The Short Title of this Act is “The Trustee Act, 1908.”

This Act is a consolidation of the enactments mentioned in the Schedule hereto.

All matters and proceedings commenced under any of the said enactments, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.

In this Act, if not inconsistent with the context,—

Where a lunatic or person of unsound mind is seised or possessed of any lands upon any trust or by way of mortgage, the Court may make an order that such lands be vested in such person in such manner and for such estate as the Court directs.

Where a lunatic or person of unsound mind is entitled to any contingent right in any lands upon any trust or by way of mortgage, the Court may make an order wholly releasing such lands from such contingent right, or disposing of the same to such person as the Court directs.

Where a lunatic or person of unsound mind is solely entitled to any stock or to any chose in action upon any trust or by way of mortgage, the Court may make an order vesting in any person the right to transfer such stock or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof.

Where a person is entitled jointly with a lunatic or person of unsound mind to any stock or chose in action upon any trust or by way of mortgage, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof, either in such person so jointly entitled as aforesaid, or in such last-mentioned person together with any other person the Court appoints.

When any stock is standing in the name of a deceased person whose personal representative is a lunatic or person of unsound mind, or when any chose in action is vested in a lunatic or person of unsound mind as the personal representative of a deceased person, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof, in any person the Court appoints.

Where an infant is seised or possessed of any lands upon any trust or by way of mortgage, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court directs.

Where an infant is entitled to any contingent right in any lands upon any trust or by way of mortgage, the Court may make an order wholly releasing such lands from such contingent right or disposing of the same to such person as the Court directs.

Where an infant is solely entitled to any stock upon any trust, the Court may make an order vesting in any person the right to transfer such stock or to receive the dividends or income thereof; and where an infant is entitled jointly with any other person to any stock upon any trust, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof either in the person jointly entitled with the infant, or in him together with any other person the Court appoints.

Where a person solely seised or possessed of lands upon any trust is out of the jurisdiction of the Court, or cannot be found, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court directs.

Where a person is seised or possessed of any lands jointly with a person out of the jurisdiction of the Court or who cannot be found, the Court may make an order vesting the lands in the person so jointly seised or possessed, or in such last-mentioned person, together with any other person, in such manner and for such estate as the Court directs.

Where a person solely entitled to a contingent right in any lands upon any trust is out of the jurisdiction of the Court or cannot be found, the Court may make an order wholly releasing such lands from such contingent right, or disposing of the same to such person as the Court directs.

Where a person jointly entitled with any other person to a contingent right in any lands upon any trust is out of the jurisdiction of the Court or cannot be found, the Court may make an order disposing of the contingent right of the person out of the jurisdiction or who cannot be found to the person so jointly entitled as aforesaid, or to such last-mentioned person together with any other person.

Where there have been two or more persons jointly seised or possessed of any lands upon any trust, and it is uncertain which of such trustees was the survivor, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court directs.

Where any one or more persons have been seised or possessed of any lands upon any trust, and it is not known as to the trustee last known to have been seised or possessed whether he is living or dead, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court directs.

Where a person seised of any lands upon any trust has died intestate as to such lands without an heir, or has died and it is not known who is his heir or devisee, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court directs.

Where any lands are subject to a contingent right in an unborn person or class of unborn persons who, upon coming into existence, would, in respect thereof, become seised or possessed of such lands upon any trust, the Court may make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or make an order which shall vest in any person the estate which such unborn person or class of unborn persons would, upon coming into existence, be seised or possessed of in such lands.

In every case where a person is jointly or solely seised or possessed of any lands or entitled to a contingent right therein upon any trust, and a demand has been made upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly authorised agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, the Court, if it is satisfied that such trustee has wilfully refused or neglected to convey or assign the said lands for the space of twenty-eight days after such demand, may make an order vesting such lands in such person in such manner and for such estate as the Court directs, or releasing such contingent right in such manner as the Court directs.

Where a person is jointly or solely seised or possessed of any lands or entitled to any stock upon any trust, and such person has been or is convicted of any crime punishable by imprisonment for a term of three years or upwards, the Court, on proof of such conviction, may appoint any person to be a trustee in the place of such convict, and may make an order for vesting such lands, or the right to transfer such stock and to receive the dividends or income thereof, in some person to be so appointed trustee.

Where a person to whom any lands have been conveyed by way of mortgage has died without having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage has’ been paid to a person entitled to receive the same, or such last-mentioned person consents to an order for the reconveyance of such lands, the Court may make an order vesting such lands in such person in such manner and for such estate as the Court directs, that is to say,—

An order of the Court made under any of the preceding provisions of this Act shall have the same effect as if the person by reason of whose incapacity, absence, death, uncertainty of existence or status, or disability such order has been made or has become necessary had been free from incapacity or disability, had survived, was within the jurisdiction, or otherwise capable of executing and had duly executed, made, and perfected, with all necessary formalities, a conveyance, assignment, or other proper assurance or disposition of the lands, stock, or chose in action so affected to the person to and in the manner in which such order purports to dispose of the same.

In every case where the Court is, under the provisions of this Act, enabled to make an order having the effect of a conveyance or assignment of any lands, or having the effect of a release or disposition of the contingent right of any person born or unborn, the Court (if it deems it more convenient) may make an order appointing a person to convey or assign such lands or release or dispose of such contingent right.

