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' ' Appears to be a clear and correct statement of the law and practice on the subject, and can be recommended to those who have to deal with marine policies." — Law Quarterly Review. "Mb. Allen .... has been able to bring much practical knowledge to bear upon the treatment of a number of questions which he discusses with marked ability and learning." — Law Journal. " A clear and accurate analysis of the statute and case law on the subject." — Law Times. " Again I strongly recommend Mb. Allen's masterly work to all who have any connection with marine insurance." — Fair Play. " Should find a place in the office library of every under- writer and broker." — The Syren, " A reliable and clear guide on the whole position." — Shipping World. " Mb. Allen has done the work well." — North British Economist. " Mb. Allen has collected his material in a very careful fashion, and placed the information before his readers in a clear and succinct form." — Tost Magazine. THE LAW OP CORPORATE EXECUTORS AND TRUSTEES. BY ERNEST KING ALLEN, OF THE INNEB TEMPLE, BAEEISTEK-AT-LAW, Author of " The Stamp Duties on Sea Insurances,' ' ' The quality most useful and most valuable to society is the faculty of forming a right judgment ; and this faculty can only be developed by the discipline which comes from methodical study." " Thoughts on Education," by Mandell Creighton. -LONDON: STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, igato $ttMi0h£r». 1906. t5 6 3oS%~ IBeoicateo (bg pemtieaioit) to Sir Jtebile % nbbock, &&JB.&, (Souernor of Ike Corporation of the Hog* 1 Gtehange JUattrante. ( vii ) PEEFACE. The many technical questions which beset the Corporate Executor and Trustee at the opening of his youthful career in this country, have recently been brought within the daily experience and interested attention of the present writer, who has been led to think that, by publishing some of the conclusions at which he has arrived, others may perhaps be saved a needless expen- diture of time over the same problems; or, in any event, may have suggested to them views alternative to those already arrived at indepen- dently. No text-book at present exists upon this subject, nor has any writer so far devoted attention to it. There lies awaiting fresh development a large area of law, research into which, coupled with a Vlll PREFACE. wide use of analogy, will serve to construct authority; and, as authority is established, so it is hoped to expand this present handbook into a larger and more useful work. In conclusion, the writer desires to express his deep indebtedness to Mr. W. Douglas Edwakds, LL.B., of Lincoln's Inn, who generously placed at his disposal very many of the notes on which this handbook is based, and has most kindly made many valuable suggestions during the pro- gress of the work. For any opinions expressed the writer is, of course, solely responsible. ( ix ) TABLE OF CONTENTS. PAGE Preface v ii Table of Contents ix Table of Cases cited xi Part I. Corporations as Executors and Trustees. Legal capacity to act 1 Corporations as Executors. General capacity 5 Conditions of grant of administration to Corporation's Nominee 1 1 Legal position of the Syndic as administrator 11 Liability of the Company-Executor for acts of its Syndic 15 Acts of the Company-Executor before grant of administration. 18 As to the rule that an Executor of an Executor represents the first Testator 19 Eight of Retainer by Corporate Executor 21 Effect of appointment of Co-Executors, one being a Company. 22 Appointment of Company as Executor for distribution as on an intestacy 27 Appointment of Company as Trustee as well as Executor of a Will 28 Application of the Judicial Trustees Act, 1896, to Executorship . 30, 65 X TABLE OP CONTENTS. Part II. Corporations as Trustees. PA.QE Appointment of Company as original Trustee 31 Appointment of Company as new Trustee to till a vacancy in the office 31 Appointment of Company as Trustee merely for protection of the Trust property 40 Custody of the Title Deeds by Company-Trustee 41 Liability of Company-Trustee for misfeasance of its servants or agents 42 Part III. Remuneration of Company for services as Executor or Trustee. Nature and effect of contract for remuneration of Executor . . 45 Contract for appointment as well as remuneration of Executor 49 Contract for appointment and remuneration, or for remunera- tion of Trustee of a settlement 54 Matters affecting the rights of an Executor or Trustee under a contract for remuneration 55 Testamentary provisions for remuneration of Executors and Trustees 58 General Observations. Corporations and the tenure of Lands : Copyholds 60 Conversion of Copyholds under a Will 62 Who can convey, the Syndic or the Company ? 63 Application of the Judicial Trustees Act, 1896, to Company-. Executors and Trustees 65 Company-Executors and Trustees and amalgamation 73 Legacies which impose on Executors the duties of Trustees ... 74 Special Executor for private papers 75 Remuneration of Company-Executor and Trustee, what does it include ? 76 INDEX 87 ( si ) TABLE OF CASES CITED. A. PAGB A.