w o i n t k	' 11, ( L ) Where a trustee,	cithcr original	or substituted, and
new trustees.

whether appointed by a Court or otherwise, ie dead or remains out of the said province for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trus-

tee for the time being, or the representatives of thc last surviving

or continuiiig trustee, may, by writing, appoint another person or other persons to be a trnstve or trustees in the place of the trustee

refusing or being unfit or being incapable, as aforesaid. dead, remaining out of the said province, desiring to be discharged, (2) On the appointment of a new trnstee- (a) The number of trustees may be increased; and ( b ) A separate set of trustees may be appointed for any part of

the trust property held on trusts distinct irorn* those rclating to any other part or parts of the trust property; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the fist-

mentioned park; and

(c) It shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where mare than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the

trust; and (4 Any

56" & 57' VICTORIW, No. 586. -

The Trustee A c t. 1 8 9 3.

(B ) Any assurance or thing requisite for vesting the trust pro- perty, or any part thereof, jointly in the persons who are PART 11.

the trustees, or solely in the new trustee, S	the case may '
require, shall be executed or done.

(3) Every new trustee so appointed, as m11 beforc as after all the trust property becomes by law or by assurance or otherwise vested in him, shall have the same powers, authorities, and discretions, and be entitled to the same remuneration (if any), and, i f of a continuing nature, and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust.

(4) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will, but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execu- tion of the provisions of this section,

(5) This section applies only if and as for as a contrary intention is not cxpresscd in thc instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained,

(6) This section applies to trusts created either before or after the commencement of this Act.

(7) Nothing in this section shall give power to appoint an executor

or	administrator.
12. (1) Where there are more than two tmstecs, if one of them Retirement of

by deed declares that he is desirous of being discharged from the trust, and if his co-tnlstees and such other person (if any) as is em- powered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, then the tl-ust~e desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be	discharged therefrom under this Act, without any new trustee being	appointed in his place.
(2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.
(3) This section applies only if and as far as a contrary intention is not expressed in the inst>rument (if any) creating the trust, and
shall have effect subject to the terms of that instrument and to any
provisions therein contained.
(4) This section applies to trusts created either before or after the commencement of this Act.

13, (1) Where a deed by which a new trustee is appointed to Vestingoftmst

perf'orm' any trust contains a declaration by the appointor to the ~ ~ ~ & $ $ ~ & ~,	effect that any estate or interest in any land, subject to the trust, or
in any chattd so subject, or the right to reco;er ahd receive any debt or other thing in action so subject, shall vest in the person or persons

who,

6 56' & 57" VICTORILE, No. 586.

The Trustee Act.- 1893.

PART	who, by virtue of the deed, become and are the trustee or trustees for performing the trust, that declaration shall, without any con- 'veyance or assig~ment, operate to vest in that person or those per- sons, as joint tenants if more than one, and for the purposes of the trust, that estate, interest, or right.
(2) Where a deed under section 1 2, by which a retiring trustee is discharged under this Act, contains such a declaration as is in this section mentioned by the retiring and continuing trustees and by the other person (if any) empowered to appoint trustees, that declaration shall, without any conveyancc or assignment, operate to vest in the continuing trustees alone, as joint tenants and for the purposes of the trust, the estate, interest, or right to which the declaration relates.
(3) This section does not extend to land under the provisions of' the Real Property Act, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner directed by or undcr Act of Parliament,
(4) For purposes of registration of the deed in thc General Registry Office thc person or persons making thc declaration shall be deemed the conveying party or parties, and the dccd shall be deemed a conveyance made by him or them undcr a power conferred by this Act.
(5) This section applies only to deeds executed after the com- mencement of this Act.

.Pzcrchase and Sale.

Power of tmateo~ for 14. (1) Where a trust for sale or a power of sale of property is

&c. B'B" se'b~aUction~ vested in trusteesl they may sell or concur with any other person in

selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by p b i i c auction or by private contract, at one time or at several times, subject to any

such condition respecting title or evidence of title or other matter as

the trustees think fit, with power to vary any contract for sale, and

to buy in at any suction, or to rescind any contract for snle and to

re-sell, without being answer ablc for any loss.

~ m ~ t e e s exercising (2) For the purpose of completing any such sale as aforesaid, the

power of sale,

empowered to convey. trustees shall have full power to convey or otherwise dispose of the

property in question, either by way of revocation and appointmefft of

uses, or otherwise, as may be necessary.

(3) This section applies only if and as far as a contrary intention

is not expressed in the instrument creating the trust or power, and

shall have effect subject to the terms of that instfhment and to the

provisions therein contained.

(4) This section applies only to trusts and powers created by an instrumen t conling in to operation after the twenty -first day of October, one thousand eight hundred and sixty-two.

15. (1) No

56" & 57" VICTORIA3, No. 586.

The Trustee Act.-1893,

15. (1) No sale made by a trustee shall be impeachcd by any

beneficiary upon the ground that any of the conditions subject to

Ger to sell mbject

to depreciating con*

which the sale was made may have been unnecessarily depreciatory,

ditiona.

unless i t also appears that the consideration for the sale was thereby

rendered inadequate.

(2) No salc made by a trustee shall, sfter the execution of the conveyance, be impeached as against the purchaser upon the ground

that any of the conditions subject to which the sale was made may

have been unnccessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee a t the time when the contract for sale was made.

(3) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid.

(4) This section applies only to sales made after the commence- ment of this Act.

16. Whcn any freehold hcreditament is vested in a married	bare trustee may
Married woman as

woman as a bare trustee she may convey or surrender it as if she	convey.
were a-feme sole.

Various Powers and Liabilities.

17. (1) A trustee may appoint a solicitor to be his agent to receipt of momy by Power to authorise

receive and give a discharge for any money or valuable consideration

banker or solicitor.

or property rcceivablc by the trnstcc under the trust, by permitting the solicitor to have the custody of, and to produce, a deed having

in the body thereof or cndorscd thereon a receipt for such money,

consideration, or property, the deed being cxecuted or thc endorsed

receipt "signed by the trustcc,

(2) A trustee shall not be chargeable with breach of trust by reason only of his having, made or concurred in making any such

be sufficient authority to the person liable to pay or give the con- appointment. The producing of any such dced by the solicitor shall

sideration, or transfer or deliver the property, for his paying, giving,

transferring, or dclivering the same to the solicitor, without thc solicitor producing any separate or other direction or authority from the trustee.

(3) A trustce may appoint an incorporated bank or a solicitor to be his agent to receive and give a discharge for any money payable to the tiustee under or by virtue of a policy of assurance, by permitting the

bank or solicitor to have the custody of and to producc the policy of

assurance with a receipt signed by the trustee, and a trustee shall not he chwgedble with a breach of trust by reason only of his having madc or concurred in making any suchwappointmont.

(4) Nothing in this section shall exempt a trustee from any liability which would have ipcurred if this Act had not been passed, in case he permits any such money, valuable consideration, or property to reniain in the hands or under the control of the

bank

8 56" & 57' VICTORIA?, No. 586.

PAW	-p-d	bank or solicitor for a period longer than is reasonably necessary to enable the bank or solicitor (& the case may be) to pay or transfer the same to the trustee.
(5) This section applies only where the money or valuable con- sideration or property is received after the commencement of this Act.
(6) Nothing in this section shall authorise a trustee to do anything which he is in express terms forbidden to do, or to omit anything which he is in express terms directed to do, by the instrument creating the trust.

Power to insure 18.

(1) A trustee may insure against loss or damage by fire any building or other insurable property, to any amount (including the amount of any insurance already on foot) not exceeding three-fourths of the full value of such building or property, and pay the premiums for such insurance out of the income thereof, or out of the income of any other property subject to the same trusts, without obtaining the consent of any person who may be entitled wholly or partly to such income.

building.

