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expedient for the lord chancellor, intrusted as aforesaid, 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 of such land or stock to appoint new trustees, it is enacted, that in any such case it shall be lawful for the lord chancellor, intrusted as aforesaid, or the said Court of Chancery, to 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 that act, after hearing all such parties as the said court shall think necessary; and thereupon a conveyance or transfer shall be made and executed, according to the provisions thereinbefore contained, to or so as to vest such land or stock in such new trustee, either alone or jointly with any surviving or continuing trustee, as effectually and in the same manner as if such new trustee had been appointed under a power in any instrument creating or declaring the trusts of such land or stock, or in a suit regularly instituted (i).

By the twenty-third section, it is enacted, that where all the persons in whom any land may have been vested, in trust for any charity or charitable or public purpose, shall be dead,

(i) This clause of the act was intended to apply to a plain case without any ambiguity, or to the case of a recent creation of trust, in order to enable the court to appoint new trustees, although no suit has been instituted, or no power of appointing trustees contained in the original instrument creating the trusts. Whitley & Fishbourne, Lloyd & Goold, Ir. Rep. 23.—In re Nicholls, Ibid. 17.

The court has no jurisdiction under this clause, except where the party might apply by petition

under the former sections of the act

that is, in cases of disability by reason of infancy, lunacy, &c. where there is a right to apply under the former sections of the act, the court may appoint new trustees, although no bill has been filed, and although there is no power of appointing trustees in the instrument creating the trust; but the court has no general authority to appoint new trustees where there is no power in the settlement, unless where a bill is regularly filed.—In re Fitzgerald, Lloyd & Goold, Ir. Rep. 20.

it shall be lawful for the Court of Chancery or Exchequer, on the petition of the persons or body administering such charity or superintending such public purpose, or of any person on behalf thereof, to direct any master or other officer of the said court to cause two successive advertisements to be inserted in the London Gazette and in one or more of the newspapers circulated in the county, city, or place where such land shall be situated, giving notice that the representative of the last surviving trustee do, within twenty-eight days appear or give notice of his title to such master or other officer, and prove his pedigree or other title as trustee; and if no person shall appear to give such notice within such twenty-eight days, or the person who may appear or give such notice shall not, within thirty-one days after such appearance or notice, prove his title to the satisfaction of such master or other officer, then and in such case it shall be lawful for the said court to appoint any new trustees for such charity or charitable or public purpose; and such land may be conveyed to such new trustees by any person whom the said court respectively may direct for that purpose, by virtue of the provisions in that act, without the necessity of any decree (k).

By the twenty-fourth section, where in any suit in the Court of Chancery or Exchequer, it shall appear to the court by affidavit that diligent search and inquiry has been made after any person made a defendant who is only a trustee, to serve him with the process of the court, and that he cannot be found, the said court may hear and determine such cause, and make such absolute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the same manner as if such trustee had been duly served with the process of the court, and had appeared and filed his answer thereto, and had also appeared by his counsel and clerk at the hearing of such cause; but no such decree shall bind or prejudice any person against whom the same shall be made without service of process, in respect of any interest

(k) See stat. 2 Will. IV. c. 57, s. 3, post, p. 505.

which such person shall have at the time of making such decree, for his own benefit, or otherwise than as a trustee as aforesaid.

By the twenty-fifth section the lord chancellor, intrusted as aforesaid, and the Court of Chancery or Exchequer, may order the costs and expenses of and relating to the petitions, orders, directions, conveyances, and transfers to be made in pursuance of that act, or any of them, to be paid and raised out of or from the land or stock or the rents or dividends in respect of which the same respectively shall be made, or in such other manner as the said lord chancellor or court shall

think proper.

By the thirty-first section of the statute 11 Geo. IV. and 1 Will. IV. c. 70, which abolished the jurisdiction of the Court of Session of the county of Chester, and of the Courts of Great Sessions, in law and equity, in Wales (1), it is enacted, that in all cases where any trust for charitable uses or of a public nature shall have been cast upon the judges of the courts thereby abolished, by virtue of their offices, it shall be lawful for the lord high chancellor or keeper of the seals for the time being, or for the judges of assize upon their circuits in the county of Chester or principality of Wales, to appoint such other trustee or trustees as they shall think fit, by any writing under their hands, in the place of the former judge or judges; which trustee or trustees, so named, shall have the same power and authority, and be subject to the same rules and duties, as the trustee or trustees for whom he or they may be substituted.

