Smith v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 1854 |
| Date | 02 December 1854 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 829
HIGH COURT OF CHANCERY
S. C. 3 Eq. R. 126; 24 L. J. Ch. 229; 18 Jur. 1047; 3 W. R. 95.
Trustee Act. Vesting.
[72] smith v. smith. Dec. 2, 1854. [S. C. 3 Eq. E. 126; 24 L. J. Ch. 229; 18 Jur. 1047; 3 W. E. 95.] Trustee Act. testing. On a suit to appoint new trustees, it appeared that of two remaining trustees of a marriage settlement, one had gone out of the jurisdiction, and the other was willing to act. Held, that a vesting order could be made to vest the estate in the new trustees to be appointed, for such estate as was vested in the continuing and absent trustee. By a marriage settlement made in the year 1830 certain freeholds and leaseholds and a sum of consols were assigned to three trustees, upon the usual trusts. Several changes of trustees had been made, and there were at present two trustees, one of whom had absconded, and was out of the jurisdiction. The original settlement was lost, and a suit had been instituted to establish the trusts according to an authenticated copy of the settlement, and for the appointment of new trustees. When the cause came on Mr. Dauney, for the Plaintiff, asked that two new trustees might be appointed in the room of those who had died, and of the one who had gone out of the jurisdiction, to act with the continuing trustee, and that the freeholds and leaseholds might be vested in these three trustees by the order of the Court. The Court had formerly refused to make such an order ; In re Watts (9 Hare, 106), and Re flyer's Trust (9 Hare, 220); but it was difficult to see why it should not be done. It was clear that under the 34th section of the Trustee Act, 1850, the Court had jurisdiction ; and that section was quite independent of the 10th section. The Vice-Chancellor Turner had seemed to think that these sections must be taken together; but the real intention of the Legislature was, by the 34th section, to provide 830 HOLSGBAVE V. HEDGES 3 DREWKY, 73. in general for any case which might not come within the other sections. But even under the 10th section a vesting order might be made; the first part of the section [73] was clear, and the latter part of the section was not .meant to control and confine the application of the former part, but merely to exemplify it. If this clause were construed as only enabling the Court to vest the estate of the trustee out of the jurisdiction, the Court might thus sever the estate, which, if done by a trustee, would certainly be a breach of trust. Mr. Torriano, for other parties. [the vice-chancellor wished to consult the other Judges, and the matter stood over till a subsequent day, when]- the vice-chancellor [Sir K. T. Kindersley] said the question was, whether the Trustee Act or that part of it which authorized the Court to make a vesting order was applicable to the case of two or more trustees, one of whom was out of the jurisdiction. In re Watts' Settlement (9 Hare, 106) and In re Plyer (9 Hare, 220), Sir G. J. Turner, L.J., then Vice-Chancellor, declined to make such an order. His Honor had taken pains to ascertain what was the practice, and he found that orders of this kind were now made by the Court, the Lords Justices themselves concurring in that view and making such orders. It must, therefore, be understood that there was no longer any doubt upon the construction of the act in this respect, and the Court would, without any hesitation, make vesting orders under circumstances such as in the present case. The order, therefore, would be to vest in the new trustees such estate as was vested in the continuing and absent trustees. Order accordingly.
English Reports Citation: 68 E.R. 1156
HIGH COURT OF CHANCERY
See In re Maudslay, Son & Field [1900], 1 Ch. 611.
[Ixxi] eeceiver. - ' : smith v. smith. June 13, 1853. [See In re Maudslay, Son & Field [1900], 1 Ch. 611.] A receiver appointed of real and personal estate where the devisee in trust and personal representatives were in Jersey, and therefore out of the jurisdiction. A motion...
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