Court may authorise

expenditure or	(2) The Supreme Court may, on the application ex parte or otherwise, of a trustee, or of a beneficiary interested in trust pro- perty, authorise the expenditure by the trustce, out of the capital or income of the trust property or of the estate of a deceased
improvsmsnta,

I .

person, of such sum as the Court may think fit in repairing, reinstating, or improving the trust property or estate, and may by the same or any subsequent order authorise the trustee to raise moneys required for the purpose of such expenditure by mortgage of the trust property or estate concerned, or of any other property or estate subject to the same trusts.

(3) This section does not apply to any building or property which

a trustee is boulld forthwith to convey absolutely to any beneficiary

upon being requested to do so.

(4) 'This section applies to trusts created either before or after the commencement of this Act; but nothing in this section shall authorise any trustce to do anything which he is in express terms forbidden to do, or' to omit to do anything which he is in express terms directed to do, by the instrument creating the trust.

Power of trustees of	19, (l) A trustee of any leaseholds for lives or ycars which are
renewable lwholda

to renow and renewable from time to time, either under any covenant or contract,

moneyforthepurpose. or by custom or usual practice, may, if he thinks fit, and shall, if thereto required by any person ilaving any beneficial interest, present or future or continge~t, in the leaseholds, use his best endeavors to obtain from time to time a renewed lease of the same hereditarnents on ttre accustomed and rcasonable terms, and for that purpose may from time to time make or concur in making a surrender of the lease for the time being subsisting, and do all such other acts as are requisite: Provided that, where by the terms of the settle- ment or will, the person in possession for his life or other limited

interest

56" & 57' VICTORIE, No. 586.

The Dwtee Act.-1 893.

interest is entitled to enjoy the same without any obligation to	PABT a
renew or to contribute to the expense of renewal, this section shall not apply, unless the consent in\riting of that person is obtained to the renewal on the part of the trustee.
(2) If money is required to pay for the renewal, the trustee effecting the renewal may pay the same out of any money then in his hands in trust for the persons beneficially intcrested in the lands to be comprised in the renewed lease, and if he has not in his hands sufficient money for the purpose, he may raise the money required
by mortgage of the hereditaments to be con~prised in the renewed
lease, or of any other hereditaments for the time being subject to the uses or trusts to which those hereditaments are subject; and no person advancing money upon a mortgage purporting to be under this power shall be bound to see that the money is wanted, or that no more is raised than is wanted for the purpose.
(3) This section applies to trusts created either before or after the commencement of this Act; but nothing in this section shall authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by the instrument creating the trust.

20, (1) The receipt in writing of any trustee for any money, Powerof truataeto

securities, or other personal propcrty or effects payable, transferable, give receipts.

or deliverable to him under any trnst or power shall be a sufficient

discharge for the same, and shall effectually exonerate the person

paying, transferring, or delivering the same from seeing to the

application or being answerable for any loss or misapplication

thereof.

This section applies to trusts created either before or after

the commencexnent of this Act.	(2)
21. (1) An executor or administrator m y pay or allow any

debt or claim on any evidence that he thinks sufficient.

(2) An executor or administrator, or two or more trustees acting Power for e ~ e ~ ~ t a r.

together, or a sole acting trustee, where, by the instrument (if any) pound,	and trustee8	&c. to corn-
creating the trust, a sole trustee is authorised to execute the trusts and powers thereof, may, if tind as he or they may think fit, accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed, and may allow any time for payment of any debt, and may compromise, compound, aban- don, submit to arbitration, or otherwisc settle any debt, account, claim, or thing whatever relating to the testator's or intestate's estate or to the trust, and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things, as to him or them seem expedient, without being responsible for any loss occasioned by any act or thihg so done by him or them in good faith.

(8) This section applies only if and as far as a contrary intention

is not expressed in the instrument (if any) creating the trust, and

B-586 shall

56" & 57' VICTORIW, No. 586.

Paar rr.

*	shall have effect subject to the terms of that instrument and to the
provisions therein contained.

(4) This section applies to executorships, administratorships, and

trusts constituted or created either before or after the commencement

of this Act.

Dietribution of

estate dter notice by 22. (1) Where a representative or trustee has given notices

representative or

such as would have been given by the Court in an administration

trustee.

suit for creditors, beneficiaries, and others to send in to the repre- sentative or trustee their claims against the estate of the deceased person or against the trust property, the representative or trustee may, at the expiration of the time named in the notices, distribute the estate of the deceased person or the trust property or any part thereof amongst the persons entitled thereto, having regard only to the claims of which he then has notice, and shall uot be liable for the estate or property or any part thereof so distributed to any person of whose claim he had no notice at the time of the distribu- tion.

(2) Where a representative or trustec has reccivcd n claim or notice

of claim against the estate of a deceased person or against a trust

property, and he disputes the same, such representative or trustee may give to the person making such claim, or giving such notice, a notice in writing that such claim is disputed, and requiring such claimant either to withdraw such claim or to institute proceedings to enforce such claim within six months of the service of' such last- mentioned notice; and if such claim is not so withdrawn or prose- cuted, the representative or trustee may apply by summons in Chambers to any Judge of the Supreme Court, on affidavit setting out the facts for an order that, as against slich representative or trustce, such claim shall be absolutcly barred, and any such Judge may make such order as he shall deem just, and the same shall bind all persons whom it purports to affect.

(3) Nothing in this section shall prejudice thc right of any person to follow the estate or property or any part thereof into the

hands of any person who has received the same.

(4) A representative or trustee desirous of giving notices under this section may, on application, e z parte or otherwisc, obtain the direction of the Supreme Court, or of the Master thereof, as to what notices are proper to be given, and as to the mode of service.

Powers of two or 23. (1) Where a power or trust is given to or vested in two or

more trustees.	mare trustees jointly, then, unless thc contrary is expressed in the instrument (if any) creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being.
(2) This section applies only to trusts constituted after or created by instruments coming in to operation after the commencement of
this Act,

24. (l) Where

56" & 57' VICTORIE, No. 586.

The Trustee Act .1893.

24. (1) Where any property is held by trustees in trust for an infant, either for life or for any greater interest, and mhethex PART ir.

Powera of rmainte-

name in case of

absolutely or contingently on his attaining the age of twenty-one

;leant#,

years, or on the occurrence of any event before his attidining that age, the trustees may, at their sole discretion, pay to the infant's parent or guardian (if any) or otherwise apply for or towards the infant's maintenance, education, or benefit, the income of that property, or any part thereof, whether there is or is not any other fund applicable to the same purpose, or any person bound by law to provide for the infant's maintenance.

(2) The trustees shall accumulate all the residue of that income in the way of compound interest by investing the same, and the resulting income thereof, from time to time on securities in which they am by the instrument of trust (if any), or by law, authorised to invest trust money, and shall hold those accumuletions for the benefit of the person who ultimately becomes entitled to the property from which the same arose, but so that the trustces may at any time, if they think fit, apply thosc accumulations, or any part thereof, as if the same were income arising in the then current year.

(3) This section applies only if and as far as a contrary intention is not expressed in the instrument under which the interest of the infant arises, and shall havc cffect subject to the terms of that instrument and to the provisions therein contained.

(4) 'This section applies whether the instrument of trust comes into operation before or after the commencement of this Act.

25. A trustee acting or paying money in good faith, under or in pursuance of any power of attorney, shall not be liable for any such

Exoneration of

trustees in respect of

certain powers of

act or payment by reason of the fact that at the time of the pay-

attorney.

ment or act the person who gave the power of attorney was dead or had done some act to avoid the power, if this fact was not lmown to the trustee at the time of his so acting or paying: Provided that nothing in this section shall affect the right of any person entitled

to the moncy against the person to whom the pay*ent is made, and

that the person so entitled shall have the same remedy against the person to whom the payment is made as he would have had against the trustee.

