Re The Marquis of Bute's Will
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1859 |
| Date | 29 January 1859 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 321
HIGH COURT OF CHANCERY
S. C. 5 Jur. (N. S.) 487.
Trustee Act, 1850, s. 10. 13 & 14 Vict. c. 60, s. 10. Vesting Order. Trustee out of the Jurisdiction.
[15] In re the maequis of bute's will. Jan. 29, 1859. [S. C. 5 Jur. (N. S.) 487.] Trustee Ad, 1850, s. 10. 13 & 14 Vid. c. 60, s. 10. Vesting Order. Trustee out of the Jurisdiction. Under the 10th section of the Trustee Act, 1850, the Court will now make an order vesting lands in a new trustee jointly with continuing trustees, notwithstanding the doubts suggested In re Watts' Settlement (9 Hare, 106) and In re Flyer's Trust (Id. 220). The late Marquis of Bute, by his will, devised and bequeathed freehold and leasehold lands and certain choses in action to Charles Stuart and others, upon trusts for the benefit of the present marquis, now an infant, for life, with remainders over. The will contained a power to appoint a new trustee in the place of any trustee therein named, who should remain abroad for more than twelve months. Charles Stuart having remained abroad for more than twelve months, the power was exercised by appointing William Stuart to be a trustee of the will in his place; and William Stuart now joined with the continuing trustees in presenting a petition under the Trustee Act, 18J30, praying [16] vesting orders quoad the lands and the right to sue on the choses in action. Mr. C. T. Simpson, for the Petitioners, submitted that, quoad the lands, the Court had power, under the 10th section of the Act,(l) to make a vesting order as prayed, notwithstanding the objection raised by Lord Justice Turner when Vice-Chancellor, that having regard to the words at the close of the 10th section, an order in a case like the present, vesting lands subject to the trust in the new and continuing trustees,, would have the effect of severing the joint-tenancy; since a conveyance by the trustee who is out of the jurisdiction would have that effect: Re Watts' Settlement (9 Hare, 106) and Re Flyer's Trust (Id. 220). It had been felt that this objection omitted to take notice of the word " duly " occurring at the close of the 10th section, it being obvious that a conveyance by the trustee, having the effect of severing the joint-tenancy, would not be "duly executed" within the meaning of the Act. And in Smith v. Smith (3 Drew. 72), Vice-Chancellor Kindersley, after consulting the Judges, had stated that " there was no longer any doubt upon the...
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