The conveyance, or assignment, or release, or disposition of the person so appointed shall, when in conformity with the terms of the order by which he is appointed, have the same effect in conveying or assigning the lands or releasing or disposing of the contingent right as an order of the Court would, in the particular case, have had under the provisions of this Act.

In every case where the Court is, under the provisions of this Act, enabled to make an order vesting in any person the right to transfer any stock transferable in the books of any bank or any other company or society established or to be established, the Court (if it deems it more convenient) may make an order directing any officer of such bank, company, or society at once to transfer or join in transferring the stock to the person named in the order.

This Act shall be a full and complete indemnity and discharge to the banks, companies, or societies, and their officers and servants, for all acts done or permitted to be done pursuant thereto.

Where a person is jointly entitled with any person out of the jurisdiction of the Court or who cannot be found, or concerning whom it is uncertain whether he is living or dead, to any stock or chose in action upon any trust, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, either in such person so jointly entitled as aforesaid or in such last-mentioned person together with any person the Court appoints.

Where a sole trustee of any stock or chose in action is out of the jurisdiction of the Court or cannot be found, or it is uncertain whether he is living or dead, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof, in any person the Court appoints.

Where a sole trustee of any stock or chose in action neglects or refuses to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action or any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose has been made to him by the person absolutely entitled thereto, the Court may make an order vesting the sole right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof in such person as the Court appoints.

Where any one of the trustees of any stock or chose in action neglects or refuses to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action according to the directions of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose has been made to him by such person, the Court may make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action in the other trustee of the said stock or chose in action, or in any person whom the Court appoints jointly with such other trustee.

Where a person neglects or refuses to transfer any stock, or to receive the dividends or income thereof, or to sue for or recover any chose in action or any interest in respect thereof, for the space of twenty-eight days next after an order of the Court for that purpose has been served upon him, the Court may make an order vesting all the right of such person to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof in such person as the Court appoints.

Where any stock is standing in the sole name of a deceased person, and his personal representative refuses or neglects to transfer such stock or receive the dividends or income thereof for the space of twenty-eight days next after an order of the Court for that purpose has been served upon him, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof in any person whom the Court appoints.

Where any stock is standing in the sole name of a deceased person, and his personal representative is out of the jurisdiction of the Court or cannot be found, or it is uncertain whether such personal representative is living or dead, or such personal representative neglects or refuses to transfer such stock or receive the dividends or income thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose has been made to him by the person entitled as aforesaid, the Court may make an order vesting the right to transfer such stock or to receive the dividends or income thereof in any person whom the Court appoints.

Any order made by the Court under this Act vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the transfer of any stock in any person shall vest the legal right to transfer such stock accordingly; and the person so appointed shall be authorised and empowered to execute all deeds and powers of attorney and to perform all acts relating to the transfer of such stock into his own name or otherwise, +o the extent and in conformity with the terms of the order.

All banks and all other companies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of the person so appointed as aforesaid, to the extent and in conformity with the terms of such order, as the said banks, companies, associations, or persons would have been bound and compellable to comply with the requisitions of the person in whose place such appointment has been made.

Every order made under this Act by the Court shall be a complete indemnity to all banks and all other companies and associations whatsoever, and all persons, for any act done pursuant thereto, and it shall not be necessary for any bank, company, association, or person to inquire concerning the propriety of such order, or whether the Court had jurisdiction to make the same.

Where an order is made under the provisions of this Act by the Court vesting the legal right to sue for or recover any chose in action or any interest in respect thereof in any person, such legal right shall vest accordingly; and thereupon the person so appointed may carry on, commence, and prosecute, in his own name, any action or other proceeding for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment has been made could have sued for or recovered such chose in action.

Where a decree is made by the Court directing the sale of any lands for the payment of the debts of a deceased person, every person seised or possessed of such lands, or entitled to a contingent right therein, as heir or under the will of such deceased debtor, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this Act; and the Court is hereby empowered to make an order wholly discharging the contingent right under the will of such deceased debtor of any unborn person.

Where a decree or order is made by the Court directing the sale of any lands for any purpose whatever, every person seised or possessed of such land or entitled to a contingent right therein, being a party to the action or proceeding in which such decree or order is made, and bound thereby, or being otherwise bound by such decree or order, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this Act; and in every such case the Court (if it thinks expedient, for the purpose of carrying such sale into effect) may make an order vesting such lands or any part thereof, for such estate as the Court thinks fit, either in any purchaser or in such other person as the Court directs.

Where a decree is made by the Court for the specific performance of a contract concerning any lands, or for the partition or exchange of any lands, or generally when a decree is made for the conveyance or assignment of any lands, either in cases arising out of the doctrine of election or otherwise, the Court may declare that any of the parties to the action wherein such decree is made are trustees of such lands or any part thereof within the meaning of this Act, or declare, concerning the interests of unborn persons who might claim under any party to the action or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of this Act; and thereupon the Court may make such orders as to the estates, rights, and interests of such persons, born or unborn, as the Court might, under the provisions of this Act, make concerning the estates, rights, and interests of trustees, born or unborn.