26. A trustee shall, without prejudice to the provisions of the Implied indemnity of

instrument (if any) creating the trust, be chargeable only for money,	trustees,
stocks, funds, and securities actually received by him, notwithstand- ing his signing any receipt for the sake of conformity, and shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any
banker, broker, or other person with whom any trust moneys or
securities may be deposited, nor for the insufficiency or deficiency of any stocks, funds or secilrities, nor for any other loss, unless the same
happens through his own wilful default, and may reimburse himself,
or pay or discharge out of the trust premises, all expenses incurred

in or about the cxecution of his trusts or powers. -

PART

56" & 57" VICTORIfi, No. 586.

The Trustee Act.-1893.

PART 111.

POWERS OF THE COURT.

Appointment of New Trustees and Vesting Orders.

Power of the Court	27. (1) The Supreme Court may, whenever it is expedient to appoint a new trustee or new trustees, and i t is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order for the appointment of a new trustee or new trustees, cither in substitution for or in addition to any existing trustee or trustees, or although there is no trustee. IL particular, and without prejudice to the generality of the foregoing provision, the Court may make an order for the appointment of a new trustee in substitution for a trustec who is convicted of treason or felony, or has been adjudicated insolvent or made an assignment or composi- tion or arrangement with his creditors under any Act in force in that behalf, and may remove such last-rncntioned trustee.
tsustees,
(2) An order under this section, and any consequential vesting order or conveyance shall not operate f~lrther or otherwise as a dis- charge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(3) Nothing in this section shall give power to appoint an executor or administrator.
land.

to appoint new

Veeting order a8 to 28. In any of the following cases, namely :-

r. Where the Supreme Court appoints or has appointed a new

trustee:

11. Where a trustee entitled to or possessed of any land, or en- titled to a contingent right therein, either solely or jointly with any other person--

(a) Is a lunatic or person of unsound mind; or

( 6 ) Is an infant; or

-	( c ) Is out of.the jurisdiction of the Supreme Court; or
(d) Cannot be found:

111. Where it is uncertain who was the survi\.or of two or more

trustees jointly entitled to or possessed of any land or

entitled to a contingent right therein:

rv, Where as to the last trustee known to have been entitled to

or possessed of any land, or entitled to a contingent right

therein, it is uncertain whether he is living or dead:

v. Where there is no heir or representative to a trustee who was entitled to or possessed of land or entitled to a contingent right therein and has dicd intestate as to that land, or

where it is uncertain who is the heir or representative

or

56" & 57' VICTORIE, No. 586.

The Trustee A c t. 1 8 9 3.

or devisee of a tmstee who was entitled to or possessed of land or entitled to a contingent right therein and is dead: and

VI. Where a tmstee jointly or solely entitled to or possessed of

any land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or a release of the right, to convey the laud or to release the right, and has wilfully

or neglected to convey the land or release the right for twenty-eight days after the date of the require- ment:

the Supreme Court may make an order (in this Act called a vesting order) vesting the land in any such person in any such manner and for any such estate as the Court may direct, or releasing or disposing of the contingent right to such person, as the Court may direct: Provided that-

(a) Where the order is consequential on the appointment of a new trustee the land shall be vested for such estate as the Court may direct in the persons who on the appointment are the trustees; and

( b ) Where the order relates to a trustee entitled jointly with

another person, and such trustee is out of the jurisdiction of the Supreme Court or cannot be found, the land or right shall be vested in such other person, either alone or with some other person.

29. Where any land is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence,	Contingent rights of
unborn trustees,
would, in respect thereof, become cntitled to or possessed of the land on any trust, the Supreme Court may make an order releasing
the land from the contingent right, or may make an order vesting

in any person the estate to or of which the unborn person or class	of unborn persons ~vould,	on coming into existence, be entitled or
possessed in the land.

30. Where any person entitled to or possessed of land or en- Vesting order in

titled to a contingent right in land, either solely or jointly with any g"" p infant mortgagee.

of mnveyance

other person, by way of sccurity for money, is a lunatic, or a person of unsound mind, or an infant, the Supreme Court may make an order vesting or releasing or disposingof the land or ri& in like manner as in the case of a trustee who is a lunatic, a person of unsound mind, or an infant,

31. Where a mortgagee of land has died without having entewd v c ~ t i q ~ d e r ifi

into the possession or into the receipt of the rents and profits thereof, f ' a ~ e ~ f ~ ~ ~ ~ ~ ~

and the money due in respect of the mortgage has been paid to a Jrnortgagee.

person entitled to receive the same, or that last-mentioned person

consents to an order for the re-conveyance of the land, then the

Supreme Court may make an order vesting the land in such person

OF

E 4 56" & 5 7 O VICTORIE, No. 586.

The Trustee Act .1893.

. , 1 or persons in such manner and for such estate as the Court may direct in any of the following cases, namely :-

(a) Where an heir or representative or devisee of the mortgagee

is out of the jurisdiction of the Supreme Court, or cannot

be found:

( b ) Where an heir or representative or devisee of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land, has stated in writing that he will not convey the same, or does not convey the same for twenty-eight days next after a proper instru- ment conveying the land has been tendered to him by or

on behalf of the person so entitled:

(c) Where i t is uncertain which of several devisees of the mort- gagee was the survivor:

(d) Whcre i t is uncertain as to the survivor of several devisees of

the mortgagee, or as to the heir or' representative of thc

mortgagee, whether he is living or dead: and

(e) Whcre there is no heir or representative to a mortgagee who has died intestate as to the land, or where the mortgagee has died and i t is uncertain who is his heir or represen- tative or devisee.

ve,ting order oonse- 32. Where any Court gives a judgment, or makes an order direct-

for sale or mortgage judgment ing the salo or mortgage of land, every person, whether under dis-

of land.

ability or not, who is entitled to or posscsscd of the land, or entitled to B contingent right therein, and is party to the action or proceed- i n g, . ~ ~ othcrwisc bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustcc within the meaning of this Act; r,nd the Suprcmc Conrt may, if it thinks expedient, make an order vesting the land, or any part thereof, for such estate as that Court thinks fit in, the purchaser or mortgagee, or

in any other person. -

In what caaea the

heir, repro~entative, 33. Where a person having contracted in writing to sell land

or of a person, dies without having conveyed the land in pursuance of his contract,

;pl:,";,c;;F2dM and the consideration for the salo has been paid or satisfied in his life-

a trustee time, or after his dcccase, or the person entitled to receive the con-

within this A&.	sideration money or such part thereof as mrty remain unsatisfied, is willing to receive the same,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 so agreed to be sold to demand specific performance of such contract, and the Court shall be satisfied that the only impedimeilt to
the performance thereof arises from the fact that the legal estate in
theland has become vested in an heir, representative, or devisee of the deceased vendor, who is an infant, or lunatic, or of unsound mind, the Supremo Court may make an order declaring the heir, representative, or devisee, as thc case may be, of the deceased vendor to be a trustee of the land contracted to be sold, and such heir, representative, or devisee shall thereupon be deemed to be a trustee thereof within

the

56" & 57' VICTOKIE, No. 586. .l5

The Trustee A c t. 1 8 9 3.

the meaning of this Act, and at the same time or subsequently the	PART	rrr.
said Court may order that the land shall vest in such person in ' such manner and for such estate as the said Court may direct, and may give directions as to the payment and satisfact& of any un- paid or unsatisfied purchasemoney.