-G. r. Kfihler, 9 H. L. C. 654. Heard, 1861 12,13 Ames, Re, Ames v. Taylor, 25 Ch. D. 72. Heard, 1883 82 Anon., 1 Freeman, 287. Heard, 1675 20 Anstruther t>. Chalmer, 2 Sim. 1. Heard, 1825-6 13 B. Baker r. Martin, 8 Sim. 25. Heard, 1836 57 Barwick's Case, L. R. 2 Ex. 259. Heard, 1867 16 Bayard, In the goods of, 1 Rob. Rep. 768. Heard, 1849 20, 63 Baylis, In the goods of, 2 Sw. & Tr. 613. Heard, 1862 25 Beeman, Re, (1896) 1 Ch. 48 47, 53 Blackwell, In the goods of, 2 P. D. 72. Heard, 1877 26 Brazier v. Hudson, 8 Sim. Rep. 67. Heard, 1836 19 Brenehley v. Lynn, 2 Rob. 468. Heard, 1852 28 Brogden, Re, Billing v. Brogden, W. N. (1888) 238 36 Brookes e. Stroud, 1 Salk. Rep. (ed. 1795) 2 23 Brookman's Trust, L. R. 5 Ch. App. 182. Heard, 1869 51 Bronghton v. Broughton, 5 De G. M. & G. 160. Heard, 1855 76 Brown, Re, 4 Eq. Cas. 464. Heard, 1867 83 Brownrigg v. Pike, 7 P. D. 61. Heard, 1882 28 Bryars v. Goddard, Hob. 250 21 Carpenter v. The Queen's Proctor, 7 P. D. 235. Heard, 1882 7 Cassidy, In the goods of, 4 Hag. 360. Heard, 1832 14, 15 Cecil v. Langdon, 28 C. D. 1. Heard, 1884 (C. A.) 34 XU TABLE OF CASES CITED. PAGB Chambers v. Bicknell, 2 Hare, Rep. 536. Heard, 1843 12 Chapman v. Browne, (1902) 1 Ch. 785 71 Chappie, Re, 27 Ch. D. 584. Heard, 1884 80,82 Clarkson v. Robinson, (1900) 2 Ch. 722 82 Clews v. Grindey, (1898) 2 Ch. 593 71 Cooke v. Stevens, (1898) 1 Ch. 162 25 Corsellis, Re, 34 Ch. D. 675. Heard, 1887 76 Coswall v. Morgan, 2 Cas. temp. Lee, 571. Heard, 1728 22 Cottam v. Eastern Counties Rail. Co., 1 John. & H.243. Heard, 1860 41 Cummins v. Cummins, 3 J. & L. 64. Heard, 1845 24 Cunningham's Contract to Wilson, "W. N. 258. Heard, 1877 35 D. Darke, Elizabeth, In the goods of, 1 Sw. & Tr. 516. Heard, 1859.. 7, 11 De Beil v. Thompson, 3 Beav. 469. Heard, 1841 61 Dewell, Re, 4 Drew. 269. Heard, 1858 12, 13 Douglas v. Arohbutt, 2 De G. & J. 148. Heard, 1858 55 Dove v. Everard, 1 Russ. & M. 231. Heard, 1830 25 Doyle v. Blake, 2 Soh. & L. 231. Heard, 1804 16, 40 Duncan v. "Watts, 16 Beav. 204. Heard, 1852 58 E. Earl of Stamford', Re, (1896) 1 Ch. 288 33, 39 East Dulwich Building Society, 68 L. J. Ch. 196. Heard, 1899. ... 69 Ellis, Re!*17 Fq. 409 ; 43 L. J. Ch. 444. Heard, 1874 74 F. Fairweather, In the goods of, 2 Sw. & Tr. 588. Heard, 1862 27 Fernie, In the goods of, 6 Notes of Cases. Heard, 1849 26 Fish, Re, Bennett v. Bennett, (1893) 2 Ch. 413 82, 83 Forest of Dean, &c. Co., 10 C. D. 450. Heard, 1879 61 Foster v. Abraham, L. R. 17 Eq. 351. Heard, 1874 39 Foster *. Ridley, 4 De G. J. & S. 452. Heard, 1864 81 Fountaine v. Pellet, 1 Ves. 336. Heard, 1791 77 Franks v. Cooper, 4 Ves. 763. Heard, 1799 , 21 Fraser v. Palmer, 4 T. & C. 515. Heard, 1841 76 G. G. ST. Rail. Co. v. Witham, L. R. 9 C. P. 16. Heard, 1873 50 Goldsborough, In the goods of , 1 Sw. & Tr. 295. Heard, 1 859 ... . 11 Gordon, Re, 6 Ch. 531. Heard, 1877 29 Gould v. Fleetwood, 3 W. Peere Wms. (ed. 1826). Heard, 1732 . . 56 TABLE OF CASES CITED. Xlll H. PAGE Hall v. Bromley, 35 Ch. D. 642 (C. A.). Heard, 1887 63 Hammersley v. De Biel, 12 01. & F. 45. Heard, 1845 51 Harbin v. Darby, 28 Beav. 325. Heard, 1860 80, 81 Hargreaves, Re, 44 Ch. D. 236 (C. A.). Heard, 1890 48 Harrison v. Graham 16, 25 Haynes, In the goods of, 3 Curteis, 75. Heard, 1842 26 Hayward, Re, (1901) 1 Ch. 221 46 Hensloe's Case, 9 Co. Rep. 34—40 23 Hollingsworth v. Grasett, 15 Sim. 52. Heard, 1842 59 Horton v. Brocklehurst (No. 2), 29 Beav. 504. Heard, 1858 26 Houghton, Re, Hawley v. Blake, (1904) 1 Ch. 622 72 Hunt's Case, P. 288. Heard, 1896 3,7,10,11 J. Jacomb v. Harwood, 2 Ves. Sen. 267. Heard, 1751 65 James v. Frearson, 1 T. & C. 370. Heard, 1842 16 Jeffcock's Trusts, 51 L. J. Ch. 607. Heard, 1882 34 Jobson v. Palmer, (1893) 1 Ch. 71 42, 44 Johnson v. Warwick, 17 C. B. 516. Heard, 1856 19 K. Kay, Re, (1897) 2 Ch. 518 67, 68, 70 Kemp's Settled Estates, 24 Ch. D. 485. Heard, 1883 33,39 Kerwil's Case, 12 Edw. IV 5, 6 Kilbee v. Sneyd, 2 Molloy, 186. Heard, 1828 26, 40 L. Lambert r. Still, (1894) 1 Ch. 73 (C. A.) 83 Lancaster, In the goods of, 1 Sw. & Tr. 464. Heard, 1859 28 Lees v. Sanderson, 4 Sim. 28. Heard, 1830 26 Letterstedt v. Broers, 9 App. Cas. 371. Heard, 1884 44 Lewis v. Matthews, L. R. 8 Eq. 281. Heard, 1869 59 Limmer v. Every, 4 Leon. 58 (Eliz.) 20 Loomes v. Stotherd, 1 S. & S. Rep. 468. Heard, 1823 46, 53 Lord de Clifford v. Quilter, (1900) 1 Ch. 707 67,71 Lowe v. Shields, (1902) 1 Ir. Rep. 320 26 Lowry v. Fulton, 9 Sim. 104. Heard, 1838 25 XIV TABLE OF CA8ES CITED. M. PAQE Marshall v. Parsons, 9 C. & P. 656. Heard, 1841 *. 77 Martin, In the goods of, 90 L. T. 264 ; 20 Times L. B. 257. Heard, 1904 8, 11, 22 Moore v. Frowd, 3 My . & Craig, 45. Heard, 1837 56, 78 Morris v. Morris, L. B. 10 Ch. App. 68. Heard, 1874 48 Muoklow v. Puller, Jacob's Eep. 198. Heard, 1821 29, 52 Murguia, In the goods of, 9 P. D. 236. Heard, 1884 20 N. National Trustees, &o. Co. of Australasia v. The General Finance, &o. Co., P. C. (1905) A. C. 373 ; The Times, 22 May, 1905 43, 67 Norris, Be, 27 C. D. 333. Heard, 1884 33, 39 Norton v. Molineux, Hob. 246 20 Oliver v. Court, 8 Pr. 127. Heard, 1820 26 Orr v. Newton, 2 Cox, 274. Heard, 1791 25 P. Pawley v. London and Provincial Bank. (1900) 1 Ch. 58 24, 64 Perrins v. Bellamy, (1898) 2 Ch. 526 67, 68, 70 Pipon v. Wallis, 1 Lee Eccl. Eep. 402. Heard, 1753 13, 15 Pis, Be, "W. N. (1901) 165 66 Player v. Foxhall, 1 Bussell, 538. Heard, 1826 46 Prince's Case 21 B. Baw v. Cutten, 9 Bing. 96. Heard, 1832 43 Beid v. Beid, 30 Beav. 388. Heard, 1862 . .