WIFE, HUS BAND, AND OF STOCK, FOR have done, under and by virtue of these presents, if then living and continuing to act in the trusts or powers hereby reposed in or limited to him or them, anything herein before contained to the contrary thereof in anywise notwithstanding (u): PROVIDED ALWAYS, and it is hereby declared, that CHILDREN, WITH USUAL CLAUSES. Trustees' indemnity clause. Power to ap point new trustees, nearly always essential; -must state accurately all the cases in which new trustees are to be appointed; -how to be abridged; -in whom to be vested. -construction of; -female should not be appointed under; -does not provide for the bankruptcy or insolvency of trustees. (u) The power to appoint new trustees should never be omitted in any settlement, except in the very rare case of its being certain that all the cestuis que trust are, and must continue to be, competent of their own authority to discharge the old and appoint new trustees. The power should provide with great precision for all the events in which the appointment of new trustees may become necessary, and which are generally considered to be 1, the death; 2, the absence in foreign countries; 3, the desire to be discharged; 4, the refusal to act; 5, the declining to act; and 6, the incapacity to act-of any of the old trustees. In cases in which the power has omitted to provide for all the cases, it has been held by eminent conveyancers, that the 2nd and 3rd may be considered as included in the 4th and 5th cases, or either of them, and that the 3rd includes the 4th and 5th cases, and vice versa; but, of course, this result can only be got at by changing the real desire or refusal of the trustee into a fictitious desire or refusal, and always leaves an unpleasant doubt as to the validity of the new appointment. In preparing the power, the necessity of such forced construction must be obviated. If, however, it be desired to shorten the form, (which, it must be confessed, is rather prolix), the formalities annexed to the appointment may be omitted, and the direction, as to the transfer and vesting of the trust estates, be briefly expressed. See the form of appointing new trustees in the note at the end of this Precedent. In marriage settlements, the power to appoint new trustees is nearly always given to the husband and wife during their joint lives,-to the survivor during his or her life, and to the personal representatives of the survivor after the death of both. This arrangement is very convenient, and ought not to be disturbed without good reason. With regard to the construction of powers to appoint new trustees, (see 2 Sugd. Pow. ch. xix.; Lewin on the Law of Trusts and Trustees, ch. xxiii. sect. 2; ante, Vol. 1, Art. SETTLEMENTS; see, too, infra, Vol. 5, the Precedents of the appointment of new trustees. It may be convenient, however, to observe, that not only is a feme covert an improper person to be appointed a new trustee, (Lewin, p. 89), but it is not right to appoint even a feme sole. (Brook v. Brook, 1 Bea. 531). The ordinary power does not provide for the removal of a trustee on his bankruptcy or insolvency; but in the case of bankruptcy, a new trustee will be appointed by the Court of Chancery. (Stat. 6 Geo. 4, c. 16, s. 79; Archb. Bank. Law, 6th edit., p. 214; see, too, Ex parte Wilkinson, WIFE, HUS- WITH USUAL CLAUSES. the said several trustees hereby nominated and appointed, OF STOCK, FOR or to be appointed by virtue of the proviso last herein before contained, and each and every of them, and the heirs, executors, administrators, and assigns of them, each and every of them, shall be charged and chargeable respectively only for such monies as they shall respectively actually receive, by virtue of the trusts hereby in them reposed, notwithstanding his or their or any of their giving, or signing, or joining in giving or signing any receipt or receipts for the sake of conformity, and any one or more of them shall not be answerable or accountable for the other or others of them, or for the acts, receipts, neglects, or defaults of the other or others of them, but each and every of them only for his and their own acts, receipts, neglects, or defaults respectively, and that any one or more of them shall not be answerable or accountable for any banker, broker, or other person with whom or in whose hands any part of the said trust-monies shall or may be deposited or lodged, for safe custody or otherwise, in the execution of the trusts herein before mentioned; and that they or any of them shall not be answerable or accountable for the insufficiency or deficiency of any security or securities, stocks or funds, in or upon which the said trust-monies or any part thereof shall be placed out or invested, nor for any other misfortune, loss, or damage, which may happen in the execution of the aforesaid trusts, or in relation thereto, except the same shall happen by or through their own wilful default respectively (v): AND ALSO THAT it shall be lawful for Power to the 2 Dea. 151; Bainbridge v. Blair, 1 Bea. 495; and ante, Vol. 1, Art. SETTLEMENTS. (v) This clause, for the indemnity of trustees, is nearly always in- Indemnity to serted in settlements. But, so far as regards their protection against the trustees. acts of their co-trustees, it does very little more than express the doctrine, which courts of equity hold, even in the absence of such a clause. (See Lewin on the Law of Trusts and Trustees, ch. xv. sect. 5, p. 268; ante, Vol. 1, Art. SETTLEMENTS). And so far, too, as it exonerates them in respect of the failure of proper agents and securities, it appears to add nothing to their safety. (See Lewin, ch. xvi. sect. 11, p. 299; see, too, the recent cases, Moyle v. Moyle, 2 Russ. & My. 170; Macdonnell v WIFE, HUS BAND, AND CHILDREN, WITH USUAL CLAUSES. trustees to retain and reimburse them OF STOCK, FOR the said trustees in these presents named, and such