34. W here a, judgment is given for the specific performance of a Vesting order oonse

contract concerning any land, or for the partition or sale in lieu of I uential on judgment or specific per-

partition, or exchange of anv land, or generally where any judgment formance, &C.

is given for the convcysncc of anv land, either in cascs arising out

of the doctrine of election or oiherwise, the Supreme Court may

declarc that anv of the partics to the action arc trustccs of the land,

or any part thereof, within the meaning of this Act, or may declare

that the interests of ~mbo'n persons who might claim undcr any

party to the artion, or uncinr the will or voluntary settlement of any

person deceased who was during his lifetime a party to the contract

or transactions concerning which the judgment is given, are the

interests of persona who, on coming into existence, would be trustees

within the meaning of this Act; and thereupon the Supreme Court

may make a vesting order relating to the rights of those persons,

born and unborl~, as if they had been trustees.

in the case of a vesting order consequential on the appointment of order. 35, A vesting order under any of the foregoing provisions shall, Effecb of yesting

a new trustee, have the same effect us if the persons who before the

appointment were the trustees (if any) had duly executed all proper conveyances of the land for such estate as the Court directs, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate as the Court directs, a i d shall in cvcry othcr case have the samc cffcct as if the trustee, or othcr person, or description, or class of' persons to whose rights or supposed rights the said provisions respectively

relate, had been an ascertained and existing person of full capacity,	and had cxccuted a conveyancc or release to the effect intended by
the order.

36. In all cases where a vesting order can be made under any of h e r to appoint

the foregoing provisions the Supreme Court may, if it is more con- pereon t o convey.

venient, appoint a person to convey thc land or rcleasc the contin-

gent right, and a conveyance or release by that person in conformity

with the order shall have the same effect as an order under the

appropriate provision.

37.	(1) I n any of the following cases, namely :-	Vesting order8 M to
stock and chosee in

I. Where the Supreme Court appoints or has appointed a new action.

trustcc: and

11. Where a trustee entitled alone or jointly with another person

to stock or to a chose in action-

(4 1s

16 56" & 57° VICTORIW,' No. 586. -

The Trustee A c t. 1 8 9 3.

PAXT rrr. (a) Is a lunatic, a person of unsound mind, or an in-

fan t; or

( b ) Is out of the jurisdiction of the Supreme Court; or

(c) Cannot be found; or

( d ) Neglects or refuses to transfer stock or receive the

dividends or income thereof, or to sue for or recover a chose in action, according to the direc- tion of the person absolutely entitled thereto, for twenty-eight days next after a request in writing

has been made to him by the person so entitled; or

( e ) Neglects or refuses to transfer stock, or receive the dividends or income thereof, or to sue for or recover a chose in action for twenty-eight days next after an order of the Supreme Court for that purpose has becn served on him; or

3 I I. Where i t is uncertain whether a trustcc cntitled, alone or jointly with another person, to stock or to a chose in action is alive or dead:

the Supreme Court may make an order vesting the right to transfer or call for a transfer of stock or to receive the dividerits or income thereof, or to sue for or recover a chose in action in any such person

as the Court may appoint: Provided that-

(a) Where the order is consequential on the appointment by the

Court of a new trustee, the right shall be vested in the persons who, on the appointment, are the trustees: and

(6) Where the person whose right is dealt with by the order was entitled jointly with another person, the right shall bc vested in that last-mentioned person, either alone or jointly with any other person whom the Court rnay appoint.

section the Court may, if it is more convenient, appoint some proper (2) In all cases where a vesting order can be made under this person to make or join in making the transfer.

(3) The person in whom the right to transfer or call for the transfer of any stock is vested by an order of the Court under this Act may transfer the stock to himself or any person, according to the order; and all companies shall obe): every order under this section according to its tenor.

(4) After notice in writing of an order under this section, i t shall

not be lawful for any company to transfer any stock to which the

order relates, or to pay any dividends thereon, except in accordance

with the order.

(5) The Supreme Court may make declarations and give direc-

tions concerning the manner in which the right to any stock or

chose in action vested under the provisions of this Act is to be

exercised.

(6) The

56" & 5 7 O VICTORIE, No. 586.

(6 ) The provisions of this Act as to vesting orders shall apply to P a ~ In*

shares in ships registered under the Acts relating	to merchant
shipping as if they were stock.

38, Where a person entitled alone or jointly with another Vestin$ order as to stock in oases of

person to stock or a chose in action by way of security for money is or

a mortgagee. a transfer of thc stock, or receive the dividends or income thereof, or to sue for or recover the chose in action in like manner as in the case of a trustee who is a lunatic, a person of unsound mind, or an infant.

lunatic, or a person of unsound mind, or an infant, the Supreme

39. (1) An order under this Act for the appointment of a new Persons entitled to

trustee, or concerning any land, stock, or chose in action subject to ,,d,.	apply for vesting
a trust, may be made on the application of any person beneficially interested in the land, stock, or chose in action, whether under disability or not, or on the application of any person duly appointed trustee thereof.
(2) An order under this Act concerning any land, stock, or chose in action subject to a mortgage may be made on the application of any person, whether under disability or not, who is beneficially in- terested, in equity or otherwise, in the land, stock, or chose in action,
or of any person interested in the money secured by the mortgage.

40. Every trustee appointed by a Court of competent jurisdiction Powers of new

shall, as well before as after the trust property becomes by law, or Court.	trustees appointed by
by assurance or otherwise, vestcd in him, have the same powers,
authorities, and discretions, and rnav in all respects act, as if he had been originally appointed a trustce by the instrument (if any) creat- ing the trust.

41. The Supreme Court may order the costs of and incident to Power to charge costs

any application for an order appointing a new trustce, or for a on tmst estate.

vesting order, or for an order releasing or disposing of a, contingent right, or of and incident to any such order, or any conveyance or transfer in pursuance thereof, to be paid or raised out of the land or personal estate in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the Court rnay seem just.

42, The powers conferred by this Act as to vesting orders may Trustees of oharitiea.

be exercised for vesting any land, stock, or chose in action in anv trustee of a charity or society over which the Suprenle Court would have jurisdiction upon action duly instituted, whether the appoint- ment of the trustee was made by instrument under a power or by the Supreme Court under its general or statutory jurisdiction.

43. Where a vesting order has been made as to any land under Orb made up06 certain allegations to

this Act, or under any Act relating to lunacy, founded on an allega b e conclusive

tion of the infancy or personal incapacity of a trustee, representative e ~ ~ ~ e n a e.

C-686 O r

18 56" & 57" VICTORIK, No. 586.

l

The Trustee A c t. 1 8 9 3.

~ A B T m- or mortgagee, or on an allegation that a trustee or the heir or representative or devisee of a mortgagee is out of the jurisdiction of the Supreme Court, or cannot be found, or that it is uncertain which of several trustees or which of several devisees of a mortgagee was the survivor, or whether the last trustee, or the heir or represen- tative or last surviving devisee of a mortgagee, is living or dead, or on an allegation that any trustee or mortgltgee has died intestate without an heir, or has diid and it is not known who is his heir or representative or dcvisec, the fact that the order has bcen so made shall be conclusive evidence of the fact alleged in any Court upon any question as to the validity of the order; but this section shall not pre- vent the Supreme Court from directing a reconveyance, or a redis- position of any contingent right, or the payment of' costs occasioned by any such order if improperly obtained.

Paymerzt into Court by Dustees and Mortgagees.