-. 39 Eoberts, Be, Knight v. Eoberts, 76 L. T. 479. Heard, 1897 72 Bobertsw. Security Ins. Co., (1897) 1 Q. B. Ill 55 Eobinson v. Omanney, 21 C. D. 780. Heard, 1882 51 Eobinson v. Pett, 3 P. W. 249. Heard, 1734 77,80,81 Eogers v. Frank, 1 T. & Jerv. 409. Heard, 1827 25 Eoskelly v. Godolphin, Sir T. Eaymond's Eep. 483 21 TABLE OF CASES CITED. XV S. PAGE Sheppard's Settlement, Re, W. K. (1888) 234 33 Sherwood, Ee, 3 Beav. 388. Heard, 1840 55, 77 Singlehurst v. Tapsoott S.S. Co., W. N. (1899) 133 68 Smith v. Everett, 27 Beav. 454. Heard, 1859 65 Somerville and Turner's Contracts, In re, (1903) 2 Ch. 583 61 Speight v. Gaunt, 9 App. Cas. 1 ; 53 L. J. Ch. 419 ; 50 L. T. 330. Heard, 1883 42, 66, 80, 81 Stevens, Re, (1898) 1 Ch. 162 18 Strode v. Russel, 2 Vernon, 620. Heard, 1701 26 Stuart, Re, (1897) 2 Ch. 583 ; W. N. (1897) 84 67, 68, 69 Suwerkrop v. Day, 8 A. & E. 624. Heard, 1838 12 T. Tempest, Re, L. R. 1 Ch. 487. Heard, 1866 37, 38 Thompson's Settlement, In re, (1905) 1 Ch. 229 ; 74 L. J. Ch. 133 . . 31, 33, 36 Thorley, Re, (1891) 2 Ch. 613 58 Tindal, Ex parte, 1 M. & Scott, 607. Heard, 1832 45 Townsend, Re, (1895) 1 Ch. 716 63 Turner, Re, Barker v. Ivimey, (1897) 1 Ch. 536 67, 68, 69 W. Walters v. Pfeil, 1 Mood. & Mali. 362. Heard, 1829 23 Wankford v. Wankford, 1 Salk. 299. Heard, 1700 46 "Watkins ». Brent, 7 Sim. 512. Heard, 1835 23,24 Webb v. Earl of Shaftesbury, 7 Ves. 480. Heard, 1802 77 Webster v. Spencer, 3 Barn. & Aid. 360. Heard, 1820 23 Weiss v. Dill, 3 My. & Keen, 26. Heard, 1834 ....80,82 West of England Bank v. Murch, 23 Ch. D. 138. Heard, 1883 .... 35 Wheeler and de Rochow, Re, (1896) 1 Ch. 320 34 White, Re, (1898) 2 Ch. 217 58 Wilkinson v. Wilkinson, 2 S. & S. 237. Heard, 1825 77, 81 Williams, Re, (1904) 1 Ch. 52 47 Willis v. Kibble, 1 Beav. 559. Heard, 1839 77, 81 Wynne v. Tempest, (1897) 1 Ch. 110 ; W. N. (1897) 43 70 X. Xenos r. Wickham, L. R. 2 H. L. 296. Heard, 1866-7 55 T. Young *. Naval and Mil. Co-op. Soo., (1905) 1 K. B. 693 61, 76 THE LAW OF CORPORATE EXECUTORS & TRUSTEES. Part I. CORPORATIONS AS EXECUTORS AND TRUSTEES. Legal Capacity to Act. A company intending to act in either of the above oapa- Capacity cities must first arm itself with the necessary power. This power will be obtained either in — (1.) The statute incorporating the company ; or in (2.) A private bill promoted by the company ; or in (3.) The memorandum of association or deed of settle- ment, either as originally framed upon the formation of the company, or as altered by special resolution under the Companies (Memo- randum of Association) Act, 1890, confirmed by the Court. Under this Act (sect. 1, sub-sect. 5) the Court may Memorandum confirm, either wholly or in part, an alteration in a ciation." company's memorandum of association, if it appears that Confirmation the alteration is required in order to enable the company — (a) To carry on its business more economically or more efficiently ; or (b) To attain its main purpose by new or improved means ; or (c) To enlarge or change the local area of its opera- tions; or A. Ii CORPORATE EXECUTORS AND TRUSTEES. (d) To carry on some business or businesses which under existing circumstances may conveniently or advantageously be combined with the business of the company ; or (e) To restrict or abandon any of the objects specified in the memorandum of association or deed of settlement. It is presumed, then, that an insurance company, or a bank, registered under the Companies Acts, proposing to undertake tbe duties of executors and trustees as a busi- ness, and having no original powers in tbat respect, can petition the Court to exercise its power of confirmation of the special resolution, when agreed to, under the authority given to the Court in paragraph (d) above. As just indicated, this expeditious and economical method of obtaining powers is only available (sect. 1 (1) of the Act of 1890) to companies registered under the Companies Acts, 1862—1900. Part VII. of the Act of 1862 contains provisions for the registration of companies existing before registration ; but it is not to be supposed, nor suggested here, that any company not under the Companies Acts would register thereunder merely to secure this quicker and cheaper method of obtaining powers. Sometimes the original memorandum of association is framed exceedingly wide, e.g., a clause authorising the company to carry on the particular business which is its main object, "and also to carry on various other businesses which it may probably or possibly be desirable to carry on in conjunction therewith," is not uncommon. The object of such a general clause is to avoid the necessity of seeking the confirmation of the Court under the Act of 1890, whilst it gives the company full freedom to develop its business. Upon such a memorandum an CORPORATIONS AS EXECUTORS AND TRUSTEES. insurance company or a bank might propose to transaot trustee and executor business -without further express authority. But, regard being had to