dor has died

has been ob

specific per

where pur

been made in

another with

claration of

beir of such

nominal pur

Sect. 16. Where any land shall have been Where vencontracted to be sold, and the vendor or any of and a decree the vendors shall have departed this life, either tained for having received the purchase money for the formance, or same or some part thereof, or not having received chase has any part thereof, and a specific performance of the name of such contract, either wholly or as far as the same ont any deby reason of the infancy can be executed, shall trust, the have been decreed by the Court of Chancery in vendor or the lifetime of such vendor, or after his de- chaser to be cease (a), and where one person shall have pur- the Act. chased an estate in the name of another, but the nominal purchaser shall on the face of the conveyance appear to be the real purchaser, and there shall be no declaration of trust from him, and a decree of the said Court either before or after the death of such nominal purchaser shall have declared such nominal purchaser to be a trustee for the real purchaser, then and in every

rights and interests of himself and B. declared. A. was beyond sea, commanding a merchant vessel on a voyage to India. B. presented the petition, which prayed that the stock might be transferred into Court in the cause. His Honour, in refusing to make the order, said, he did not consider the plaintiff to be out of the jurisdiction, and that he thought the case was not within the meaning of the Act.

(a) After a decree in a suit for specific performance against the infant heir of a vendor, a petition must be presented under this Act for an order that the infant may convey to the purchaser, the costs of which application will be paid out of the purchasemoney.-Prytharch v. Havard, 6 Sim. 9.

deemed a

trustee within

Where

estates are

be sold and are afterwards devised

in strict set

tlement, te

may be or

vey after a decree for

specific per

formance.

such case the heir of such vendor, or such nominal purchaser or his heir in whom the premises shall be vested, shall be deemed a trustee for the purchaser within the meaning of this Act.

of

Sect. 17. Where any land shall have been contracted to contracted to be sold, and the vendor or any the vendors shall have departed this life, having devised the same in settlement so as to be vested nant for life in any person for life or other limited interest, dered to con- with any remainder, limitation, or gift over, which may not be vested, or may be vested in some person from whom a conveyance of the same cannot be obtained, or by way of executory devise, and a specific performance of such contract, either wholly or so far as the same remained to be executed, shall have been decreed by the Court of Chancery, the Court by whom such deceee shall be made, may by the same or any other decree, or any decretal order, or upon petition in the cause, direct any such tenant for life, or other person having a limited interest, or the first executory devisee thereof, to convey the fee simple or other the whole estate contracted to be sold to the purchaser, or in such manner as the said Court shall think proper.

Act to ex

tend to other constructive

and resulting

trusts.

Sect. 18. The several provisions before contained to extend to every other case of a constructive trust, or trust arising or resulting by

implication of law; but in every such case where the alleged trustee has or claims a beneficial interest adversely to the party seeking a conveyance or transfer, no order shall be made for the execution of a conveyance or transfer by such alleged trustee until after it has been declared by the Court of Chancery, in a suit regulary instituted in such Court, that such person is a trustee for the person so seeking a conveyance or transfer; but this Act shall not extend to cases upon partition, or cases arising out of the doctrine of election in equity, or to a vendor except in any case expressly provided for by the Act.

female trus

Sect. 19. Husbands of females trustees, mort- Husbands of gagees, &c. to be deemed trustees within the tees, &c. to Act, whether under any disability or not.

be deemed trustees.

to lunatics to

persons com

Sect. 20. The provisions of the Act for ob- Provisions as taining conveyances from lunatics to extend to extend to all all persons being lunatic who, by force of any pellable to law for payment of debts out of real estate, & G. 4, c. 74, would or hereafter may be compellable to convey any land if of sound mind.

convey.

8. 11.

to petitions

Sect. 21. The Act to extend to cases of peti- Act to extend tioners to the Court of Chancery in matters in cases of

charity and

friendly societies.

In clear cases where crea

recent, &c.

new trustees

may be appointed on petition.

relating to charities, or benefit or friendly societies (a).

Sect. 22. Recites that cases may occur upon tion of trust applications by petition under the Act for a conveyance or transfer, where the recent creation or declaration of the trust, or other circumstances, may render it safe and expedient for the Lord Chancellor or the Court of Chancery (as the case may require) to direct, by an order upon such petition, a conveyance or transfer to be made to a new trustee or trustees, without ' compelling the parties seeking such appointment to file a bill for that purpose, although there is no power in any deed or instrument creating or declaring the trusts to appoint new trustees; and enacts that in any such case the Lord Chancellor or the said Court of Chancery may appoint any person to be a new trustee, by an order to be made on a petition to be presented for a conveyance or transfer under the Act, after hearing all such parties as the said Court shall think necessary, and thereupon a conveyance or

(a) In Ex parte Norrish, Jac. 162, it was held that the Court had no jurisdiction in the case of a friendly society which had ceased to act on the rules allowed and filed pursuant to the statute. This was an application by petition under the 33 Geo. 3, c. 54; but the same principles, it is conceived, would govern an application by petition under this Act. See also as to the con

transfer shall be made and executed according to the provisions of the Act (a).

struction of former similar Acts, In re a Friendly Society, 1 Sim. & St. 82, and Exparte Segears, 1 Ves. & B. 497.

(a) Where the surviving trustee is out of the jurisdiction, the Court has power under this section to appoint new trustees, although there is in the deed creating the trust a power to appoint new trustees.-Re Fauntleroy, 10 Sim. 252; Chanc. R. 8. p. 367.

In Ex parte Shick, 5 Sim. 282, ante, p. 245, a new trustee was appointed without a reference, the petitioner being the only person interested in the property; and in Ex parte Inkersole, in re Rix, 2 Gly. & Jameson, 230, new trustees were appointed under the Act 6 Geo. 4, c. 16, s. 79, without a reference, the property being small, and an affidavit being produced to the Court that the proposed trustees were fit and proper persons, and were willing to undertake the trust.

But the Court will not appoint new trustees under this section except in plain cases, such as a recent trust created within ten years, or a simple trust for A. for her separate use for life, remainder to B. in fee, where the trustee has died or gone abroad, and no question can arise. Hence, where the trustee of a settlement who had never acted died, and his executors refused to act in the trusts, the Court refused under this section to appoint new trustees, there being no power in the settlement for the purpose, although it was suggested that the trust property was in danger of being lost.—In re Nicholls, 1 Lloyd & G. 17, Ca. temp. Sugden.

And so where the trustee had never accepted the trust, and refused to act (there being no power in the settlement to appoint new trustees), the Court would not make any order.-Re Whittley, 1 Lloyd & G. 23, Ca. temp. Sugden.

Nor where one of two trustees is dead, will the Court entertain a petition for the appointment of a new trustee in the place of such deceased trustee, unless some disability, as specified in the previous sections of the Act, is shown to exist.-Re Fitzgerald, 1 Lloyd & G. 20, Ca. temp. Sugden.

But in another case (re Coyne), where a petition was pre