Payment into Court	M, (1) Trustees or mortgagees, or the majority of	trustees or
by trustees and

mortgagees.	mortgagees, having in their hands or under their control money or securities belonging to a trust, or in respect whereof a trust has arisen by implication or construction of law, may, on filing an affidavit shortly describing the instrument under or in consequence of which the trust arises, according to the best of their knowledge and belief, or if there be no such instrument, then shortly setting out the facts of the case, pay the money or securities into the Supreme Court; and the same shall, subject to rules of Court, be dealt with according to the orders of the Supreme Court, which may also order
the administration of the trusts in respect of such money or securities. (2) The receipt or certificate of the proper officer shall be a suffi-
cient discharge to trustees for the money or securities so paid into
Cow t.
(3) Where any moneys or securities are vested in any persons as trustees or mortgagees, and the majority arc desirous of paying the same into Court, but the concurrence of the other or others cannot he obtained, the Supreme Court may order the payment into Court
to be made by the majority without the concurrence of the other or others; and where any such rnorieys or securities are deposited
with any banker, broker, or other depositary, the Comt may order
payment or delivery of the moneys or securities to the majurity of the trustees for the purpose of payment into Court, and every transfer, payment, and delivery made in pursuance of any such order shall. be valid and take effect as if the same had been made on the authority or by the act of all the persons erititled to the moneys and securities so transferred, paid, or delivered.

Limitation of Proceedings.

A ~ ~ l i c d o n o f statutes

of limitation to 45. Subject to the provisions of th6 next following section-

erpress truete.

I. Where any land or rent, within the meaning of any statute of

limitations, is vested in a trustcc on any express trust, the

right

56" & 57' VICTORIE, No. 586.

The Trustee Act.-1893.

PART

right of the beneficiary or any person claiming through him

-

to bring an action against the tmstee or any person claiming through him, to recover the land or rent, shall be deemed to h&e first accrued, according to t h e meaning of any statute of limitations, at, and not before, the time at which the land or rent has been conveyed to a purchaser for s valuable consideration, and shall then be deemed to have accrued only as against that purchaser and any person claiming through him:

Ir. No claim of a beneficiary against his trustee, in respect of any property held on an express trust,, or in respect of any breach of an cxprcss trust, shall, subject to the next following sub-section, be barred by any statute of limi- tations:

Irr. No action or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent and secured by an express trust, or to recover any arrears of rent or of intcrcst in respect of any sum of money or legacy so charged or payable and so sccurcd, or any damages in respect of such arrears, except within the time within which thc same would be recoverable if there were not any such trust.

46. (1) I n any action or other proceeding against a trustee or A~~l;cationofstatutea of limitations to

any person claiming through him, except where the claim is founded tmstee,

on any fraud or fraudulent breach of trust to which the trustee was

party or privy, or is to recover trust pi40perty, or the proceeds thereof

still retained by the trustee, or previously rcccived by the trustee

and converted to his use, the following provisiuns shall apply :-

( a ) All rights and privileges conferred by any statute of limita-

tions shall be enjoyed in the like manner and to the like

him had not been a trustee or person claiming through extent as they would have been enjoyed in the action or other proceeding if the trustee or person claiming through him.

(6) If the action or other proceeding is brought to recover money or other property, and is one to which no existing statutc of limitations applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead this Act as a bar to the action or other proceeding, in the like manner and to the like extent as he would have been entitled to plead any statute of liinitations in an action for money had and received; and so that this Act shall run against a married woman entitled in posses- sion for her separate use, whether with or without a restraint upon anticipation, but shall not begin to run against any beneficiary unless and until the interest of such beneficiary is an interest in possession.

(23 No

56" B 57° VICTORIE, No. 586.

The Dustee Act. - l89 3.

(2) No beneficiary, as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if He had brought the action or other proceeding in which the judgment or order was obtained and this section had becn pleaded.

(3) This section shall apply only to actions or other proceedings begun after the commcnccment of this Act, and shall not deprive	,
any executor or administrator of any right or defence to which he
was then entitled under any then existing statute of limitations.

Miscellaneous.

Power to give 47, Where in any action the Supreme Court is satisfied that

judgment in absence

of a trustee.

diligent search has been made for any person who, in the character of trustee, is made a defendant in Ay action, to serve him with a process of the Court, and that he cannot be found, the Court may hear and determine the action, and give judgrnen t therein against that person in his character of a trustee, as if he had been duly served, or had entered an appearance in the action, and had also appeared by his counsel and solicitor at thc: hearing, but without prejudice to any interest he may h a w in the matters in question in the action in any othcr ch.aractcr.

Trustee to have power

to 8ell or convey in 48. (1) Where a trustee has, by the instrument creating the

certain cssea.	trust, power, subject to thc direction, request, or authority of any person, to sell, convey, assure, mortgage, or othcrwise deal with pro-
perty, and such person is dead, of unsound mind, a lunatic, under disability, or absent from the province, the Supreme Court may
authorise the trustee to sell, convey, assure, mortgage, or otherwise deal with the property as if silch direction, request, or authority had been given, but the power conferred by this section shall not be exercised so as to injuriously affect any beneficial interest of such
person.
(2) This section applies to tnuts created either before or after the commericement of this Act. .

(3) This section shall authorise the Supreme Court to confirm any

sale, conveyance, assurance, mortgage, or other dealing heretofore

made or executed by such trustee i n a n y case in which the Court, under this Act, would have authorised the same had it not been made or executed.

Power to ssnction

aale of land or	49. ( I ) Where a trustee is for the time being authorised to dispose of land by way of sale, exchange, or partition, the Supreme Court may stmction his so disposing of the land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of the minerals, or may sanction his so disposing of the minerals, with or without the said rights or powers, separately from the residue of the
minerals seperatcly.
land. (2) Anv

56" & 57' VICTORLE, No. 586. %II

(2) Any such trustee, with the said saGtion previously obtained, may, unless forbidden by the instrument crcating the trust or direction, from time to time, without any further application to the Court, so dispose of any such land or minerals. PART 111.

(3) Nothing in this section shall derogate from any power which

a trustee may have under	The Settled Estates Act, 1880," or other-
wise.

50. (1) Whcrc a trustee commits a breach of trust at the instiga- f irer tomke beneEcia y indemnify

for breach of trust.

tion or request or with the consent in writing of a beneficiary, the beneficiary may be married woman entitled for her separate use and restrained from anticipation, make such order as to the Court seems just for impounding all or any part of the interest of the beneficiary in the trust estate, by way of indemnity to the trustee or any person claiming through him.

(2) This section shall apply to breaches of trust committed as well before as after the commencement of this Act, but shall not apply so as to prejudice any question in an action or other proceeding which is pending at the commencement of this Act.

PART IV. PART IT.

SPECIAL PROVISIONS AS TO APPOINTMENT OF

NEW TRUSTEES.

51. This part of this Act is permissive only, and trustees may be Thisparl to be

appointed and trust estates may be transferred, conveyed, and permissive.

assigned as if this part of this Act had not been passed.

52. This part of this Act shall not apply to trust estates held Applicationofthis

upon any trust created by an instrument expressly forbidding the P'rt.

application of this part of this Act; but, except as provided by this

section, this part of this Act shall apply to all trust estates.

53. In the interpretation of this part of this Act the following Interpretation.

words shall have the following meanings: -

Trust estates " sha811 include real and personal estate of every

description held upon trust:

Appointment of new trustees " shall include every appointment of new trustees, and whether such new trustees are to act solely or jointly with any old trustees:

Real Property Act " shall include " The Real Property Act,

1886," and any Act amending the same or substituted

there for.

64, Any

56' & 57' VICTORIA, No. 586.

The k t e e Act.--1893.

64, Any appointment of new trustees, if signed by the persons

Fan of appointment

entitled to exercise the power of appointment and by the new

of new twtee.

trustees, and attested in manner prescribed by the Real Property

Act for the attestation of instruments, and made in the form or to

the effect contained in the Third Schedule hereto, or as near thereto

as circumstances will permit, shall be sufficient and valid and

effectual to all intents and purposes, so far as regards the form and

mode of execution and attestation thereof.

