Lord Chancellor shall direct; and every such transfer, receipt, and payment, shall be as effectual as if the person being lunatic had been of sane mind, memory, and understanding, and had transferred, received, and paid, or joined in transferring, receiving, and paying such stock or dividends." And it is further enacted (o), "That where any such person as aforesaid, being lunatic, shall not have been found such by inquisition, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to direct any person whom the said Lord Chancellor may think proper to appoint for that purpose, in the place of such last-mentioned lunatic, to convey or join in conveying such land, or to transfer or join in transferring such stock, and receive and pay over the dividends thereof, as hereinbefore is mentioned; and every such conveyance, transfer, receipt, or payment, shall be as effectual as if the said person being lunatic had been of sane mind, memory, and understanding, and had made, done, or executed the same; but where any sum of money shall be payable to such lunatic, no such last-mentioned order shall be made, if such sum of money shall exceed 7007.; and where any sum not exceeding 7001. shall be payable to such lunatic, and any such order shall be made, the Lord Chancellor, intrusted as aforesaid, shall direct to whom, and in what manner, the money so payable shall be paid; and every payment made in pursuance of such direction shall effectually discharge the person paying the same from the money which he shall so pay" (p). It is also provided (q), that every order to be made in pursuance of that act by the Lord Chancellor, intrusted as aforesaid, shall be signified upon petition in the lunacy or matter; and such person as hereinafter is mentioned, shall be the petitioner, whe s. 5. (0) 11 Geo. 4 & 1 Will. 4, c. 60, to the case of a lunatic not so found by inquisition, who fills none of such characters, although his interest may not exceed that sum. Chap. x. s. 3. (p) It seems that this section extends only to cases where the lunatic is either an executor, trustee, or mortgagee, having a beneficial interest in the fund, in his own right not exceeding 7007.; and that it does not apply See post, (g) 11 Geo. 4 & 1 Will. 4, c. 60, s. 11. ther such person be or be not under any legal disability; (that is to say), if the same shall relate to a conveyance, transfer, receipt, or payment, to or in such manner as may be directed by any person beneficially entitled, then, upon the petition of the person or some or one of the persons beneficially entitled to the land, stock, or dividends to be conveyed, transferred, received, or paid; and if the same shall relate to a conveyance in order to vest any land or stock in a new trustee duly appointed, then upon the petition either of the trustee or some or one of the trustees in whom the same shall be proposed to be vested, or of any person having an interest therein; and if the same shall relate to the conveyance of an estate in mortgage, then, upon the petition of the person or some or one of the persons entitled to the equity of redemption thereof, or of the person or some or one of the persons entitled to the monies thereby secured, or the committee or some or one of the committees of the person entitled to such monies if a lunatic. It was decided, that a petition, praying that the committee of a lunatic might be ordered to transfer property vested in a lunatic as a trustee within the 6 Geo. 4, c. 74, s. 3, ought to be intitled in the lunacy, and need not be intitled in the matter of the act (r). The Lord Chancellor may direct a bill to be filed in cases where, on account of the length of time since the creation or last declaration of a trust, the title of the party claiming a conveyance or transfer may appear to require deliberate investigation in the presence of the parties interested, or where it shall appear to the Lord Chancellor, intrusted as aforesaid, not proper to make an order upon petition. Any committee directed by the act to make any conveyance or transfer, may be compelled by the order to be obtained as directed by the act, to execute the same in like manner as trustees of full age and of sane mind are compellable to convey and transfer (s). Every person being in other respects a trustee, is declared to be so, notwithstanding he may have some beneficial estate or interest in the same subject, or may have (r) In re Fowler, 2 Russ. 449. (s) 11 Geo. 4 & 1 Wm. 4, c. 60, ss. 12 & 13. some duty as trustee to perform; but in every such case, and in every case of a mortgagee, (not being a naked trustee), the Lord Chancellor, intrusted as aforesaid, if he shall think it requisite, may direct a bill to be filed to establish the right of the party seeking the conveyance or transfer (t). The act extends to every 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, until after it has been declared by the Court of Chancery, in a suit regularly instituted in such Court, that such person is a trustee for the person seeking a conveyance or transfer; but the act does not extend to partitions, or cases of election in equity, or to a vendor, except to the case thereby provided for (u). 