The Court may make declarations and give directions concerning the manner in which the right to any stock or chose in action vested under the provisions of this Act shall be exercised, and thereupon the person in whom such right is vested shall be compellable to obey such declarations and directions by the same process as that by which other orders under this Act are enforced.

In all cases where it is expedient to appoint a new trustee, and it is found inexpedient, difficult, or impracticable to do so without the assistance of the Court, the Court may make an order appointing a new trustee, either in substitution for or in addition to any existing trustee, and whether there is any existing trustee or not at the time of making such order.

The person who upon the making of such order as last aforesaid is trustee shall have all the same rights and powers as he would have had if appointed by decree in an action duly instituted.

The Court upon making an order for appointing a new trustee, either by the same or by any subsequent order, may direct that any lands subject to the trust shall vest in the person who upon the appointment is the trustee for such estate as the Court directs, and such order shall have the same effect as if the persons who before such order were the trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate.

The Court upon making an order for appointing a new trustee, either by the same or by any subsequent order, may vest the right to call for a transfer of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any chose in action subject to the trust, or any interest in respect thereof, in the person who upon the appointment is the trustee.

Any such appointment by the Court of a new’ trustee, and any such conveyance, assignment, or transfer as aforesaid, shall operate no further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have done.

An order under any of the provisions hereinbefore contained for the appointment of a new trustee, or concerning any lands, stock, or chose in action subject to trust, may be made upon the application of any person beneficially interested in such lands, stock, or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof.

An order under any of the provisions hereinbefore contained concerning any lands, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the moneys secured by such mortgage.

Where a person deems himself entitled to an order under any of the provisions hereinbefore contained, he may exhibit before the Registrar a statement of the facts whereon such order is sought to be obtained, and adduce evidence in support thereof; and if such evidence is satisfactory to the Registrar, he shall, at the request of the person adducing such evidence, give a certificate under his hand of the several material facts found by him to be true, and of his opinion that such person is entitled to an order in the form set forth in such certificate.

A person who has obtained such certificate may apply, by motion to the Court, for an order to the effect set forth in such certificate, or for such other order as such person deems himself entitled to upon the facts found by the Registrar.

A person entitled in manner aforesaid to apply for an order from the Court may, if he thinks fit, present a petition in the first instance to the Court for such order as he deems himself entitled to, and may give evidence, by affidavit or otherwise, in support of such petition before the Court, and may serve such person with notice of such petition as he deems entitled to service thereof.

On the hearing of any such motion or petition the Court, if it deems it necessary, may direct a reference to the Registrar to inquire into any facts which require such an investigation, or the Court may direct such motion or petition to stand over to enable the petitioner to adduce evidence or further evidence before the Court, or to enable notice or any further notice of such motion or petition to be served upon any person.

On the hearing of any such motion or petition, whether a certificate or report from the Registrar has been obtained or not, the Court may dismiss such motion or petition, with or without costs, or may make an order thereupon in conformity with the provisions of this Act.

Wherever in any cause or matter, either by the evidence adduced therein, or by the admissions of the parties, or by a report of the Registrar, the facts necessary for an order under this Act appear to the Court to be sufficiently proved, the Court, either on the hearing of the said cause or of any petition or motion in the said cause or matter, may make such order under this Act.

Where an order is made by the Court under this Act for the purpose of conveying or assigning any lands, or for the purpose of releasing or disposing of any contingent right, and such order is founded on an allegation of the personal incapacity of a trustee or mortgagee, or on an allegation that a trustee, or the heir or devisee of a mortgagee, is out of the jurisdiction of the Court or cannot be found, or that it is uncertain which of several trustees or which of several devisees of a mortgagee was the survivor, or whether the last trustee or the heir or last surviving devisee of a mortgagee is living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir, or has died and it is not known who is his heir or devisee—

then in any of such cases the fact that the Court has made an order upon such an allegation shall be conclusive evidence of the matter so alleged in any Court of law or equity upon any question as to the legal validity of the order.

But nothing herein contained shall prevent the Court from directing a reconveyance or reassignment of any lands conveyed or assigned by any order under this Act, or a redisposition of any contingent right conveyed or disposed of by such order; and the Court may direct any of the parties to any action concerning such lands or contingent right to pay any costs occasioned by the order under this Act when the same appears to have been improperly obtained.

The Court may exercise the powers herein conferred for the purpose of vesting any lands, stock, or chose in action in the trustee of any charity or society over which charity or society the Court would have jurisdiction upon action duly instituted, whether such trustee has been duly appointed by any power contained in any deed or instrument, or by the decree of the Court, or by order made upon a petition to the Court under any statute authorising the Court to make an order to that effect in a summary way upon petition.

Lands, stock, or choses in action vested in any person upon any trust or by way of mortgage, or any profits thereof, shall, notwithstanding the conviction for any offence of such trustee or mortgagee, remain in such trustee or mortgagee, or survive to his co-trustee, or descend or vest in his representative as if no such conviction had taken place.

This enactment shall not extend to or affect any beneficial estate, right, or interest liable to become vested in the administrator of a convict under the provisions of “The Prisons Act, 1908.”

