Power to appoint new trus tees under 23 & 24 Power to appoint new trustees under the Trustee By Lord Cranworth's Act (23 & 24 Vict. c. 145), s. 27, it was provided that it should be lawful "for the person or persons nominated for that purpose by the deed, will, or other instrument creating the trust, if any, or if there be no such person or no such person able and willing to act then for the surviving or continuing trustees or trustee for the time being or the acting executors or executor, or administrators or administrator, of the last surviving and continuing trustee, or for the last retiring trustee, by writing to appoint any other person or persons to be a trustee or trustees in the place of"" any trustee . . . who shall die or desire to be discharged, or refuse or become unfit or incapable to act." The clause contained provisions similar to those in the third and fourth sub-clauses in the express power. In reliance on these provisions it became the practice to substitute for the full form a short clause supplementing the statutory provisions by nominating the persons by whom the power was to be exercised, and enabling the number of trustees to be augmented or reduced; though the full power was often inserted. The C. A. 1881 (which repealed 23 & 24 Vict. c. 145, s. 27) contained provisions (s. 31) as to the appointment of new trustees, which were amended by the C. A. 1882, s. 5, Act, 1893. and were extended by the S. L. A. 1890, s. 17, to trustees for the purposes of the S. L. Acts 1882 to 1890. These provisions have been repealed by the Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 51, and re-enacted (a) by s. 10, which provides that, unless the contrary is expressed in the instrument creating the trust, "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 (b) trustees or trustee for the (a) The Trustee Act, 1893 (s. 47), re-enacts the provisions of s. 17 of the S. L. A. 1890, as to trustees for the purposes of the S. L. Acts, 1882 to 1890. (b) This includes a refusing or retiring trustee if willing to act in the execution of the provisions of Trustee Act, 1893, s. 10 (4), see note 1 K. & E. 101. STATUTORY POWER OF APPOINTING NEW TRUSTEES. time being, or the personal representatives of the last surviving or continuing trustee (c), may by writing appoint another (d) person or other persons to be a trustee or trustees" in the place of any trustee (whether original or substituted, and whether appointed by a Court or other wise) who is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the trusts, or refuses or is unfit to act therein, or is incapable of acting therein. This power is similar to the usual form of express power, except that the latter usually had the words "be abroad" instead of "remain out of the United Kingdom for more than twelve months." The clause enables a new trustee to be appointed in the place of one who disclaims (D'Adhemar v. Bertrand, 35 Beav. 19), as being a trustee who "refuses to act"; or in the place of one who becomes bankrupt (Re Barker, 1 Ch. D. 43), as he is "unfit to act." It is the practice to vest the statutory power of appointing new trustees in the husband and wife and the survivor. (See Stud. Prec. 118 and further as to the appointment of new trustees the note in 1 K. & E. p. 99 et seq.) On the appointment of new trustees the number may be increased (Trustee Act, 1893, s. 10, sub-s. 2, a); and it is not obligatory to appoint more than one trustee where only one was originally appointed, or to fill up the original number where more than two were originally appointed; but, except where only one was originally appointed, a trustee is not discharged under the section from his trust unless there will be at least two trustees to perform the trust (ib. sub-s. 2, c). On the appointment of a new trustee any assurance or thing requisite for vesting the trust property in the trustees jointly is to be executed or done (ib. sub-s. 2, d); and every new trustee appointed under the (c) This includes the personal representative of a sole trustee (Re Shafto, 29 Ch. D. 247). (d) The donee of the power cannot appoint himself: Re Skeats, 361 Separate sets of trustees. Statutory power to retire. Vesting declaration of trust property. section, as well before as after the trust property is vested in him, has the same powers, &c., and may act in all respects as if he had been an original trustee (ib. sub-s. 3). The section applies to trusts created either before or after the commencement of the Act (ib. sub-s. 6). These provisions render it unnecessary to insert any provisions as to the appointment of new trustees, unless persons other than the statutory donees are to exercise the power in which case it is necessary to supplement the statutory power by a short clause stating by whom it is to be exercised. It may still be advisable where the trust property consists of land, or mortgages on land, situated in a foreign country in which there is no law to the effect of the above provisions of the Trustee Act, 1893, to insert the express power. The Trustee