the reasonable anxieties of testators and settlors that there should be no doubt cast upon the capacity of their executors and trustees, it is submitted here, and experience confirms it, that clear express authority will better secure confidence. By whichever of the three methods first set out express powers are obtained, it will generally be found that the form of words in which the power is taken authorises the company " to act as executors and trustees," or "to undertake and transact any business ordinarily known as trustee and executorship business " (a) ; or " the under- taking and executing of the office of trustee, executor, receiver and liquidator ; and the undertaking and execu- ting of all kinds of trusts, both public and private "(b); or words to the like effect. There will also appear the usual enabling clause : — " To Enabling do all such things as may be incidental or conducive to the attainment of the above objects." But, presumably, a company expressly empowered to transact executor and trustee business may do acts within the scope of this business without resort to the general words of the enabling clause. The forms of words of the express powers, given above, have been frequently before counsel, both on behalf of the companies adopting them, as well as on behalf of testators (a) This form of words appears in the private Act of the Corporation of the Eoyal Exchange Assurance, Schedule. The fundamental laws of the corporation, 1 Edw. VII. c. x. (1901). lb) This form is taken from the memorandum of association of the Trustees and Executors and Securities Insurance Cor- poration, Limited. See Hunt's Case, (1896) P. 288. b2 CORPORATE EXECUTORS AND TRUSTEES. and settlors, and the opinion given has always been that such words constitute a clear authority for the transaction of executor and trustee business (c). (c) In the present state of parliamentary opinion, no company should expect to obtain greater facilities than are given by these general words, or obtain an amendment of the general law by private bill. ■ In the debate upon the Ocean Accident and Guarantee Corporation Bill, which sought to remove many of the difficulties with which this handbook deals, Sir E. Carson (Solicitor-General) said: "The House, for the first time, was asked to allow a company, for its own private gain, to exercise privileges which ought to be con- ferred, if at all, as part of the general law." The bill, which had passed the Lords, was rejected by 189 votes to 101. (Times, 8th Aug. 1905; Hansard, Pari. Debates, 4th ser. 151, 1905, cols. 453, 462—464.) CORPORATIONS AS EXECUTORS. CORPORATIONS AS EXECUTORS. " It was formerly a doubt whether corporations aggregate could be constituted executors, inasmuoh as they cannot take an oath for the due execution of the office." (Citing Wentworth, Off. Ex. 17 (d) , 1 Bla. Com. 477 (e) .) " But it now seems settled in the affirmative" (citing 1 Eolle's Abr. 915 (/) ; 3 Bacon's Abr. 425 (g) ; 11 Viner's Abr. 140 (h) ), " and that on their being so named they may appoint persons styled Syndics to receive administration with the will annexed, who are sworn lite other administrators." Thus wrote the learned editor of Swinburne in 1803 (»') ; and his view has been supported by later writers of repute : Wentworth (k) and Toller (I). (d) The edition of 1703. (e) The edition of 1770; also at p. 464 in the edition of 1765. (/) The edition of 1668, vol. i. Transl. by Danvers, ed. 1737, vol. iii. at p. 365. (ff) The edition of 1832, vol. iii. (A) The edition of 1753, vol. ii. (i) Treatise on "Wills, Henry Swinburne, Judge of the Prerogative Court of York, 7th ed. 1803, by Powell, vol. ii. at p. 659. It will be observed that the authorities cited by Powell as against the capacity are later than two of his authorities in favour of it. But Grant, in his Law of Corporations, ed. 1850, p. 202, would appear to express surprise that anyone should question the capacity, since KerwiVs Case, of 12 Edw. IY. See post, p. 6 (q). (k) Office and Duty of Executor, Wentworth, 14th ed. 1829, at p. 39. In the earlier edition of 1703, at p. 17, this writer is against the capacity of corporations, because: "They cannot be feoffees in trust to others' use ; secondly, they are a body framed for a special purpose ; thirdly, they cannot come to prove a will, or, at least, to take an oath as others do." {I) The Law of Executors, Toller, 7th ed. 1838, at p. 30, CORPORATE EXECUTORS AND TRUSTEES. Earlier writers had asserted the capacity of corporations to he appointed. Thus, Swinburne himself writes, in 1590 (m) : "Finally, the testator may appoint one person alone or manie ; manie I say, several or manie representing one bodie, as a colledge, a citie, an universitie." Similarly G-odolphin, in 1685 (n), though on a later page (o) he would appear to qualify his agreement with the Swinburne of 1590, where he says : " To the first mentioned " (i.e., persons incapable of being executors) " may be added cor- porations, which, although lawful ones, yet may not stand executors unless they can duly prove the will and take the executor's oath." And Eolle, in 1668 (p) : "A mayor and commonalty may be executors, 12 Edw. IV. 9b admitted" (q). No example is given of corporations capable of taking the executor's oath, and it may be assumed that it was the more general practice to grant administration with the will annexed to a syndic. However, whatever the history upon the point may be, this assumed general practice is now settled law (r). Darke, in the In 1859, Elizabeth Darke, late of Exeter, spinster, died, leaving a will and codicil, whereof she had appointed the an exact transcript of the passage in Swinburne, as given above. (m) A Brief e Treatise of Last Testaments and Willes, by Henrie Swinburne, B.C.L., ed. 1590, 5th part, § 1, p. 196. (n) The Orphan's Legacy, hy John Godolphin, LL.D., ed. 1685. 