Where an infant or person of unsound mind is entitled to any money payable in discharge of any lands, stock, or chose in action conveyed, assigned, or transferred under this Act, the person by whom such money is payable shall pay the same, in the name and with the privity of the Registrar, into any bank in trust in. any cause then depending concerning such money, or, if there is no such cause, to the credit of such infant or person of unsound mind, subject to the order or disposition of the Court; and the receipt of the cashier or proper officer of the bank shall be an effectual discharge for the money therein respectively expressed to have been received.

The Court, upon petition in a summary way, may order any money so paid to be invested in Government securities, and may order payment or distribution thereof, or payment of the dividends thereof, as the Court deems reasonable.

Where in any action in the Court it appears by affidavit that diligent search and inquiry have been made after any person made a defendant who is only a trustee, to serve him with a process of the Court, and that he cannot be found, the Court may hear and determine such action, and may make such absolute decree therein against every person who appears to the Court 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 or delivered his statement of defence thereto, and had also appeared by his counsel and solicitor at the hearing of such action.

But no such decree shall bind, affect, or in anywise prejudice any person against whom the same is made without service of process upon him as aforesaid, his heirs, executors, or administrators, for or in respect of any estate, right, or interest which such person has at the time of making such decree for his own use or benefit or otherwise than as a trustee as aforesaid.

Where any person, under the provisions of this Act, applies to the Registrar of the Court in the first instance and adduces evidence for the purpose of obtaining the certificate of such Registrar as a foundation for an order of the Court, the Registrar may order service of such application upon any person, or may dismiss such application, and may direct that the costs of any person consequent thereon shall be paid by the person making the same, and all orders of the Registrar under this Act shall be enforced by the same process as orders of the Court made in an action against a party thereto.

A vesting order made by the Court or a Judge thereof under this Act shall, unless a contrary intention appears, operate on and have the effect of vesting all property in the persons for such purpose named in such order.

The word “property” in this section, and also in section eighty hereof, shall, unless a contrary intention appears in the deed of appointment, extend to and include real and personal property, and any estate or interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest whatsoever.

The Court may order the costs and expenses of and relating to the petitions, orders, declarations, directions, conveyances, assignments, and transfers to be made in pursuance of this Act, or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively are made, or in such manner as the Court thinks proper.

Upon any petition being presented under this Act to the Court concerning a person of unsound mind the Court, if it thinks fit, may direct that an inquisition de lunatico shall issue concerning such person, and may postpone making any order upon such petition until a return has been made to such inquisition.

Upon any petition under this Act being presented to the Court it may postpone making any order upon such petition until the right of the petitioner has been declared in an action duly instituted for that purpose.

Every order made under this Act which has the effect of a conveyance or assignment of any lands or a transfer of any such stock as can only be transferred by stamped deed or instrument shall be chargeable with the like amount of stamp duty as it would have been chargeable with if it had been executed or made by the person seised or possessed of such lands or entitled to such stock.

Every such order shall be duly stamped for denoting the payment of the said duty.

The jurisdiction and powers conferred on the Court by this Act may be exercised and put in force by any Judge of the Court, or by any Registrar of the Court acting in pursuance of section twenty-four of “The Judicature Act, 1908,” either in open Court or at Chambers, according to the rules of the Court for the time being in force with reference to proceedings under this Act.

All trustees, executors, administrators, or other persons having in their hands any moneys belonging to any trust whatsoever, or the majority of them, may, on filing an affidavit shortly describing the instrument creating the trust according to the best of their knowledge and belief, pay the same (after notice thereof to the Registrar for the district within which such trustees or other persons, or the majority of them, reside) into the Treasury to the account of such Registrar in the matter of the particular trust (describing the same by the names of the parties as accurately as may be for the purpose of distinguishing it) in trust to attend the order of the Court.

All trustees or other persons having any bonds, debentures, stocks, or any other securities whatsoever standing in their names, or in the name of any deceased person of whom they are personal representatives, upon any trusts whatsoever, or the majority of them, may transfer or deposit such securities into or in the name of such Registrar after notice in the matter of the particular trust, describing the same as aforesaid, in trust to attend the order of the Court.

In every such case the certificate of the Minister of Finance of the payment of the said money, or of the transfer or deposit of such securities, shall be a sufficient discharge to such trustees or other persons for the money so paid or the securities so transferred or deposited.

Such orders as seem fit shall be from time to time made by the Court in respect of the trust moneys or securities so paid in, transferred, and deposited as aforesaid, and for the investment and payment of any such moneys, or of any dividends or interest on any such securities, and for the transfer and delivery out of any such securities, and for the administration of any such trusts, generally upon a petition to be presented to any Judge by such party or parties as to such Judge appear to be competent and necessary in that behalf.

Service of such petition shall be made upon such persons as the Court directs.

Every order made upon any such petition shall have the same authority and effect and shall be subject to rehearing and appeal in the same manner as if the same had been made in any action regularly instituted in the Court; and if it appears that any such trust funds cannot be safely distributed without the institution of one or more actions, the Judge may direct any such action to be instituted;

Any trustee as aforesaid may apply by petition to any Judge for an order or direction of the Court for the transfer, payment, or delivery of any trust moneys or securities as aforesaid, and, upon service of such petition and hearing of such parties as the Judge thinks fit, he may order such transfer, payment, or delivery to be made by any one or more of the trustees in whom such trust estate is vested without the concurrence of the other or others of them; and such order shall fully protect and indemnify all bankers, brokers, depositaries, or other persons acting under or in pursuance of such order.