Act, 1893 (re-enacting s. 5 of the C. A. 1882), provides (s. 10, sub-s. 2, b) for the appointment of a separate set of trustees for any part of the trust property held on trusts distinct from those relating to any other parts. The Trustee Act, 1893, s. 11 (re-enacting the C. A. 1881, s. 32), provides that, unless a contrary intention is expressed in the instrument creating the trust, where there are more than two trustees, one of them may retire without any new trustee being appointed in his place, if by deed he declares his desire to retire, and his co-trustees and the person, if any, empowered to appoint new trustees by deed consent to his discharge. This section applies to trusts created either before or after the commencement of the Act. The Trustee Act, 1893, s. 12 (re-enacting the C. A. 1881, s. 34), enables the person appointing a new trustee, by declaration contained in the deed by which the new trustee is appointed, to vest "any estate or interest in any land subject to. the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject " in "the persons who by virtue of the SEPARATE SETS OF TRUSTEES. deed become and are the trustees for performing the trust" as joint tenants; and (by sub-s. 2) a similar provision is made for vesting the trust property on the retirement of one trustee (under s. 11) by the declaration of the retiring and continuing trustees, and the person, if any, empowered to appoint trustees; but (sub-s. 3) the section does not extend to "any legal estate or interest in copyhold or customary land, 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 prescribed by or under Act of Parliament." This section only applies to deeds executed after 1881. 363 and reim (8). The express clause for the indemnity and reim- Indemnity bursement of trustees contains the following sub-clauses: bursement 1. A declaration that the trustees shall be chargeable of trustees. only for such trust funds as they actually receive, notwithstanding their signing any receipts for the sake of conformity. 2. That each of them shall only be answerable for his own acts and defaults. 3. That no trustee shall be liable for lending money on or purchasing hereditaments with less than a marketable title, or for the insufficiency in title or deficiency in value of any investment, or for any other loss, unless the same happens through his wilful default. 4. A power to the trustee to pay all expenses incurred by him on or about the execution of his trusts and powers out of the trust property. The first two and the fourth of these sub-clauses are now supplied by s. 24 of the Trustee Act, 1893 (re-enacting the Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35), s. 31. As to the third, trustees are protected who dispense with the investigation of the lessor's title on the purchase (V. & P. A., 1874, s. 2) or on lending on mortgage (Trustee Act, 1893, s. 8 (2)) of leaseholds or with the investigation of the under-lessor's title on the purchase Solicitor trustee. Object of strict settlement. of an under-lease (C. A. 1881, s. 3 (1) ). The Trustee Act, 1893 (re-enacting 22 & 23 Vict. c. 35, s. 31, and Trustee Act, 1888, s. 4), provides (s. 24) to the effect of the latter part of the third sub-clause set out above. Having regard to the rule of Equity that no trustee is allowed any recompense in respect of the time and trouble that he expends in the execution of the trust, it follows that a solicitor who is a trustee and acts as solicitor to the trust is not allowed more than costs out of pocket; but it is a usual and convenient practice in cases where a solicitor is appointed trustee to introduce a provision (see form in 2 K. & E. 521) authorising him to receive remuneration just as if he had not been so appointed. (Broughton v. Broughton, 5 De G. M. and G. 160; 2 W. & T. L. C., note to Robinson v. Pett. As to non-professional services, see Harbin v. Darby, 28 Beav. 325; Re Ames, 25 Ch. D. 72; Re Chapple, 27 Ch. D. 584; Re Fish (1893), 2 Ch. 413. PART II.-STRICT SETTLEMENTS. It is proposed to treat the subject of strict settlements more briefly than its importance deserves, and this for two reasons: first, the discussion of all the points likely to arise in the preparation of a strict settlement would require a treatise for itself; and, second, it is unlikely that the beginner will have to prepare one. Therefore, only a few of the more obvious questions which arise will be dealt with, and the student is referred to the works of Davidson, Peachey, and Vaizey for a fuller discussion. In the most simple case (the only one discussed here), where the intended husband is absolutely entitled to the property, the object of a marriage settlement of real property in the ordinary form, commonly called a strict settlement, is to keep the property in the family, charged with some provisions for the wife and for those children who do. not succeed to it. This is effected as follows: First, by securing the payment to the wife of two annuities—the one, payable during her husband's lifetime, called "Pin-money;" |