more precise rule could safely be laid down than "that in the absence of any special circumstances which might make the desired transfer asked by the tenant for life beneficial to those in remainder irrespective of pecuniary calculations, the transfer ought not to be permitted, if on pecuniary calcu lations it might be injurious to those in remainder." And Turner, L. J., appears to have assented to this view, giving as an instance in which the court might properly make such investment, where "from the exigency of a family it would be desirable for the children that the income of the parents should be increased." But he added that the decision was "not intended to embarrass trustees where the fund was not in court, and that they would in making such an investment be entitled to the protection of the court, if they acted bona fide to the best of their discretion." (Cockburn v. Peel, 5 W. R. 725; 3 De G., F. & J. 170.) In a recent case the tenants for life of a residue applied for the sale of Bank Annuities and the investment of the proceeds upon Bank Stock, and the court after taking time to consider declined to make any order, on the ground that the exercise of the power by the court was discretionary, and that there were no special circumstances to call for such a change of investment. (Maclaren v. Stainton, M. R., July 4th, 1861.) But where a tenant for life had a wife and five children, and his income exclusive of the dividends on the fund in court (£6,357 : 15s. 2d. Consols,) was only 701. per annum, the court thought these circumstances sufficient to justify an investment in Bank of England Stock, and made the order accordingly. (Peillau v. Brooking, 4 L. T., N. S. 731; Lewin on Trusts, pp. 699, 700, 4th ed.) Under special circumstances the court upon the petition of a tenant for life will sanction a change of investment from New £3 per Cents. to Bank Stock, but refused an investment in East India Stock, as it would involve a loss of capital, if that stock should be redeemed at a reduction from the present market value. (Re Langford's Trusts, 31 L. J., Ch. 334.) 23 & 24 Vict. c. 38, s. 10. in the stocks, &c. under the control 11. When any such general order as aforesaid shall have been Trustees, &c. to made it shall be lawful for trustees, executors or administrators invest trust funds having power to invest their trust funds upon government secu- in which cash rities, or upon parliamentary stocks, funds or securities, or any of the court may of them, to invest such trust funds, or any part thereof, in any of the stocks, funds or securities in or upon which by such general order cash under the control of the court may from time to time be invested. 12. Clause thirty-two of the said act of the twenty-second and twenty-third of Queen Victoria, chapter thirty-five, shall operate retrospectively (d). (d) Ante, p. 694. [The 13th section of this act is inserted ante, p. 248.] 14. The order to take an account of the debts and liabilities affecting the personal estate of a deceased person, pursuant to the nineteenth section of the act of the thirteenth and fourteenth years of Victoria, chapter thirty-five, may be made immediately, or at any time after probate or letters of administration shall have been granted (e); and such order may be made either by the Court of Chancery upon motion or petition of course, or by a judge of the said court, sitting at chambers, upon a summons in the form used for originating proceedings at chambers; and after any such order shall have been made, the said court or judge may, on the application of the executors or be invested. Clause 32 of 22 & act retrospec 23 Vict. c. 35, to tively. 23 & 24 Vict. c. 38, s. 14. Court on applica- or administrators Act not to extend to Scotland, &c. administrators, by motion or summons, restrain or suspend, until the account directed by such order shall have been taken, any proceedings at law against such executors or administrators by any person having, or claiming to have, any demand upon the estate of the deceased, by reason of any debt or liability due from the estate of the deceased, upon such notice and terms and conditions (if any) as to the said court or judge shall seem just; and the judge, in taking an account of debts and liabilities pursuant to any such order, shall, on the application of the executors or administrators, be at liberty to direct that the particulars only of any claim or claims which may be brought in pursuance to any such order shall be certified by his chief clerk, without any adjudication thereon; and any notices for creditors to come in which may be published in pursuance of any such order shall have the same force and effect as if such notices had been given by the executors or administrators in pursuance of the twenty-ninth section of the act of the twenty-second and twentythird years of Victoria, chapter thirty-five (ƒ). (e) This act enacted, that it shall be lawful for the said court upon the application of the executors or administrators of any deceased person by order to be made upon motion or petition of course, and to be in the form or to the effect set forth in the schedule thereto, with such variations as circumstances may require, to refer it to one of the masters of the said court to take an account of the debts and liabilities affecting the personal estate of such deceased person and to report thereon: provided always, that no such order shall be made until the expiration of one year next after the death of such deceased person or pending any proceedings to administer the estate of such person, and that in case at any time after the making of such order any decree or order for administering the estate of such deceased person shall be made, it shall be lawful for the said court by such decree or order to stay or suspend the proceedings under such order of course on such terms and conditions, if any, as to the said court shall seem just. 13 & 14 Vict. c. 35, s. 19. (ƒ) Ante, p. 691. 15. This act is not to extend to Scotland, nor are any of the clauses, except clause six and the subsequent clauses, to extend to Ireland. TRUSTEES AND MORTGAGEES ACT. 23 & 24 VICTORIA, C. 145. An Act to give to Trustees, Mortgagees and others certain WHEREAS it is expedient that certain powers and provisions 23 & 24 Vict. which it is now usual to insert in settlements, mortgages, wills c. 145, s. 1. and other instruments should be made incident to the estates of the persons interested, so as to dispense with the necessity of inserting the same in terms in every such instrument: be it enacted as follows: PART I. Powers of Trustees for Sale, &c., and Trustees of renewable 1. In all cases where by any will, deed or other instrument of settlement it is expressly declared that trustees or other persons therein named or indicated shall have a power of sale, either generally, or in any particular event, over any hereditaments named or referred to in or from time to time subject to the uses or trusts of such will, deed or other instrument, it shall be lawful for such trustees or other persons, whether such hereditaments be vested in them or not, to exercise such power of sale by selling such hereditaments, either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid for any other hereditaments in England or Wales or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange. 2. It shall be lawful for the persons making any such sale or exchange to insert any such special or other stipulations, either as to title or evidence of title, or otherwise, in any conditions of sale, or contract for sale or exchange, as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell the hereditaments which shall be so bought in, or as to which the contract shall be so rescinded, without being responsible for any loss which may be occasioned 23 & 24 Vict. thereby, and no purchaser under any such sale shall be bound c. 145, s. 2. to inquire whether the person making the same may or may not have in contemplation any particular re-investment of the purchase-money in the purchase of any other hereditaments or otherwise. Trustees exercis ing power of sale, convey. 