Various powers and duties of a trustee, either original or substituted, is dead, or remains out of the United Kingdom 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 doing so, the person or persons nominated for the purpose of appointing new trustees, if any, or the surviving or continuing trustees or trustee or the personal representative of the last surviv ing or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unfit or incapable as aforesaid. On the appointment of a new trustee for the whole or any part of trust property — (a) the number of trustees may be increased ; (b) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part thereof, notwithstanding that no new trustees or trustee are or is to be appointed for other parts of the trust property, and any existing trustee may be appointed, or remain one of such separate set of trustees ; or if only one trustee was originally appointed, then one separate trustee may be so appointed for the first mentioned part ; (c) it is not 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 more than two trustees were originally appointed ; but, except where only one trustee was originally appointed, a trustee will not be discharged from his trust unless there are at least two trustees to perform the trust ; and (d) any a.ssurance or thing necessary for vesting the trust property jointly in the persons who are trustees are to be executed or done. Every new trustee, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, has the same powers, authorities and discretions, and may act as if he had been originally appointed a trustee. These provisions relating 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 execution of such provisions. The foregoing applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and ha,s effect subject to the terms of such instiument ; and it applies to trusts created either before or after the commencement of the Act of 1891 Retirement of trustee.—Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trast, and if his co-trustees and such other person, if any, who is empowered 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 trustee desiring to be discharged will be deemed to have retired from the trust, and will, by the deed, be discharged therefore, without any new trustee being appointed in his place. Any assurance or thing requisite for vesting the trust property in the continuing trustee can be executed or done. This provision applies only if and so far as a contrary intention is not expressed in the instrument, if any, creating the trust, and has effect subject to the terms thereof, and applies to trusts created either before or after the com mencement of the Act. Vesting of trust property.—Where a deed by which a new trustee is appointed to perform 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 chattel so subject, or the right to recover and receive any debt or thing in action so subject, shall vest in the persons who by virtue of the deed become trustees, that declaration operates to vest in those persons the estate or interest without any conveyance. Where a deed by which a retiring trustee is discharged contains the statutory declaration by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration will, without any conveyance or assign ment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the interest to which the declaration relates. These vesting provisions do not extend to any legal estate or interest in copy hold 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 directed under any Act of Parliament. For purposes of the registra tion of the deed in any registry, the person or persons making the decla ration are deemed to be the conveying party or parties, and the conveyance is deemed to be made by him or them under a power conferred by the Trustee Act, 1893. This part of that Act only refers to deeds executed after the 31st December 1881.
Purchase and ,sale.—Where a trust for sale or a power of sale is vested in a trustee, he may sell any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to conditions, with power to vary the sale contract, and to buy in at any auction, and to rescind any contract, and to resell, without being answerable for any loss. But these powers can be exercised only so far as a contrary intention is not expressed in the instrument creating the trust or powers ; and they have effect subject to the terms thereof ; and they are applicable only to a trust or power created by an instrument coming into operation after the 31st December 1881. No sale made by a trustee can be impeached by any beneficiary upon the ground that any of the conditions, subject to which the sale was made, may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. No sale made by a trustee
can, after 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 unnecessarily depreciatory, unless, of course, the purchaser was acting in collusion with the trustee at the time of the con tract. No purchaser, upon any sale made by a trustee, can make any objection upon the above ground These particular provisions apply only to sales made after the 24th December 1888. A trustee who is either a vendor or a purchaser may sell or buy without excluding the application of section 2 of the Vendor And Purchaser Act, 1874. When any freehold or copyhold hereditament is vested in a married woman as a bare trustee, she may convey or surrender it as if she were a femme sole. Various other powers and of money by trustee may appoint a solicitor to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee, by permitting the solicitor to have the custody of and to produce a deed con taining any such receipt as is referred to in section 56 of the Conveyancing and Law of Property Act, 1881, without incurring liability for breach of trust thereby. The producing of such a deed is as valid as if the person appointing the solicitor was not a trustee. A trustee may appoint a banker or solicitor to be his agent to receive and give a discharge for assurance money, by permitting the banker or solicitor to have the custody of and to produce the policy of assurance with a receipt signed by the trustee, without incurring liability as above mentioned. This provision applies where the money or valuable consideration or property is received after the 25th December 1888, and does not authorise a trustee to do or omit anything which he is expressly forbidden to do or omit by the instrument creating the trust. Power to insure.—A trustee may insure property from loss or damage by fire to any amount (including the amount of any insurance already on foot) not exceeding three equal fourth parts of the full value of such property, and pay the premiums out of the income thereof or of other property subject to the same trusts, without the consent of any person. This provision does not apply to any building or property which a trustee is bound forthwith to convey absolutely to any beneficiary on being requested to do so. It applies to trusts whenever created, but does not authorise the doing or omission by a trustee of anything which he is expressly forbidden to do or omit. Renewal of leaseholds.—A trustee of leaseholds for lives or years which are renewable from time to time may, and in some cases, must, use his best endeavours to obtain a renewed lease of the same on the accustomed and reasonable terms, and for that purpose may surrender the subsisting lease ; but where by the terms of the settling instrument the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew, his consent must be obtained. If money is required to pay for the renewal, the trustee may pay the same out of any money in his hands in trust for the beneficiaries, and, if necessary, may raise the money required by mortgage of the hereditaments to be comprised in the renewed lease, or of any other hereditaments subject to the trusts, and no person advancing money upon any such mortgage is bound to see that the money is wanted, or that more is raised than is wanted. This provisibn applies to trusts whenever created, but does not authorise a trustee to do or omit to do anything which he is by the creating instrument expressly forbidden to do or omit to do. The receipt in writing of a trustee for any money or property is a sufficient discharge, and exonerates the person paying, transferring, or delivering the same from seeing to the application or being answerable for any misapplication thereof. Executors and others compounding. — An executor or administrator may pay or allow any debt or claim on any evidence that he thinks sufficient. An executor, or administrator, or trustees, or a sole acting trustee (where authorised to execute the trusts), may accept any composition, or any' security, for any debt or property claimed, and may compromise, compound, abandon, submit to arbitration, or settle any debt or thing relating to the testator's or intestate's estate, or to the trusts, and execute such releases and discharges as may seem to them expedient, without being answerable for any act so done in good faith. This provision applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and has effect subject to the terms of such instrument. Other powers.—Powers vested in two or more trustees jointly niay, unless a contrary intention is expressed in the creating instrument, be exercised by the survivor or survivors. This last provision only applies to trusts constituted, or instruments coming into operation after 31st December 1881. A trustee acting or paying money in good faith under a power of attorney is not liable for any such act or payment by reason of the fact that at the time of the payment or act the donor of the power was dead, or has done some act to avoid the power if the fact is unknown to the trustee ; but nothing in this provision affects the right of any person entitled to the money against the person to whom the payment is made, and the person so entitled has the same remedy against the person receiving payment as he would have had against the trustee. Except in the case of wilful default a trustee is accountable only for his own acts, and not for those of any other trustee, nor for any banker, broker, or other person, nor for the insufficiency or deficiency of any securities, or any other loss; and he may reimburse himself out of the trust premises all expenses incurred in the execution of the trusts.