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punishment. It was at his lordship's suggestion that the ingredient of hard labour was added to the punishment of imprisonment.
This 24th section does not contain any provision similar to that inserted in the Fraudulent Trustee Act, (20 & 21 Vict., c. 54, s. 11) to the effect that the criminality of such suppressions or falsifications as are here spoken of, shall not avail to protect persons from making discovery, or giving evidence which they would have been liable to make or give, if the Act had not passed. It is questionable whether the omission of such a provision may not be found to impede defrauded purchasers or mortgagees in any attempt to retrieve their position, inasmuch as the guilty parties will now be able to decline answering interrogatories with respect to the transaction.
8. TRUSTEES, EXECUTORS, AND ADMINISTRATORS, (Secs. 26 -31.)—These sections are devoted to the relief of trustees, executors, and administrators. The 26th section relates to powers of attorney, and relaxes in favour of trustees and executors 2 the old strict rules, that no one could be the attorney of a dead man, and that no valid act could be done under a revoked power of attorney. A trustee, or executor, may now safely act on the supposition of the validity of a power of attorney, so far as the continuance of the life of the constituent, or the fact of the power not having been avoided, is concerned, provided that the death of the constituent, or other avoidance of the power, be not known to the trustee or executor. This enactment is in the nature of a privilege given to trustees and executors, by way, we may suppose, of compensation for the many difficulties and risks with which they are surrounded. Such a mode of remedying grievances is not the most satisfactory that could be adopted ; and we do not see any reason why the same privilege should not be extended to all classes of persons, so that any loss whatever, arising from the unknown avoidance of a power of attorney, might fall upon the person who gave it, or his estate, rather than upon
2 For brevity's sake we shall not, in the following remarks, specially name administrators; but it must be understood that all these clauses, -applying to executors and the estates of testators, apply equally to administrators and the estates of intestates,
The 27th and 28th sections exempt executors from personal liability, on the continuing covenants entered into by their testators, in leases and in conveyances on rent-charges. The exemption is obtained by satisfying all present liabilities, and making provision for any fixed and ascertained sum which the testator may be bound to lay out on the property; and in the one case, by assigning the lease; and in the other, by conveying to a purchaser the property out of which the rent-charge is payable. It is not, however, very evident how an executor, in the latter case, can convey the property, unless it should happen to be devised to him, or should be charged with debts, &c., so as to give him a power of sale. There is little to be said against the justice of making rent-chargers look to the property charged as. their security ; but we think that landlords have some right to complain, that their interests have been overlooked in providing for the security of the executors of their lessees. It does not appear that the assignment need necessarily be bona fide, (Hunter, p. 83); it may therefore be made to a man of straw, and the only protection given by the Act to the landlord is, that he may follow the assets of the testator into the hands of the persons amongst whom they may have been distributed. In many cases this provision will, of course, afford no protection whatever.
Mr. Hunter has pointed out (p. 83) that the statute does not apply to the case where a testator has assigned his lease in his lifetime. There is no apparent reason for the distinction, and the case must have been overlooked.
Section 29 gives to executors issuing the usual advertisements,' that complete protection which formerly they could obtain only by means of a suit in equity. It is an excellent provision; for it secures to the creditors of a deceased person, exactly the same opportunity of learning where and when to make their claims, and so of obtaining some share of the assets as has always been considered a benefit sufficient to compensate
| A form of advertisement, and the modes of advertising, are given in Mr. Hunter's edition, p. 90,
them for the loss of their common-law right to proceed against the executor at any time, while the estate is saved the heavy burden of the 6 costs of suit.”
Section 30 enables trustees and executors to obtain the opinion, advice, or direction of a judge of the Court of Chancery, on any point relating to the management of the trust property, or the assets of the testator, in a summary manner, without formal pleadings. Several applications under this section have already been made, both in open court and in the chambers of the judges; and one of the Vice-Chancellors is understood to have said, that in passing the clause the Legislature appears to have forgotten the existence of the Bar of England, and that many matters had come before him which ought to have been decided in the chambers of a conveyancing counsel. It may be doubted whether his Honour, in making these observations, sufficiently remembered that no opinion, however fairly obtained, of any counsel, however eminent, is any protection to an unfortunate trustee, who has been led to commit a breach of trust on the faith that the facts submitted were accurate, and that the law applicable to them was correctly laid down. Under the statute no trustee or executor will be liable, if he act in good faith on the opinion, advice, or direction obtained.