3rd ed..pt. ii. c. 1, at pp. 75, 76. (o) At p. 85. (p) Eolle's Abridgment, ed. 1668, vol. i. at p. 915 ; Danvers' transl., ed. 1737, vol. iii. at p. 365. (q) The reference here is to KerwiVs Case, Tear Book, 12 Edw. IV. fol. 9, pi. 24. See Les Reports des Oases en Ley du Eoy Edward le Quart, London, MDOLXXX. if) Wnis. Exors. ed. 1905, p. 158. goods of, 1859. CORPORATIONS AS EXECUTORS. Bishop of Exeter and the Dean and Chapter of Exeter exeoutors. She devised and bequeathed the bulk of her property for the purpose of building and endowing a church in Exeter. The bishop had renounced his right to probate, and the dean and chapter were anxious that the Court should grant letters of administration with the will annexed to E. Barnes, their chapter clerk. Dr. Tristram moved accordingly. No authorities were cited other than 1 Williams, Exeoutors, 5th ed., at p. 199, wherein, counsel said", "It was stated that it had been doubted whether corporations aggregate could be executors, on the ground that they could not take the oath for the due execution of the office ; but that it was now settled that on their being so named they may appoint persons styled syndics to receive administration with the will annexed, who are to be sworn like other administrators." Sir Cress- well Cresswell requested that the appointment of the syndic under seal should be before him, and, this having been provided, he granted the application (*). In Hunt's Case (t) the testator appointed the Trustees Stmt's Case. and Executors and Securities Insurance Corporation, Ltd., executors and trustees of his will. Upon his death, the company having by deed poll under their seal appointed their general manager to obtain ad- ministration with the will annexed, for their own " use and benefit," applied for the grant. The Court granted the application ; and, further, accepted the company them- selves as sole surety under the administration bond (u). ■ (*) Elizabeth Darke, in the goods of, 1 Sw. & Tr. 516; Heard, 1859. (t) Hunt, in the goods of, (1896) P. 288, Barnes, J. («) Even though, it is to be presumed, the directors did not render themselves personally liable. See Carpenter v. Queen's CORPOBATE EXECUTOES AND TRUSTEES. Common prac- tice to grant to a syndic. Executor's oath. Again, in the minutes of evidence taken before the Select Committee on Trusts Administration, 1895, in the evidence of Mr. H. E. Boyee, Manager of the Trustee Department of the Trustees and Executors Corporation, Answers 2340, 2438, 2439, 2440, it will he observed that in the years 1887 to 1895 this corporation proved eleven wills by means of administration with the will annexed granted to its syndic for the use and benefit of the corporation. So that the present law and practice, so far as the registry is concerned upon the matter, would appear to be well settled (%). Nevertheless, the question is still pressed by some to learn why a corporation aggregate cannot take the executor's oath, seeing that its secretary is constantly called upon to take an oath on its behalf on various com- mercial matters. The answer to this difficulty would appear to be that the corporation is appointed executor, and not its secretary ; that the oath is a personal and individual one, and as such could not be taken by such an abstract personality as a corporation merely affixing its common seal. It may be convenient to set out the oath as follows (y) : — "In the estate of A. B., deceased. "I, C. D., of , make oath, and say that I believe the paper writing hereto annexed and marked hy me Proctor, 7 P. D. 235. Heard, 1882. Hannen, P.: "A guarantee company may be accepted as surety to a bond given by an administrator pending suit, even though the directors do not by the bond render themselves personally liable." (x) See Martin, in the goods of, 90 L. T. 264 ; 20 T. L. E. 257. Heard, 1904. Mr. Priestley, K. O. : "Every week grants of administration were made to a syndic, who is appointed by a company." (jr) Tristram & Coote's Probate Practice, 13th ed. 1900 at p. 783, Form No. 73. CORPORATIONS AS EXECUTORS. ' to contain the true and original last will and testa- ment of the said A. B., of , formerly of , deceased, who died on the day of , 19 , at ; that I am the of the said deceased and the sole executor named in the said will ; that I will administer according to law all the estate which by law devolves to and vests in the personal representative of the said deceased ; that I will exhibit a true and perfect inventory of the said estate, and render a just