Extenaim of power

, 65. Any power of appointing new trustees vested in any persons within the province, jointlv with any persons absent therefrom, and who shall have been cont~nuonsly absent therefrom for at least one year then immediately preceding, may be exercised bv such first- mentioned persons solcly as if such power were exclusively vested in them, and such power s h l l extend to authorise the appointmerit of new trustees in the places of any trustees absent from the province, and having been continuously absent therefrom as afore- said, and such trustees on any appointment of new trustees in their places shall cease to be trustees.

of appointing new

trustees.

Appointment of new

trustees may be 56. On any appointment of new trustees, a memorandum of such

registered.

appointment may be registered in the General Kegistry Ofice, or in

the Lands Titles Registration Office, at Adelaide.

Registration to vest

eatatas in new	57, On the registration of any memorandum of the appointment and the trust estates held upon the trusts to which such new trustees
trustees.	of new trustees, such trustees shall be deemed to be duly appointed,
are appointed shall, without any conveyance, transfer, or assignment,
vest in the new trustees, either solely or jointly with the old trustees, as the case mav require, for ali the estate and interest of the old trustee% therein; subject to the trusts affecting such trust estates then subsisting, and capable of taking effect: Provided that-

I. I n order to affect any land not held under the provisions of

the Real Property Act, the memorandum shall be regis-

tered in the General Registry Office:

11. I n order to affect any land held under the provisions of the Real Property Act, the memorandum shall be registered in the Land Titles Registration Office, and the Registrar- General shall enter in the register book a memorial of such

memorandum, I

Registered pro- 68, 1Jpon the entry in the register book of the memorial pro-

prietors.	vided for by sub-division 1 1. of the preceding section, the persons in
whom the trust estates shall vest pursuant to the said section shall be the registered proprietors thereof for all the purposes of the
Real Property Act.
power of disposition

Registration with 59. Whenever any land is brought or dealt with under the pro-

20 leaser number of	visions of the Real Property Act, the application or instrument
joint owners.	affecting the same may require the registration consequent thereon,

if

56" & 57' VICTORIE, No. 586.

The %stet? Act.1893.

if in favor of two or more persons, to be made with the addition of Phm

the words with power of disposition to any" less number of '

'' registered proprie~ors " to be sp&ifiad in such aiqdication or instru-

ment, and thereupon the Regist.rar-General shall include in the registration the words desired, and thereafter, whilst such regis- tration shall continue, the number of registered proprietors so speci- fied whilst registered with others as joint owners may deal with and dispose of the registered estate or interest as if they were rcgistered as sole proprietors thereof.

60. Every memorandum of the appointment of new trustees prc-	Form of memorandum
of appintment of

sented for registration pursuant to this part of this Act shall be in

new tr~lstee.

the form contained in the Fourth Schedule hereto, and shall contain

the particulars therein referred to.

61. No memorandum of the appointment of new trustees shall	Verification of
memorandum.

be received for registration unless the contents thereof shall be verified by affidavit or declaration accompanying such memorandum

in the forrrl contained in the Fifth schedule hereto. and made by

the persons entitled to exercisc and exercising thc power by which the new trustccs arc appointed, or, if such persona number more than three, by any three of such persons. Such affidavit or declara- tion shall for a11 purposes be primti Jkcie evidence of the truth of the statement containcd therein.

62. When a power of appointing new trustees is cxcrcisable and	Verification of memo-
randum in special

exercised by any meeting or body of persons by resolution or voting,	C880.
the affidavit or declaration required to be made by the preceding section may be made by auy three persons present at the exercise of such power, of whom the chainnan or parson presiding shall be one.

63. Nothing in this part of this Act containcd, or thereby implied	powers of
Preservation of

or to be done i n pursuance thereof, shall be construed to affect the	Registrar-Ueneral.
titlc of any registered proprietor with notice of any trust, or other-
wise to limit the right of any registered proprietor to deal with thc	estate or interest of which hc is registered proprietor for all the pur-
poses of the Real Property Act, as absolute owner, or to defeat, limit, or prejudice any power or discretion rested in the Registrar- General under the Real Property Act, but all such powers and discretions may be exercised by the Registrar-Gneral with reference to proceedings under this Act; and for the purpose of such proceed- ings this part of this Act shall be incorporated with the Real Property Act, and all persocs shall be subject to the provisions thereof.

or to be done in pursuance thereof, shall release any trustee &o& any liability of trustee. 64, Nothing in this part of this Act containcd, or thereby iluplieil Preservation of

Liability for any breach of trust.

65, I t shall be sufficient if an affidavit or declaration under sec- Falseddavit or

tion 61 shall purport to be made under The Trustee Act, 1893," declPratiOn.

and any person wilfully making a false statement in any such affidavit or declaration shall be guilty of perjury. PART

$6" & 57" VICTORIE, No. 586.

The Trustee Act.1893.

P a r v. PART V.

MISCELLANEOUS AND SUPPLEMENTAL,

C~mmhian -W=- $$.

Upon any petition being presented under this Act to the Supreme Court concerning a person of unsound mind, the Court may direct a commission in the nature of a writ de lunatico inquirendo to issue as to such person. and may postpone making an order on such petition until after: the return to the commission.-

ing pemn of llnflollnd mmd,

of Act in

addition to mpealed $7* The provisions of this Act are in addition to those of any

plcte,	enactment not hereby repealed.
Applimtione t ~ r e s

under Bottled Eetaterr 68, (1) All the powers and provisions contained in this Act with

A C ~ of pmhion.	reference to the appointment of new trustees, and the discharge and
fOappo"ltment of
tmtees.	retirement of trustees, are to apply to and include trustees for the purposes of " The Settled Estates Act, 1880," whether appointod by the Court or by the settlement, or under provisions contained in the settlement,
(2) This section applies and is to have effect with respect to an appointment or a discharge and retirement of trustces taking place before as well as after the commencement of this Act.
(3) Thiv section is not to render invalid or prejudice any appoint- ment or any discharge and retirement of trustees effected before the
passing of this Act,

D- of IWVW-

sionary intereat.

69. (1) After the passing of this Act, a married woman, whether married after the passing of this Act, or at any other time, may, without the concurrence of her husband, dispbse of every future or reversioiiary interest, and every possibility of an interest in personal estate, including leaseholds, chattels real, and choses in action to which any person in trust for her, or for her husband in

her right, or to which she or her husband in her right, is or may be

entitlgd, as fully and effectually as she could ddsif she were- not under c~verture," and whether s ~ k h interest shall be vested or con-

accrued to her after the passing of this Act, or at any other time, or tingent, and whether her title to such interest or possibility has

under or by virtue of any deed or other instrument executed after

the passing of this Act or at any other time.

(2) After the passing of this Act a married woman, whether married after the passing of this Act or at any other time may, by deed unacknowledged and without the concurrence of her husband, release or extinguish any power which may be vested in or limited or reserved to her, and also release or extinguish her right or equity to a settlement in any personal estate, including leaseholds, chattels, real, and choses in action, as fully and effectually as she could do if she were a feme sole.

(3) The powers of disposition given to a married woman by this section shall not interfere with any power which, independently of this section, may be vested in or limited or reserved to her so as to prevent her from exercising such power in any case, except so far as

'IY

56" & 57' VICTORIW, Na. 586. -- .- - - -. -- -P P --p

The Trustee Act.-1893.

by any disposition made by her under this eection she may be

PAW v.

prevented from so doing, in consequence of such power having been

suspended or extinguished by such disposition.

(4) Nothing in this section before contained shall extend to any interest in personal estate to which a married woman is or may be entitled, in so far as such interest is subject to a restraint upon her anticipating or alienating the same.