3. An order has been lately made by Lord Chancellor Brougham, that no petition, relating to lunatic trustees under the act of 11 Geo. 4 & 1 Wm. 4, c. 60, be brought on for hearing, unless two days' notice shall have been given to the Secretary of lunatics, and to all parties interested (v). When it is desired to obtain a reconveyance of property vested in a lunatic, either as a trustee or mortgagee, a petition (w) must be presented, either by the committee of the (t) 11 Geo. 4 & 1 Wm. 4, c. 60, s. 15. (u) Id. s. 18. the administration of the trust property out of his hands; for the question of the insanity of a party ought (v) Order in Lunacy, 22nd Feb. not to be determined upon ex parte 1832. It has been the practice to refer petitions of this kind to a Master of the Court of Chancery, without requiring proof of notice of the intended application having been given to the trustee, or even an affidavit of his being a lunatic or of unsound mind. As every person ought to have an opportunity of disproving the charge of insanity, notice ought to be given to the trustee alleged to be a lunatic, of the intention of the parties to apply to the Court for an order to take statements and affidavits alone, but the trustee should have an opportunity of answering them; and, therefore, the party making such an application ought to be required to produce, in the first instance, a satisfactory affidavit, as well of the insanity of the trustee, as of notice of the intended application having been given to him or his agents. See ante, p. 35, n. (a); p. 101, n. (ƒ). (w) See Forms of such Petitions in the Appendix. estate, or by the mortgagor, or by some person having a beneficial interest in the trust property or money secured on mortgage, stating the deed creating the trust or mortgage, and such other facts as are necessary to shew the right of the party seeking to obtain the transfer; upon this petition, it will be referred to the Master to inquire and certify whether the party be a lunatic trustee or mortgagee within the meaning of the act of the 11 Geo. 4 & 1 Wm. 4, c. 60. If the Master finds that the party is a lunatic mortgagee within that act, another petition must be presented for confirming his report; upon which he will be directed to compute the principal and interest due in respect of the mortgage; and an order will be made, that, upon payment by the mortgagor to the committee of the estate of the lunatic, of what the Master shall compute for such principal and interest to the time of payment, the committee of the estate of the lunatic be at liberty, in his name and on his behalf, to reconvey the estate comprised in the mortgage to the mortgagor, or as he shall direct; such reconveyance to be settled by the Master in case the parties differ about the same. And a further order will be made for referring it to the Master to tax the costs incurred by both parties in obtaining the orders, and that such costs (after deducting the expense of the reconveyance, which will be directed to be paid by the mortgagor) be paid by the committee out of the lunatic's estate, and allowed in passing his accounts, and that notice of attending the Master be given to the mortgagor (a). Where the Master finds the party to be a lunatic trustee within the act, on confirming his report, the committee of the estate of the lunatic will be ordered to convey the land, or transfer the funds vested in him as such trustee, upon payment, by the party making the application to the committee, of the costs occasioned by, and consequent on, the petitions and orders, such costs having been taxed, and the conveyances settled, by the Master, in case the parties differ about the same. In some cases, where stock standing in the name of a lu (x) In re Baker, 1827. natic, either alone or jointly with other persons, as trustees or executors under a will, has been ordered to be transferred by the committee of the lunatic into the names of the other trustee, or new trustees, in trust for the parties entitled, the Lord Chancellor has directed all parties claiming any interest under the will in question, to execute a release and indemnity to the committee of the lunatic against all claims and demands, on account of the stocks so directed to be transferred (y). In one case, on the confirmation of the Master's report approving new trustees of a will in the place of the lunatic, it was ordered, that a proper release and indemnity of the lunatic and his estate should be given and executed to him and his committee, by such of the parties claiming any shares under the will in question, as the Master should approve, (such release to be settled by him in case the parties differed); and, upon its execution, the committee was ordered to transfer stock in the lunatic's name, into the names of the new trustees; and the costs of the proceedings were directed to be paid to the committee out of the trust fund (≈). But where stock standing in the name of a lunatic, as surviving trustee and executor under a will of a testator, was ordered to be transferred to the party beneficially entitled, and, from the length of time which had elapsed since the death of the testator it might fairly be presumed that all his debts and legacies had been paid, and his assets duly administered, such transfer was directed to be made, without requiring any release or indemnity (a). 4. When a lunatic trustee or mortgagee has not been so found by inquisition, and a conveyance is desired to be obtained, the Lord Chancellor will, on the petition of the mortgagor (b), or of the persons beneficially interested in the money due on mortgage or the trust property, refer the matter to a Master in Chancery, to inquire and certify (y) In re Palmer, 29th March, 1828; In re Craven, 8th July, 1829. See Simmons v. Bolland, 3 Mer. 547; Vernon v. Egmont, 1 Bligh, New (z) In re Brand, 24th May, 1831. (a) In re Steers, 24th July, 1829. (b) See Forms of such Petitions in the Appendix, |