and true account thereof whenever required by law so to do ; and that the gross value of the said estate amounts to £ and no more, to the best of my knowledge, information and belief." The oath of an attorney of an executor (such as a syndic to a corporation) runs as follows (2) : — " In the estate of A. B., deceased. Oath of "I, C. D., of , , make oath and say that meraoutor. the said A. B., of , deceased, died on the day of 1 19 , at , having made and duly executed his last will and testament, and thereof appointed E. P. sole executor, who now resides at " That I am the lawful attorney of the said E. P. " And I further make oath and say, that I believe the paper writing hereto annexed and marked by me to contain the true and original last will and testament of the said deceased; that I will administer according to law all the estate which by law devolves to and vests in the personal representative of the said deceased for the use and benefit of the said E. P., and until he shall duly apply for and obtain probate of the said will (a) ; that I will (z) Tristram & Coote's Probate Practice, 13th ed. 1900, at p. 821, PormNo. 153. (a) In the case of a syndic to a corporation this clause would be better omitted, or varied. It would be more expedient to say here, " until the said corporation shall apply for a new grant to another syndic," &c. : see remarks on revocation, 10 CORPORATE EXECUTORS AND TRUSTEES. Source of the power to appoint syndics. Meaning of tie term "syndic." exhibit a true and perfect inventory of the said estate, and render a just and true account thereof whenever required by law so to do ; and that the whole of the said estate amounts in value to the sum of pounds, and no more, to the best of my knowledge, information and belief." There would appear to be nothing in either of the foregoing oaths that could not be said equally well by a corporation, and said, for the most part, with more security of performance ; and now that the exclusively personal and individual conception of the office of executor is becoming so largely modified in the public mind in favour of corporations, Parliament should be asked, without delay, to provide for a corresponding modification in the law (b). It would seem that the grant of administration to the corporation's syndic, is made by the Court by virtue of its jurisdiction to make a grant of administration with the will annexed, in any case where the appointed executor is incapable of taking a grant of probate. The word "syndic" is merely a term for an agent or attorney, and its employment for the present purpose may be ascribed to a custom of the old Ecclesiastical Courts. The grant of administration may be made to the single nominee of the corporation. ,In Hunt's Case, cited above (c), the grant was made, on the nomination of p. 14, post ; and if the registry would consent, it would be expedient to insert these words in the grant. (6) Eegard being had to the settled practice of the Court in granting administration to a syndic "for the use and benefit " of a corporation, it is submitted here that the Court would not now admit any jurisdiction to alter the law, and would not consent to grant probate direct to a corporation without the authority of Parliament. (c) Hunt, in the goods of, (1896) P. 288. Vide supra, p. 7. CORPORATIONS AS EXECUTORS. H the oompany- executor, to its general manager. The Joint ad- appointment of joint administrators, though unusual, is Sowed? ° r allowed (d). Conditions of Grant of Administration to Corporation 's Nominee. The Court mil not make the grant until it has the appointment of the syndic hefore it (e). A sealed copy of the resolution of the board of the corporation appointing the syndic, or his appointment by deed under the corpora- tion's seal (/), is required to be filed with the papers when the grant is applied for (g). In Hunt's Case the Court accepted the company- executor as surety to the adminis- tration bond, in lieu of other sureties. The grant of administration to the corporation-executor's syndic is expressed to be made to him " for the use and benefit " of the corporation (A). And the Court will only grant administration to the agent on the same terms as it would have granted it to the principal himself («). Legal Position of the Syndic as Administrator. It seems to be settled that an attorney to whom admin- Syndic is ad- istration has been granted for the use and benefit of the his own right! executor named in the will is in all respects administrator (d) As to appointment of an administrator ■with, an executor, see Martin's Case, post, p. 22. (e) Darke, in the goods of, supra, p. 7. (/) Hunt, in the goods of, (1896) P. 288. Iff) Tristram & Coote's Probate Practice, ed. 1900, at p. 34. (A) Darke, in the goods of; Hunt, in the goods of; supra, p. 7. (t) Goldsborough, in the goods of, 1 Sw. & Tr. 295. Heard, 1859; Sir C. Cress-well. 12 CORPORATE EXECUTORS AND TRUSTEES. of the estate, as if the grant had been made to him in his own right. " "When a general grant of administration has been made, the administrator, whether entitled in his own right to the administration, or claiming only as the attorney of another, is fully competent