70. (1) For the purposes of section 64 of The Administration Amendment of Administration and

and Probate Act, 1891," the word " owner," in a,ddition to the inter- pmbate	1891
pretation put thereon by section 67 of the same Act, shall mean and include any person (including a married woman) seized or possessed of or entitled to any estate or interest in land as defined by the said section 67 (and as to a married woman whether for her separate use or as her separate property or otherwise) upon trust or by way of security for money.
(2) The word L( beneficial " is hereby excised from the said section 67, and the following words are hereby added to the same section at the end thereof, that is to say, '' or to the heir-at-law of the person who was, within the meaning of the interpretation clause of the Statute 3 and 4, William IV.,. c. 106, entitled c An Act for the Amendment of the Law of Inheritance,' the purchaser of such estate or interest in land."

71. Prorertv vested in any person on trust, or by way of mort- Trust estates not

gage, shall not, in case of that person becoming a convict within the becoming a conl.iot.

affected by trustee

meaning of Act No. 25 of 1874, to abolish forfeitnres for treason and felony, and to otherwise amend the law relating thereto, vest in any such curator as may be appointed under that Act, but shall remain in the trustee or mortgagee, or survive to his CO-trustee or descend to his representative, as if he had not become a convict: Providcd thgt this enactment shall not affect the title to the property

or mortgagee. so far as relates to any beneficial interest therein of any such trustee 72, Where a person, after the commencement of this Act dies Escheat of realeetate.

intestate in respect of real estate consisting of any estate or interest legal or equitable in an incorporeal hereditament, or of any equitable estate or interest in a corporeal hereditament, whether devised or not to trustees by the will of such person, the law of escheat shall, in any case where such person shall not have left anyone entitled to suweed to such estate or interest, apply in the same manner as if the estate or interest were a legal estate in corporeal hercditaments.

73. (1) Where in any proceeding. ex parte or otherwise, it appears Power of court to e e ~. interest of Crown in

to the Supreme Court that Her ~ a j e s t ~ is entitled to any heredita- real e8hte.

ment, corporeal or incorporeal, or to any estate, legal or equitable, therein, the Court may, on the application or with the consent of the Attorney-General of the said province, notwithstanding that no office has been found and no commission issued, order a sale of

D-586 the

56" & 57' VICTORIS, NO. 586.

The Trustee Act.--1893.

PUT

the hereditament, estate, or interest; and the net proceeds of such sale, or such portion thereof as represents the interest of IIer Majesty, shall be paid to the Treasurer of the said province for the public revenue thereof.

(2) The Supreme Court on any such sale may make an order for

the Public Trustee to convey the hereditament, estate, or interest to

or vesting the same in the purchaser.

(3) Any money paid to the Treasurer under this section shall be subject to the provisions of section 104 of c c The Administration and Probate Act, 1891," and fbr the purposes of such section shall be deemed to have been paid to the Treasurer under section 103 of the same Act.

Power to waive right

of Crown in certain

74. (1) Wherc a person dies intestate in respect of land and without leaving anyone er, titled to succeed thereto, whether his! estate or interest therein is legal or equitable, and application is made to the Governor for the waiver of any right of Her Majesty in respect of such intestacy in favor of any person to whom, or to a, trustee for whom, Rcr Majesty wodd, if Her Majesty's title had been duly proved by inquisition, have power to grant such land, the Governor may, by warrant under his hand, authorise the waiver of such right on such terms, whether for the payment of money or otherwise, as may be specified in the warrant; and the Public Trustee may, in pursuance of such warrant, convey to the person in whose favor the waiver is made the right of Her Majesty so waived,

cases.

(2) If at any time within two years after such conveyance any

person claiming an estate or interest in or to the said land applies

by petition to the Supreme Court for an annulment of the said

conveyance, and proves that Her Majesty had not the right which the Governor purported to waive, the Court may annul the con-

veyance. e

thereof, have the same effect as a grant from Her Majesty after office (3) If the conveyance be not SO annulled i t shall, as from the date found, and every person bringing an action to establish any claim to

such real estate, or any part thereof or interest therein, shall be in the same position nnd have the same rights as if he were traversing such office found.

. (4) If the conveyance be not so annulled the Supreme Court may

as to land under the provisions of the Real Property Act, on the

application of the person to whom the conveyance shall have been made, or any person claiming through or under him, make an order vesting any estate or interest in the land in any person who shall

appear to be entitled thereto.

Definition of intes- 75. Where any beneficial interest in real estate or land of a.

hey. deceased person, whether the estate or interest of such deceased person therein was legal or equitable, is owing to the failure of the objects of the devise or other circumstances happening before or after the death of such person in whole or in part not effectually

disposed

56" & 57" VICTORIE, No. 586.

The Trustee A c t. 1 8 9 3.

disposed of, such person shall be deemed for the purposes of this P*" v~

pilit of this Act to have died intestate in respect of such part of the	1
said beneficial interest as is ineffectually disiosed of.

76, The Registrar-General shall, on receiving any vesting order Registration of

or transfer made in pursuance of an order of the Supreme Court ,,,,,,.

veeting order or

under this Act of land under the provisions of the Real Property Act, register the same by making an cntry thereof in the register book, and thereupon the person in whose favol: such vesting order is made, or the transferee, shall be the registered proprietor of the l a d, and the Registrar-General may register any such vesting order or t ransf~r without requiring the production of the duplicate certi- ficate or other instrument of title.

77, Any person entitled to apply for an order of the Supreme Court under this Act may npply by summons or npon petition, and may

Ptrrties entitled ma

apply to the court ty

summons or petition.

give evidence, by affidavit or btlmwise, in support of such summons or petition, and may serve such person or pcrsons with notice of the application as he may be deemed entitled to service thereof. Upon hearing the application the Court may either dispose of the matter in the first instance, or may direct a reference to the Master to inquire into any facts which require investigation, or may direct the application to stand over unt'il the right of the applicant shall have been declared in a suit instituted for that purpose, or to enable the applicant to adduce evidence, or for further consideration, or to enable notice or any further notice of the application to be served upon any person, and may deal with the applicant, and may make such order with respect to costs as shall seem just,

78, Sections 63 and 9'3 of " The Administration and Probate Act, 1891," apply to trustees as defined by this Act, and section 76

Sections G3 and 99 of

Administration and

Probate Act, 1801, to

of this Act shall extcnd to applications under cither of the same

apply tn trustees

sections, but without limiting the powers of the Supreme Court,

under this Act, &c.

apart from the said section 76, with regard to such applications.

W hen in any action or matter, either by the evidence adduced

hacaU".

Powcr to make order

79.

thercin, or by thc -admission of the parties,- or by a report of the to the Supreme Court to be sufficiently proved, the Court may, either upon the hearing of the action or any petition or motion in

the action or matter, make such order under this Act.

80. This Act, and every order purporting to be made under this Indemnity.

Act, shall be a complete indemnity to all companies and persons for any acts done pursuant thereto; and i t shall not be necessary for any company or person to inquire concerning the propriety of thc! order, or whether the Court by which it was made had jurisdictioii to make the same.

81, Notwithstanding the provisions of '' The Real Property A C ~ to ~pply to ~ e d

Act, 1886," this Act shall apply to land sul~jeot to the provisions of Property

such Act, but only to the extent ilecessary for carrying out the

purposes of this Act. 82, 111

$8 56" & 57' VICTORIE, No. 586,

The Dwtee Ac t. 1893.