By stat. 2 Will. IV. c. 57, s. 3, it is enacted, that where the person, or all the persons, if more than one, in whom any lands, hereditaments, rent-charge, or other real property may have been vested in trust for any charity or charitable or public purpose, shall be dead, it shall be lawful for the said Court of Chancery or the said Court of Exchequer (sitting as a court of equity) on the petition of his majesty's attorney general, or of the persons or body administering such charity

(1) Ante, p. 280, n. (r).

or superintending such public purpose, or of any person on behalf thereof, to direct any master or other officer of the said courts respectively to cause two successive advertisements to be inserted in the London Gazette, and in one or more of the newspapers circulated in the county, city, or place where such land, hereditaments, or real property, or the lands or hereditaments out of which such rent-charge is issuing, shall be situated, giving notice that the representative or representatives of the person of the last survivor of the persons in whom any land, hereditaments, rent-charge, or other real property may have been vested in trust as aforesaid, do within twenty-eight days appear or give notice of his or their title to such master or other officer, and prove his or their pedigree or other title as trustee; and if no person shall appear to give such notice within such twenty-eight days, or the person or persons who may appear or give such notice shall not, within thirty-one days after such appearance or notice, prove his or their title to the satisfaction of such master or other officer, then and in such case it shall be lawful for the said courts respectively to appoint any new trustees for such charity or charitable or public purpose, in case no trustees for such charity or purpose duly appointed shall then be existing; and such land, hereditaments, rent-charge, or other real property may be conveyed to such new trustees when so appointed by the said courts respectively, or to the existing trustees previously duly appointed, as the case may be, by any person whom the said courts respectively may direct for that purpose by virtue of the provisions in that act, without the necessity of any decree (m).

(m) The following order was made in pursuance of this act: "It is ordered that it be referred to the master, in rotation, to inquire and state to the court who is the heirat-law of Dr. W. S., deceased, the founder of the charity in the plead ings mentioned, commonly called Dr. S.'s almshouses; and for that purpose the said master is to cause

an advertisement to be published in the London Gazette, and in such other papers as he shall think fit, for any person or persons claiming to be heir-at-law or heirs-at-law of the said testator, to come in before him and make out their descent; and the said master is to fix a peremptory day for that purpose; and such of them as shall not come in

Where the founder of a charity, consisting of a sum invested in the funds, appointed persons filling annual offices to be trustees, the court, on petition, directed other trustees to be appointed in their place, on account of the difficulty with respect to the investment of the funds, from the circumstance that two of the trustees, being changed annually, the dividends could not be received without frequent transfers; but the nomination and approval of the objects of the charity was left to those appointed by the founder (n).

Trustees of a charity are never appointed without a reference to the master, though the amount of the fund be extremely small; but he may be ordered to appoint the trustees at once, without coming back to the court (o).

By the 71st section of statute 5 & 6 Will. IV. c. 76, for regulating municipal corporations in England and Wales, after reciting that divers bodies corporate then stood seised or possessed of sundry hereditaments and personal estate, in trust, in whole or in part, for certain charitable trusts, and that it was expedient that the administration thereof be kept distinct from that of the public stock and borough fund, it is enacted," that in every borough in which the body corporate, or any one or more of the members of such body corporate, in his or their corporate capacity, now stands or stand solely, or together with any person or persons elected solely by such body corporate, or solely by any particular number, class, or description of members of such body corporate, seised or possessed for any estate or interest whatsoever of any hereditaments, or any sum of money, chattels, securities for money, or any other personal estate whatsoever, in whole or in part, in

by the time to be therein limited, are to be excluded the benefit of this decree; and it is ordered that the said master do approve of a scheme for the future regulation of the said charity, and for the nomination and election of persons to be admitted into the said almshouses as vacancies occur, and for the fu

ture appointment of trustees of the said charity from time to time.”— Attorney General v. Watson and others, Reg. lib. A. 1833, fol. 1067. (n) Ex parte Blackburne, in re Taylor's Charity, 1 Jac. & Walk. 297.

(0) Attorney General v. The Earl of Arran, 1 Jac. & Walk. 229.

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