The Minister of Finance shall from time to time publish, together with the public accounts of New Zealand, a statement of the various moneys and securities transferred, paid, or delivered to him as aforesaid and then remaining in his hands, distinguishing the several estates and the amounts belonging to them respectively.

Such payments and allowances shall from time to time be made out of such trust estates respectively to the Registrar and other persons employed by him in the management of such estates as a Judge orders.

Where an executor or administrator has given such notices as a Judge, upon application by petition to him, directs for creditors and others to send in to the executors or administrators their claims against the estate of the testator or intestate, such executors or administrators, at the expiration of the time named in such notices or the last of the said notices for sending in such claims, may distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executors or administrators have then notice, and shall not be liable for the assets or any part thereof so distributed to any person of whose claims such executors or administrators have not had notice at the time of distribution of the said assets, or a part thereof, as the case may be.

But nothing in this Act shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the persons who have received the same respectively.

Any trustee, executor, or administrator may, without the institution of an action, apply by petition to a Judge, or by summons upon a written statement to a Judge at Chambers, for the direction of such Judge on any question respecting the management or administration of the trust property, or the assets of any testator or intestate.

Such application shall be served upon, or the hearing thereof be attended by, all persons interested in such application, or such of them as the Judge thinks expedient.

The trustee, executor, or administrator, acting upon the direction given by the Judge, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator in the subject-matter of such application.

Provided that this Act shall not extend to indemnify any trustee, executor, or administrator in respect of any act done in accordance with such direction as aforesaid if he has been guilty of any fraud or wilful concealment or misrepresentation in obtaining such direction, and the costs of such application as aforesaid shall be in the discretion of the Judge to whom such application is made.

Where a trustee, executor, or administrator is not by some instrument creating his trust expressly forbidden to invest any trust fund on real securities in any part of New Zealand, or on Government securities, he may invest such trust fund on such debentures or securities, and he shall not be liable on that account as for a breach of trust, provided that such investment is in other respects reasonable and proper.

Where a trustee is dead, or remains out of New Zealand for the space of twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of so acting, then the persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by writing appoint another person to be a trustee in the place of such first-mentioned trustee.

On the appointment of a new trustee for the whole or any part of trust property—

Every new trustee so appointed shall have the same powers, authorities, and discretions, and may act in all respects as if he had been originally appointed a trustee by the instrument (if any) creating the trust.

The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will who dies before the testator; and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.

This section applies—

Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and such other person (if any) as is empowered to appoint trustees by deed consent to the discharge of the trustee, and to the vesting of the trust property in the co-trustees alone, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall by the deed be discharged therefrom under this Act without any new trustee being appointed in his place.

Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed and done.

This section applies—

Where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointer to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those persons, as joint tenants and for the purposes of the trust, that estate, interest, or right.

Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is mentioned in the last preceding subsection by the retiring and continuing trustees, and by the other person (if any) empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants and for the purposes of the trust, the estate, interest, or right to which the declaration relates.

For purposes of registration of the deed in any registry the persons making the declaration shall be deemed the conveying parties, and the conveyance shall be deemed to be made by them under a power conferred by this Act.

This section does not apply—

The receipt in writing of any person to whom any money is payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication or non-application thereof, and from inquiring into the necessity or propriety of any transaction in consequence whereof such money may have become payable.

Every trustee shall be chargeable for such moneys only as he has actually received, although he has joined in any receipt for moneys received by any co-trustee, and shall not be answerable for the act of any co-trustee, or for any loss which may arise by reason of any trust moneys being deposited in any bank or in the hands of any agent, or from the insufficiency or deficiency of any security upon which the trust moneys or any part thereof may be invested, nor for any loss in the execution of the trust, unless the same happens through his own wilful neglect or default.

Every trustee may, out of the moneys which come into his hands by virtue of the trust, retain to himself and allow to his co-trustee all costs, charges, and expenses which may have been reasonably incurred in or about the execution thereof; but no solicitor who acts as a trustee shall be allowed the costs of any professional services performed by him in the execution of the trust unless the contrary has been expressly declared by the instrument-whereby such trust was created.

It shall be lawful for a trustee to appoint a solicitor to be his agent to receive and give a discharge for any moneys or any valuable consideration or property receivable by such trustee under the trust by permitting such solicitor to have the custody of and to produce a deed or instrument having in the body thereof or indorsed thereon a receipt for such money, valuable consideration, or property, and such deed, instrument, or indorsed receipt being executed or signed by the trustee; and no trustee shall be chargeable with breach of trust by reason only of his having made or concurred in making any such appointment.

The producing of any such deed or instrument by such solicitor shall be sufficient authority to the person liable to pay or give such money, valuable consideration, or property for his paying or giving the same to the solicitor;

Provided that nothing herein shall exempt a trustee from any liability which he would have incurred if this Act had not passed in case he permits such money, valuable consideration, or property to remain in the hands or under the control of the solicitor appointed as aforesaid for a period longer than is reasonably necessary to enable such solicitor to pay or transfer the same to the trustee.