to deal with the whole estate coming to his hands " (k). In Suicerkrop v. Day (I), where K., having been named executor in a will, M., his attorney, obtained letters of administration of the testator's effects with the will annexed for the benefit of K., who never took out probate ; the Court of Queen's Bench held that, by virtue of this grant, and during the life of K., or until he should take out probate, M. and not K. was the personal representa- Syndie liable tive of the testator. A person, such as the syndic, to oredUorsand whom letters of administration with the will annexed legatees. ha,\e been granted, as the attorney of the person entitled to the grant for the use and benefit of such person, is accordingly liable to account, as the personal representative of the testator, to creditors and persons beneficially inte- rested in the estate in the same way as if he had obtained letters of administration in his own right (#?•). Effect of "use The phrase "for the use and benefit of" the exeoutor, an ene . £ Q ^ e grant to the administrator, is not to be understood (A) Per Lord Cranworth, in Att.-Gen. v. Kbhler, 9 H. L. 0. 654, at p. 673. Heard, 1861. (I) 8 A. & E. 624. Heard, 1838 ; Lord Denman, 0. J. (m) Chambers v. Bicknell, 2 Hare's Eep. 536. Heard, 1843; Wigram, V.-O. Testator's widow resided in India. By power of attorney she appointed defendant her agent. Under this power he obtained administration in England with the will annexed for her "use and benefit." One of the children filed a hill for administration against him. See also Re Dewell, 4 Drewry, 269, 272. Heard, 1858; Kindersley, V.-C, wherein Chambers v. Bicknell approved. CORPORATIONS AS EXECUTORS. 13 as rendering him liable only to acoount to his principal, the executor, or as excluding the rights of others (n). So long as the grant to the executor's nominee subsists, The admini- the executor can do no acts of executorship ; for seot. 75 of eludes the the Court of Probate Act, 1857, provides that : " After ^ xec 1 ut ° r \ „ ' r Probate Act any grant of administration, no person shall have power of 1857. to sue or prosecute any suit, or otherwise act as executor of the deceased, as to the personal estate comprised in or affected by such grant of administration until such administration shall have been reoalled or revoked." This provision now extends, 'under sect. 2 (2) of the Land Transfer Act, 1897, to real estate, which passes under that LandTransfer Act to the personal representatives (o). As regards the right of an executor to have the grant Revocation of to his attorney revoked, it is settled that the power of syndic or attorney — which is the foundation of the grant — is attomeT - revocable, the attorney being only the agent of the executor ; and therefore, if the executor desires to prove the will, the Court is bound to revoke the grant of admin- istration and grant probate to the executor (p). And where the grant was to the attorney of the executor, who was abroad, for the latter's use and benefit during his absence, it was held to have ceased and determined without express revocation on the executor's application for probate, and the Court directed that future grants durante absentia should be further expressed to be (m) Anstruther v. Chalmer, 2 Simons' Rep. 1. Heard, 1825, 1826; Sir John Leach, Y.-O. ; Re Dewett, supra; Att.-Gen. v. Kbhler, 9 H. L. C, per Lord Cranworth, at pp. 680, 681 ; Lord Chelmsford, at pp. 687, 688. Heard, 1861. (o) As to the power of the syndic to execute a conveyance, see post, p. 63. (p) Pipon v. Wallis, Lee's Ecc. Eep. ; Phillimore, vol. i. p. 402. Heard, 1753, before Sir George Lee. 14 CORPORATE EXECUTORS AND TRUSTEES. Where a corporation revokes the authority given to its syndic, the Court 'would likewise revoke the grant of ad- ministration. Upon re- vocation of the grant to the syndic, or death, &c, administra- tion de bonis nan would follow to new syndic. Relation of testator, limited until the executor should apply for and obtain probate (q). But where the executor is a company, and is therefore incapable of taking a grant of probate, the question arises whether its revocation of the authority given by it to its nominee is per se a ground for the revocation by the Court of the grant to him, and for the appointment of an administrator de bonis non under a fresh authority given by the company. Such, however, would seem to be the effect of the revocation, by analogy to the case of revocation of the authority, and application for probate by an individual executor. It would seem reasonable that a corporate-executor should be entitled to have the original grant to its nominee expressed to be made until it should apply for a new grant to another nominee, by analogy to the form of grant directed in bonis Cassidy (r), in the case of an absent executor. It is submitted that, at any rate, the Court, in the exercise of its discretionary power of revoking a grant of administra- tion for sufficient cause, would revoke a grant to a syndic, if he, having been an official of the company at the time of the grant (as would usually be the case), should for any reason have ceased to be such official, or for any other sufficient cause shown by the company. In the event of the revocation of the grant of adminis- tration, or in the event of the syndic's insanity or death, administration de bonis non would, it is submitted, be granted by the Court to a new nominee of the company- executor. Some observations upon the relation of testators towards corporate-executors and their syndics are better deferred (g) Cassidy, in the goods of, 4 Haggard's Rep. Ecc. Courts, 360. Heard, 1832. (r) Supra, p. 9 (a). CORPORATIONS AS EXECUTORS. 