PAXT V. 82. In this Act (except as to Part TV.), unless the context

~ d h i t i ~ ~ s. otherwise requires-

The expression '' contingent right," as applied to land, includes

a contingent or executory interest, a possibility coupled with

an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained; also a rigtit of entry, whether immediate or future, and whether vested or contingent:

The expressions " convey " and " conveyance " applied to any person include the execution by that person of cvcry neces- sary or suitable transfer or assurance for conveying, assign ing, appointing, surrendering, or otherwise transferring or disposing of land to which he is entitled or of which he is seised or possessed, or wherein he is entitled to a contingent right, either for his whole estate .or for any loss estate, together with the performance of all formalities or acts required by law under the Real Property Act or otherwise for the validity or completion of the conveyance, including the acts to be performed by married women and tenants in tail for perfect conveyance and assurance undcr the Acts for the time being in force in that behalf:

Thc expression devisee " includes the heir of a devisee and the

devisee of an heir, and any person who may claim right by

devolution of title of a similar description:

The expression instrument " includes Act of Parliament:

The expression " land " includes incorporeal as ell as corporeal hereditaments, and any estate or interest thercin, and also an undivided share of land:

The expression " lunatic " means any person who shall have been found to be a lunatic upon inquiry by the Supreme Court, or	upon a commission of inquiry issning out of the Supreme
Court in the nature of a writ of de lunatico inquirendo :

The expressions '' mortgage " and '' mortgagee " include and relate to every estate and interest regarded in equity as merely a security for money, and evcry person deriving titlc under the original mortgagee:

The expressions '' pay " and " payment," as applied in relation to

stocks and securities, and in co~nection with the expression

into Conrt," include the deposit or transfer of the same in

or into Court:

The expression " person of unsound mind " means any person,

not an infant who, not h a v i y been found to be a lunatic,

shall be incapable from infirmity of mind of managing his

own affairs:

The

56" & 57" VICTORIW, No. 586.

The Trustee Act.--1893.

The expression possessed " applies to receipt of income of LA^ V.

and to any vested estate less than a life estate, legal or

equitable, in possession or in expectancy, in, any land:

The expression " property " includes real and personal property, and any estate and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not:

The expression Real Property Act " means 'G The Real Property

Act 1886," and any Act amending the same or substituted therefor:

The expression representative " means an cxecutor or adminis-

trator, and includes the Public Trustee in cases where the Supreme Court shall have authorised him to administer the estate of a deceased person:

The expression	securities " includes stocks, funds, and shares:
The expression	stock " includes fully paid up shares, and, so far

as relates to vesting orders made by the Court under this Act, includes any fund, annuity, or security transferable in books kept by any company or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest therein:

The expression " Supreme Court" includes a Judgc of the Supreme Court:

The expression " transfer," in relation to stock, includes the

performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to cffect and complete the title in the transferee:

The expression ' C trust" does not include thc duties incident to an

estate conveyed by way of ma~tgage, or to the estate or

interest of a mortgagee under the Real Property Act, but	with these exceptions the expressions trust " and " trustee "
includc irnplicd and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of rep&sentative of a deceased person: and the expression "trustee" includes a
representative of a deceased person.

I n the name and on behalf of Her Majesty, I hcrcby assent to

this Rill.

S. J. WAY, Lieutenant-Governor.

56" & 57" VICTORIE, No. 586.

SCHEDULES.

FIRST SCHEDULE.

No. of Aat. Title. Extent of Repeal.

The Trustee Act, 1855 Sections 2 to 47 in-

clusive

No. 6 of 1860. . The Property Act of 1860 Sections 24 to 30 in-

clusive

No. 7 of 1862. . An Act to give to Trustees, Mortgagees, Sections l to 9 inclusive,

1	and others, certain powers now	soctions 23 to 31 in-
I	commonly inserted in Settlements,	clusive
Mortgages, and Wills

No. 14 of 1866-7 The Limitations of Suits and Actions Section 26

Act, 18GG

No. 523 of 1891 The Trustees Appointment Act 1891 The whole

SECOND SCHEDULE.

South Australian Government Securities.

No. [Royal Arms.] No.

(Authorised by "The Trustee Act, 1893.")

I, the Treasurer of the Province of South Australia, in consideration of the sum of Pounds, paid to me for public purposes by, do hereby bind myself to plty to the holder for thc timc being of this bond the sum of Pounds, and interest thereon at the rate of Four Pounds per centum per annum; such interest to be payable on the first day of April and the first day of October in every year, and the principal to be paid on the first day of

, in the year one thousand nine hundred and

Sealed with my seal. Dated the day of one thousand

eight hundred and

Signed, sealed, and delivered in

the presence of 1

[Bond transferable by delivery *l

THIRD SCHEDULE.

Appointment of Xew i"rustees.

Pursuant to Part IT. of The Trustee Act, 1893," we [here set out names, addresses,

and o ~ c ~ a t i o n s ], being persons entitled to exercise and exercising the power of

appointing new trustees of the trust hereinafter referred to, do hereby appoint [here

set out Bames, addresses and occupations of new trustees], to be new trustees (here i f

necessary insert jointly with ") [Were insert names, addresses, a d occupations of the

old continuing trustees] of the trust constituted under [here set out shortly particulars

of the bmtrument creating the trust, including date, and name of person by zoAom trust

was crealed], and we the said [here in~ert names of new trustees] do hereby accept the

said trusteeship.

Dated this dayof . ,.l8

[To he signed by the persons exercrsrng the power of appozntment,

and by the new tr.ustees, and do be attested.]

FOURTH

56' & 57" VICTORIE, No. 586. .-

-

The Trustee Act.- 1893.

FOURTH SCHEDULE.

Memorandum of the Appointment of N e w Trusteas.

Pursuant to Part IV, of The Trustee Act, 1893," i t is hereby certified as

folfow~ :T-

1. The trust is constituted under [here set out shortly particulars of the instrument creating the trus t, including date and names of persons by w h o m trus t created],

2, The trust estates consist of [here .?et out shortly the trust'~estutes, giving par- ticulars suBcient to identi fy, so far a s practicable, and, as regards real estate, giving

the last r q i s t m t i o n reference, and the e.rtate or interest o f the trustees].

3. The names, addresses, and occupations of the trustees on the constitution of the trust for, whichever shall East hoppen, on the last appointment of trustees, dated the

day of , 18 ) were [here set out names, addresses, and occupations].

4. The ower of appointing new trustees is vested in [here set out persons in whom

it i s lresteq b y virtue of the provision in that behalf eolrtained in [here set out where

contained. A d d, i f provision not containtd in A c t of Parl iament] and of which pro-

vision the following is a copy [here set out copy].

5. The power of appointing new trustees of thc said trust has been lawfully exer- cised by the persons entitled t o exercise the same by the appointment of the new trustees mentioned in the next paragraph.

6. The persons in whom the trust estates will become vested on compliance with the provisions of Pmt IV. of '+ The Trustee Act, 1893," are as follows :-

First.-Old continuing trustees Lhere set out names, addresses, and occupations of

old trustees, if any].

Secondly.--New trustees [here set otct names, addresses, and occupations of new

trustees].

Dated this day of , 18 .

[ T o be signed by the persons entitled to make the aj idavi t

or declaration verifying, n ~ d to be altested].

FIFTH SCHEDULE.

We [here set out names, addresses, ancl occupations of deponents], the persona

signing the memorandum of the appointment of new trustees above written ( o r

annexed thereto, as the cuse m a y he), severally make oath and swear f o r, as the case

m a y be, solemnly and sincerely declare) as follows, that is t3 say :-

l. The statements contained in the said memoranrlum are true in every particular.

2. We are [here show authorsty to mnke the af idnvi t OY deckuratim, as, for instance,

" the persons entitled to exercise and exercising tile power by which the n s w trustees

are appointed."]

[ 2 b be signed and secerolly sworn or declared by all deponentr

hefiwe a notary public or a Justics o f the Peace.]

-

Adelaide: By authority, C. E. Bars~ow, Government Printer, North-terrace.