It shall be lawful for a trustee to appoint a bank or solicitor to be his agent to receive and give a discharge for any money payable to such trustee under or by virtue of a policy of insurance by permitting such bank or solicitor to have the custody of and to produce such policy with a receipt signed by such trustee; and no trustee shall be chargeable with a breach of trust by reason only of his having made or concurred in making any such appointment:

Provided that nothing herein shall exempt a trustee from any liability which he would have incurred if this Act had not passed, in case he permits such money to remain in the hands or under the control of the bank or solicitor appointed as aforesaid for a period longer than is reasonably necessary to enable such bank or solicitor to pay the same to the trustee.

This section applies only where the money or valuable consideration or property is received on or after the twenty-ninth day of August, one thousand eight hundred and ninety-one (being the date of the coming into operation of “The Trustees Act 1883 Amendment Act, 1891”).

No sale made by a trustee shall be impeached by any cestui que trust upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate.

No sale made by a trustee shall, after the execution of the conveyance or transfer, be impeached as against the purchaser upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily, depreciatory, unless it appears that such purchaser was acting in collusion with such trustee at the time when the contract for such sale was made.

No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid.

This section applies only to sales made on or after the date mentioned in the last preceding section.

No trustee lending money upon the security of any property shall be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of such property at the time when the loan was made; provided that it appears to the Court that in making such loan the trustee was acting upon a report as to the value of the property made by a person whom the trustee reasonably believed to be competent to value, instructed and employed independently of any owner of the property, whether such valuer is resident in the locality where the property is situate or elsewhere, and that the amount of the loan does not exceed two-thirds of the value of the property as stated in such report, and that the loan was made under the advice of such valuer expressed in such report.

No trustee lending money upon the security of any leasehold property shall be chargeable with breach of trust only on the ground that in making such loan he dispensed, either wholly or partially, with the production or investigation of the lessor’s title.

No trustee shall be chargeable with breach of trust only on the ground that, in effecting the purchase of any property, or in lending money upon the security of any property, he accepted a shorter title than the title which a purchaser is, in the absence of a special contract, entitled to require, if in the opinion of the Court the title accepted is such as a person acting with prudence and caution would have accepted.

This section applies to transfers of existing securities as well as to new securities, and to investments made as well before as after the coming into operation of this Act, but shall be subject to any action or other proceeding which was pending with reference thereto on the date mentioned in section eighty-four hereof.

This section applies to a loan upon any property of any tenure on which the trustee can lawfully lend.

Where a trustee has improperly advanced trust money on a mortgage security which would at the time of the investment have been a proper investment in all respects for a less sum than was actually advanced thereon, the security shall be deemed an authorised investment for such less sum, and the trustee shall only be liable to make good the sum advanced in excess thereof with interest.

This section applies to investments made as well before as after the coming into operation of this Act, but shall be subject to any action or other proceeding as mentioned in the last preceding section.

Where a trustee has committed a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the Court may, if it thinks fit, and notwithstanding that the beneficiary may be a married woman entitled for her separate use, whether with or without a restraint upon anticipation, make such order as the Court deems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming through him.

This section applies to breaches of trust committed as well before as after the coming into operation of this Act, but shall be subject to any action or other proceeding as mentioned in section eighty-six hereof.

If it appears to the Court that a trustee is or may be personally liable for any breach of trust (whether the transaction alleged to be a breach of trust occurred before or after the coming into operation of this Act), but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust, and for omitting to obtain the direction of the Court in the matter in which he committed such breach, then the Court may relieve the trustee either wholly or partly from personal liability for the same.

It shall be lawful for but not obligatory upon a trustee to insure against loss or damage by fire any building, rents, or other insurable property to any amount not exceeding the full insurable value of such building, rents, or property, and to pay the premiums for such insurance out of the income thereof or out of the income of any other property subject to the same trusts, without obtaining the consent of any person who may be entitled wholly or partly to such income.

With the leave of the Court, the trustees under any deed or will may from time to time expend a portion of the capital of the trust property on the improvement or development thereof, and may, with the like leave and for the like purpose, borrow moneys on the security of the trust property or any part thereof:

Provided that the total amount so borrowed shall not exceed in any case one-half of the value of the trust property.

Where the estate of a person deceased leaving a widow and surviving children or only surviving children does not exceed two hundred pounds in value after providing for all liabilities, it shall be lawful for the trustee of such estate to apply from time to time a reasonable portion thereof towards the maintenance and support of such widow and children, and towards the education of such children during their respective minorities.

In any case where no provision or no sufficient provision is made in a will or trust deed for paying moneys for the maintenance or advancement in life of the beneficiaries, a Judge, on an application made to him in Chambers in a summary way by a trustee, may order such sum out of the estate as the Judge thinks fit to be paid and applied from time to time for the maintenance or advancement in life of any beneficiary under age.

Any payment so made in accordance with the Judge’s order shall, in the event of such beneficiary attaining the age of twenty-one years, be deemed to be in full or in part satisfaction, as the case may be, of the moneys to which he would then become entitled, and shall, in so far as such Judge’s order extends, bar all claims of other persons who but for this enactment would have been entitled to the whole or to a distributive share of such estate.