Section 31 provides that "every deed, will, or other instrument creating a trust,” shall be deemed to contain a trustee indemnity clause, “in the words or to the effect" set forth in the section. Conveyancers have always been loth to avail themselves of clauses of this nature, which are seldom expressed with sufficient accuracy to render a reliance upon them justifiable. The present section is no exception to the general rule. It does not apply in words to “shares,” which it may be contended are not included in the term “securities;” nor does it apply to any monies or securities which come into the hands of bankers, brokers, auctioneers, or others in the course of busi ness, without being deposited, as for instance on sales and
, purchases of lands, stocks, funds, or securities.
Moreover, there is an inaccuracy in the wording of the clause
supposed to be incorporated in every instrument of trust. This clause is given in the section in inverted commas, and commences as follows :- “ That the trustees or trustee for the time being of the said deed, will, or other instrument, shall be respectively chargeable,” &c. Now, to give any effect to the section, the words we have italicised must be construed to mean in the case of a deed—“these presents;" in the case of a will—“this my will;" and in the case of any other instrument_“ this instrument.” Probably they would be so construed, but a ViceChancellor, a Lord Justice, or a Lord Chancellor might have his doubts on the subject, more especially if there should happen to be any recited “deed, will, or other instrument,” to which the words might by any possibility be held to apply. In the bill there was a provision that the clause should be construed beneficially for trustees ; but the House of Commons did not approve of trustees being so benefited, and the provision was rejected.
9. Investments, (Sec. 32.). This section allows investments of trust property to be made in any government or real security in the United Kingdom, or on East India or Bank stocks. Two cases are reported
are reported as having arisen on this section; the first, Re Colne Valley and Halsted Railway Bill (29 L. J., Ch. 33), arose upon the petition of the parties interested, seeking to have certain money in court invested in the new East India stock, created under an Act passed on the same day with, but subsequently to, that which we are considering. Vice-Chancellor Wood appears to have thought that the Act gave no authority to make such an investment; but the Lord Chancellor thought that, whatever was the nature of the guarantee of the new stock, it was entitled to be called East India stock, and was therefore within the Act; the Lords Justices gave no opinion on this subject, but all the judges concurred in the determination that the Court ought not, in the exercise of its discretion, to sanction such an investment; and the Lord Chancellor, in the course of his judgment, referred to a letter he had received from Lord St. Leonards, expressing his intention to introduce a bill for the repeal of this clause, which was inserted (as we pointed out in our last Number, p. 191) during the passage of the bill through the House of Commons."
The other case to which we have alluded is In Re Miles' Trusts, (29 L. J., Ch. 47), in which an application was made by a trustee, under the 30th section, for the advice of the Master of the Rolls, as to the propriety of a proposed investment in Scotch real securities. The trust in this case was under an instrument dated prior to the passing of the Act, and his Honour thought that the section was not retrospective, so that the act in no way enlarged the discretion of trustees of existing instruments; his Honour, moreover, without giving any opinion on the effect of the usual final clause, “this act shall not extend to Scotland," did not, in his discretion, think right to advise a trustee to make an investment on Scotch securities.
We apprehend that there can be little doubt that Scotch investments are authorized by the Act; and on the question, whether the 32nd section be prospective only, we must observe that the words of futurity “shall not be forbidden,” seem to be used by the Legislature with reference to the future time at which the investment is made, and not to that at which the instrument creating the trust is executed. The form in which the question arose in Re Miles' Trusts, prevents that case from being held as a binding authority upon the point, which probably, sooner or later, will be settled in a hostile suit.
The insertion of this section in the Act, to meet the selfish views of particular persons, cannot be too severely reprehended; and it would be a just retribution if, on the ground of the clause not being retrospective, the trustees under the will we have referred to in our note were held responsible for retaining securities which the will did not authorize them to retain. It is
1 It is understood that the clause was introduced to suit the convenience of some persons interested in the estate of a certain testator, who died possessed of a very considerable amount of Bank Stock and Indian securities, but whose will contained no provision enabling his trustees to retain such investments.