future trustee or trustees to be appointed as aforesaid, and every or any of them, their and every of their heirs, executors, administrators, and assigns, by and out of the monies which shall come to their respective hands by virtue of the trusts aforesaid, to retain to and reimburse himself and themselves selves their ex- respectively, and also to allow to his and their co-trustee and co-trustees all costs, charges, damages, and expenses, which they or any of them shall or may suffer, sustain, expend, disburse, be at, or be put unto, in or about the execution of the aforesaid trusts or in relation thereunto (x). IN WITNESS &c. (y). penses. Clause for the payment of the trustees' expen ses. Propriety, in many cases, of using the fol lowing short trustee clauses. Power to ap Harding, 7 Sim. 176; Clough v. Dixon, 8 Sim. 594; S. C. 3 My. & C. 490; Munch v. Cockerell, 9 Sim. 339). In fact, the whole effect of this indemnity clause is to express the rule of equity, that trustees shall be liable only for losses occasioned by their own wilful acts or default; and if the clause be retained, it may be very properly reduced to that expression. (See the form in the next page). It may, however, be satisfactory to a trustee undertaking the trusts, to see, what he is told is the rule of equity made an express part of the contract, instead of being left to an implication of which he can know nothing. (x) In the absence of special stipulations, trustees are entitled to pay or be repaid out of the trust-fund all costs and expenses which they fairly incur in the conduct of their trusts; but they are not entitled to any allowance for their time or trouble, except in very special cases, or unless such an allowance is expressly directed to be made them by the instrument creating the trust. (Lewin on the Law of Trusts and Trustees, ch. xxii.; and the recent cases Moore v. Frowd, 3 My. & C. 45; Willis v. Kibble, 1 Bea. 554). The clause in the text leaves the general rule of equity untouched, and may be very safely either omitted or cut down to the form given in the next page. (y) The preceding clauses for the appointment of new trustees, and for the indemnity of the trustees, and the payment of their expenses, are extremely and (as has been pointed out in the preceding notes) needlessly prolix. Long use still causes them to be inserted in most drafts; but whenever, from the trifling nature of the property or the urgent wish of the parties, brevity is an object, the practitioner need have no hesitation in the employment of the following form, which was settled about five or six years ago by a most eminent conveyancer, and is now in common use: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that if the said trustees in and by these presents appointed, or either* of them, or any trustee or trustees to be appointed as hereinafter is mentioned, shall die, or be absent from this kingdom more than twelve calendar months at any one time, or be desirous of being discharged of and from, or refuse or decline, or become incapable to act in, the aforesaid trusts, before the same shall be fully executed, then and so often as the same shall happen, it shall be lawful for the said [husband] and [wife], or the survivor of them, or the executors or administrators of such survivor, from time to time to appoint any other person to be a trustee or trustees in the stead of the trustee or trustees so dying, or being absent from this kingdom, or desiring to be discharged, or refusing, declining, or becoming incapable to act as aforesaid; and that, upon every such appointment, the said trust estates, monies, and premises shall be assigned, transferred, or conveyed in such manner, and so that the same may become vested in the new trustee or trustees jointly with the surviving or continuing trustee or trustees, or solely, as the case may require; and every such new trustee shall have the same powers as if he or they had been originally named a trustee in these presents: PROVIDED ALSO, and it is further agreed and declared between and by the parties to these presents, that the trustees or trustee for the time being of these presents shall not be answerable the one for the other of them, and by no means for involuntary losses; and also, that it shall be lawful for the trustees or trustee for the time being to reimburse themselves or himself, out of the monies which shall come to their or his hands by virtue of the trusts aforesaid, all their costs and expenses to be incurred in or about the execution of the aforesaid trusts. See the same form of appointing the new trustees, ante, Vol. 3, pp. 293, 294, with the exception that the power is reposed in the surviving or continuing trustees. * See supra, p. 324, n. (s). OF STOCK FOR WIFE, HUSBAND, AND CHILDREN, WITH USUAL CLAUSES. point new trustees. Clause for the indemnity of trustees and the payment of their expenses. APPOINTMENT OF A DAUGH• TER'S PORTION, IN CONTEMPLATION OF HER MARRIAGE. Party. Recital of the marriage settlement of the appointor, creating a term of years for raising portions for the younger child ren of the marriage; Appointment to be made by separate deed, II. APPOINTMENT by a FATHER, in contempla- TO ALL TO WHOM THESE PRESENTS SHALL (a) When any part of the property to be settled is to be vested in the settlor by an appointment under a power, the appointment is usually made (as in the text) by a separate deed bearing even date with the settlement, and executed immediately before the execution thereof. (See infra, p. 333, n. (a).) Unless the power should require, which it scarcely or ever does, that the power be executed by indenture, a deed-poll is the most appropriate form of appointment. (b) With respect to the mode of reciting settlements, see the examples, ante, Vol. 3, Precedents XXI. and XXIX., and the observations in the same volume, p. 222, n. (c), p. 281, n. (a); see, too, Ibid. p. 210, n. (d). |