In any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions shall apply:—

No beneficiary as against whom there would be a good defence by virtue of this section shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought such action or other proceeding and this section had been pleaded.

This section applies only to actions or other proceedings commenced after the first day of October, one thousand eight hundred and ninety-one, and shall not deprive any executor or administrator of any right or defence to which he is entitled under any existing statute of limitations.

It shall be lawful for a trustee, unless expressly forbidden by the instrument (if any) expressly creating the trust, to invest any trust funds in his hands in manner following, that is to say:—

When not otherwise required, any trust funds may be paid into any such bank on current account or otherwise.

Any such investments may be varied from time to time.

Every power conferred by the last preceding section shall be exercised according to the discretion of the trustee, but subject as regards paragraphs (a), (b), and (c) to any consent required by the instrument (if any) creating the trust with respect to the investment of trust funds.

The last preceding section applies as well to trusts created before as to trusts created after the coming into operation of this Act, and the powers thereby given shall be in addition to the powers conferred by the instrument (if any) creating the trust.

In addition to the authorities contained in section ninety-five hereof, it shall be lawful for a trustee, subject as mentioned in that section, to invest any trust funds in his hands in advance by way of mortgage on the security of—

subject in every case as follows, that is to say: No such advance shall be made—

The authority contained in “The Government Life Insurance Act, 1908,” to make investments of money on mortgage of freehold land shall be deemed to extend to and shall include an authority to make investments of money in any manner authorised under this section.

Notwithstanding anything hereinbefore contained, the Public Trustee is hereby prohibited from making advances as aforesaid on any Native land held on lease under “The West Coast Settlement Reserves Act, 1892.”

If any person at the time of his death is engaged in or carrying on a business, trade, or occupation, it shall be lawful for his trustee to continue to carry on the same so long as he considers necessary or desirable, and in so doing to employ part of the deceased’s estate, with power from time to time to increase or diminish the part of the estate so employed:

Provided that such trustee shall apply to a Judge of the Supreme Court in Chambers for an order sanctioning such carrying-on of the business, and such Judge may make such order, or such other order in the case as he thinks fit:

Provided also that the Court or a Judge may, on the application of any person interested in the estate, make an order that such business or trade shall not be carried on, or that the same may be carried on subject to conditions, or may make such other order as seems proper.

This section applies to any trustee who has carried on or is carrying on the business, trade, or occupation of any person who died before the coming into operation of this Act.

This section shall not prejudice any other authority to do the acts thereby authorised to be done.

Where an executor or administrator, liable as such to the rents, covenants, or agreements contained in any lease or agreement for a lease granted or assigned to the testator or intestate whose estate is being administered, has satisfied all such liabilities under the said lease or agreement for a lease as have accrued due and been claimed up to the time of the assignment hereafter mentioned, and has set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised or agreed to be demised, although the period for laying out the same may not have arrived, and has assigned the lease or agreement for a lease to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased to meet any future liability under the lease or agreement for a lease.

The executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, when necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the lease or agreement for a lease.

But nothing herein shall prejudice the right of the lessor or those claiming under him to follow the assets of the deceased into the hands of the persons to or amongst whom the said assets may have been distributed.

Any company authorised by law to act as a trustee may be appointed and may lawfully act as the sole trustee of any will or other instrument, notwithstanding that the same may provide for or direct the appointment of two or more trustees.

This section does not apply to any instrument which provides that such company shall not be appointed a trustee.

This section extends to all instruments and to all appointments of any company as a trustee respectively made before or after the coming into operation of this Act.

Where the account of trustees is kept at a bank, and the trustees, by writing under their hands communicated to the bank, arrange that such account shall be operated upon by cheques or drafts signed by some one or more of them, the bank shall be entitled to honour and pay such cheques or drafts as if the same had been signed by all such trustees, until the bank receives notice in writing of the revocation, by death or otherwise, of such arrangement.

Where any trustee is desirous of being discharged from his trust he shall be entitled to retire therefrom on passing his accounts before the Registrar of the Court, and giving notice of such retirement to his co-trustee or co-trustees (if any), and to such other person (if any) as is empowered to appoint a new trustee or trustees.

If such co-trustee or co-trustees, or such other person as aforesaid empowered to appoint a new trustee or trustees, or any of them, refuse or neglect to appoint a new trustee or to consent to such appointment in place of the trustee so retiring, or if such retiring trustee is the sole trustee haying power to appoint a new trustee, but the exercise of such power is impracticable or difficult without the assistance of the Court, it shall be lawful for such retiring trustee to apply in a summary way by originating summons to a Judge in Chambers for the appointment of a new trustee in his place.

The Judge may, upon such application for discharge or for the appointment of a new trustee, make an order appointing some proper person as trustee in place of the trustee so desirous of being discharged from his trust, and direct any accounts and inquiries to be made, and make an order discharging such trustee from the trust and from all liability in respect thereof, and may make such order as to costs or otherwise as he thinks fit, and may exercise any of the powers contained in sections forty-one to forty-four of this Act; and the person who upon the making of such order becomes trustee shall have the same rights and powers as he would have had if appointed by judgment in an action duly instituted.