3. For the purpose of completing any such sale or exchange &c. empowered to as aforesaid, the persons empowered to sell or exchange as aforesaid shall have full power to convey or otherwise dispose of the hereditaments in question, either by way of revocation and appointment of the use, or otherwise, as may be necessary. Moneys arising from sales, &c. to be laid out in other lands; or in payment of incumbrances. 4. The money so received upon any such sale or for equality of exchange as aforesaid shall be laid out in the manner indicated in that behalf in the will, deed or instrument containing the power of sale or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments in fee simple in possession to be situate in England or Wales or in Ireland (as the case may be), or of lands of a leasehold or copyhold or customary tenure which, in the opinion of the persons making the purchase, are convenient to be held therewith or with any other hereditaments for the time being, subject to the subsisting uses or trusts of the same will, deed or other instrument of settlement in which the power of sale or exchange was contained; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be freeholds of inheritance shall be settled and assured to the uses, upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes and declarations, to which the hereditaments sold or given in exchange were or would have been subject, or as near thereto as the deaths of parties and other intervening accidents will admit of, but not so as to increase or multiply charges; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be of leasehold or copyhold or customary tenure shall be settled and assured upon and for such trusts, intents and purposes, and with, under and subject to such powers, provisoes and declarations, as shall as nearly as may be correspond with and be similar to the aforesaid uses, trusts, intents and purposes, powers, provisoes and declarations, but not so as to increase or multiply charges, and so that if any of the hereditaments so to be purchased shall be held by lease for years the same shall not vest absolutely in any tenant in tail by purchase who shall not attain the age of twenty-one years; and any such purchase as aforesaid may be mnade subject to any special conditions as to title or otherwise: provided that no leasehold tenement shall be purchased under the powers hereinbefore contained which is held for a less period than sixty years. 5. Provided nevertheless, that it shall be lawful for the persons exercising any such power as aforesaid, if they shall think fit, to apply any money to be received upon any sale or for equality of exchange as aforesaid, or any part thereof, in lieu of purchasing lands therewith, in or towards paying off or dis c. 145, s. 5. not to be laid out, charging any mortgage or other charge or incumbrance which 23 & 24 Vict. shall or may affect all or any of the hereditaments which shall then be subject to the same uses or trusts as those to which the hereditaments sold or given in exchange were or was subject. 6. No money arising from any such sale or exchange of Money arising lands or hereditaments in England or Wales shall be laid out in from sales, &c. the purchase of lands or hereditaments situate elsewhere than nor lands exin England or Wales, and no lands situate in England or Wales changed, elseshall, under any such power as aforesaid, be exchanged for any country in which lands or hereditaments situate elsewhere than in England or changed is situWales; and no money arising from any such sale or exchange ated. of lands in Ireland shall be laid out in the purchase of lands or hereditaments situate elsewhere than in Ireland, and no lands or hereditaments situate in Ireland shall, under any such power as aforesaid, be exchanged for any lands or hereditaments situate elsewhere than in Ireland. where than in the lands sold or ex to be invested at 7. Until the money to be received upon any sale or for Until purchase of equality of exchange as aforesaid shall be disposed of in the lands, &c., money manner herein mentioned, the same shall be invested at interest interest. for the benefit of the same parties who would be entitled to the hereditaments to be purchased therewith as aforesaid, and the rents and profits thereof, in case such purchase and settlement as aforesaid were then actually made (a). (a) See Re Duke of Cleveland, 1 Drew. & Sm. 481; 7 Jur., N. S. 769. holds may renew. 8. It shall be lawful for any trustees of any leaseholds for Trustees of relives or years which are renewable from time to time, either newable leaseunder any covenant or contract or by custom or usual practice, if they shall in their discretion think fit, and it shall be the duty of such trustees, if thereunto required by any person having any beneficial interest, present or future or contingent, in such leaseholds, to use their best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose it shall be lawful for any such trustees from time to time to make or concur in making such surrender of the lease for the time being subsisting, and to do all such other acts as shall be requisite in that behalf; but this section is not to apply to any case where by Restriction. the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew the lease or to contribute to the expense of renewing the same. change and for mortgage, &c. 9. In case any money shall be required for the purpose of Money for paying for equality of exchange as aforesaid, or for renewal of equality of exany lease as aforesaid, it shall be lawful for the persons effect- renewal of leases ing such exchange or renewal to pay the same out of any money may be raised by which may then be in their hands in trust for the persons beneficially interested in the lands to be taken in exchange, or comprised in the renewed lease, whether arising by any of the ways and means herein before mentioned or otherwise, and notwithstanding the provisions for the application of money arising from sales or exchanges hereinbefore contained; and if they |