If on any such application the Judge thinks proper to appoint the Public Trustee to be trustee in lieu of such retiring trustee, it shall be the duty of the Public Trustee to undertake the trust.

This section applies to trusts created either before or after the coming into operation of this Act.

Any trustee of real or personal property in New Zealand who for the time being is residing out of New Zealand, whether appointed by order of any Court, or by deed, will, letters of administration, or otherwise howsoever, and whether the order or instrument creating the trust or appointing the trustee is made or executed out of New Zealand or not, may, if not expressly prohibited by the instrument creating the trust, delegate by deed to any person residing in New Zealand all or any of the powers, authorities, and discretions vested in such trustee, so far as such powers, authorities, and discretions affect or are capable of being exercised over the trust estate in New Zealand.

Any trustee of real or personal property in New Zealand who for the time being is residing in New Zealand but may be about to depart therefrom, whether appointed by order of any Court, or by deed, will, letters of administration, or otherwise howsoever, and whether the order or instrument creating the trust or appointing the trustee is made or executed out of New Zealand or not, may in like manner exercise all or any of the powers of delegation by this Act conferred on any trustee residing out of New Zealand.

Every deed, act, matter, or thing done or executed by any person under such delegated powers, authorities, and discretions shall be as valid and effectual as if the same had been done or executed by the person who executed the deed by which such powers, authorities, and discretions were delegated.

Every power of attorney or other delegation by deed executed previous to the coming into operation of this Act by a trustee residing out of New Zealand, or if residing therein about to depart therefrom, delegating to a person residing in New Zealand the exercise over real or personal property in New Zealand of the whole or any of the trusts, powers, authorities, and discretions vested in such trustee, and every deed, act, matter, or thing heretofore or hereafter done or executed by virtue of such power of attorney or other delegation, shall be and be deemed to have been as good, valid, and effectual at law and in equity as if this Act had been in force at the time of the execution of such power of attorney or other delegation.

Sections eighty-four to eighty-eight, section ninety, and sections ninety-two to one hundred hereof shall apply as well to trusts created by instrument executed before as to trusts created after the coming into operation of this Act:

Provided always that, save as in those sections expressly provided, nothing therein contained shall authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by or under any Act, or by the instrument or instruments creating the trust, or by order of a Judge.

For the purposes of sections eighty-four to one hundred and seven hereof the expression “trustee” shall be deemed to include the Public Trustee, and an executor or administrator, and a trustee whose trust arises by construction or implication of law as well as an express trustee, and shall apply as well to several joint trustees as to a sole trustee.

The trustee under any deed or will having a power to lease land for a term of not less than fourteen years may from time to time, in granting a lease of land now or hereafter vested in such trustee, enter into an agreement with the lessee, his executors, administrators, or assigns, for re-leasing the same, and for payment by the incoming tenant of any such lands or hereditaments to the outgoing tenant thereof, or to the lessor on his behalf, of the value of buildings or other improvements on the demised land, or for the re-demising to the lessee, his executors, administrators, or assigns, of the demised premises in the event of no other person becoming entitled to a lease thereof.

For the purposes aforesaid the trustee may make or enter into all incidental covenants or agreements which may be deemed necessary or desirable, and the payment of the value of such buildings or other improvements shall not be deemed to be a fine, premium, or foregift.

The trustee under any deed or will may from time to time refer any questions, differences, or disputes between such trustee and any other person to arbitration in the same manner in all respects as any person may now do.

Notwithstanding anything in any Act or in any memorandum of association or articles of association, or rules, regulations, or by-laws of any company registered or constituted under or pursuant to any Act, any trustee or executor of any deceased person who was registered, or was equitably entitled to be registered, as the holder of a share in any such company may, with the consent of the directors thereof, and where the deceased was equitably entitled as aforesaid, then with the consent also of the registered holder, become registered as such trustee, executor, or administrator, and if so registered shall, in respect of such share, be subject to such and the same liabilities and no more as he would have been subjected to if such share had remained or been in the name of such deceased person.

Where a power or trust is given to or vested in two or more trustees jointly, then, unless the contrary is expressed in the instrument (if any) creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being.

This section applies only to trusts created by instruments coming into operation on or after the second day of November, one thousand nine hundred and one (being the date of the coming into operation of “The Trustee Amendment Act, 1901”).

Where any property is held by trustees in trust for an infant, either for life or for any greater interest, and whether absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence of any event before his attaining that age, the trustees may at their sole discretion pay to the infant’s parent or guardian (if any), or otherwise apply for or towards the infant’s maintenance, education, or benefit, the income of that property or any part thereof, whether there is any other fund applicable to the same purpose or any person bound by law to provide for the infant’s maintenance or education or not.

The trustees shall accumulate all the residue of that income in the way of compound interest by investing the same and the resulting income thereof from time to time on securities on which they are by the instrument (if any) under which the interest of the infant arises or by law authorised to invest trust money, and shall hold those accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arise, but so that the trustees may at any time, if they think fit, apply those accumulations or any part thereof as if the same were income arising in the then current year.

This section applies only if and so far as a contrary intention is not expressed in the instrument under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

This section does not apply to trusts created before the date mentioned in the last preceding section.