15 until the consideration of the subject is further completed corporate - by the following article (s). and syndic. Liability of Company -Executor for Acts of its Syndic. A corporation would undoubtedly seem to be liable for Liability of loss to the estate through the devastavit of its syndic, to tion for acts whom administration of the estate for its use and benefit ° * B syn c " has been granted, in accordance with the general rule as to the liability of a principal for his agent's torts com- mitted within the scope of the agency. For although, as Syndic pri- has been seen, the syndic, as administrator, would be liable to the to account to creditors and beneficiaries in the same way beneficiaries, as an administrator in his own right (t), nevertheless, the authority given by the executor to the attorney or syndic is the foundation of the grant (u). The corporation, there- fore, would seem to be subject to the ordinary liabilities of a principal for the acts of his agent (a?). (s) See post, p. 17. (t) Supra, p. 12. (u) Pipon v. Wallis; and Cassidy, in the goods of; supra, p. 13 (p). (x) See also Palmer, Company Law, ed. 1905, p. 56 : " An ingenious perversion of the doctrine of ultra vires has some- times led to its being contended that, inasmuch as the funds of a company can be applied only to the promotion of its objects, they cannot be applied in making good damage caused by the fraud, or negligence, or misconduct of its agents and servants. This is a fallacy. There is nothing in the rule of ultra vires which in any way protects a company acting within its legitimate sphere from liability, to the extent of its assets, for the consequences of the acts of its agents done by them on behalf of the company and in the course of the company's business. This liability is derived from the ordinary law of principal and agent; and it makes no difference whether the agent's wrongful act or default takes the form of malice, negligence, 16 CORPORATE EXECUTORS AND TRUSTEES. It has been held that where an executor, who might have proved or renounced, instead of doing either had procured a grant of administration to another as his attorney, the latter must be considered to be the agent of the executor, who was therefore liable to make good to the estate losses thereto caused through the administrator's devastavit, so far, at least, as the administrator's assets were insufficient for that purpose (y). DoyU v. " Executors must either wholly renounce, or if they act to a certain extent as executors and take upon themselves that character, they can be discharged only by administer- ing the assets themselves, or by putting the administration into the hands of a Court of equity " (2). The fact that a nuisance, or fraud. . . . It is a principle, not of the law of torts, or of fraud or deceit, but of the law of agency ... as was well put by Mr. Justice Willes in Barwick's Case, L. E. 2 Ex. 259 (heard, 1867): 'With respect to the question whether a principal is answerable for the act of his agent in the course of his master's business, no sensible distinction can be drawn between the case of fraud and the case of any other wrong.' " See also^os^, p. 38. (y) Doyle v. Blake, 2 Sch. & Lef. 231. Heard, 1804 ; Lord Eedesdale, L. 0. Of. Harrison v. Graham, in Wins. Exors. ed. 1905, p. 1477 ; James v. Frearson, 1 Y. & C. 370. Heard, 1842; Bruce, V.-O. (z) Doyle v. Blake, supra. A., named executor in a will, acts on behalf of particular legatees, disclaiming an intention of interfering generally. He afterwards renounces formally in favour of B., who was named a trustee in the same will. B. possesses himself of the assets and dies insolvent. A. is liable as executor notwithstanding his renunciation, and is answerable for the acts of B., it appearing that he had con- trol over the assets, and B. being considered as having obtained possession thereof by his means. This is, perhaps, the only case close enough to the point; but it well supports the state- ment in the text. CORPORATIONS AS EXECUTORS. 17 company-executor, if it accepts the executorship, is under the necessity of committing the administration of the estate to its attorney, would not, it is suhmitted, protect it from the application of the foregoing rule, since its acceptance of the executorship is its voluntary act. Not but that a company undertaking the duties of executor- ship as a business would do otherwise than welcome such a rule, for so long as the law does not provide for a grant of probate direct, a great part of the security which a company offers to the publio depends upon such a principle. It will be appropriate to observe here that objection has Objections to been made in practice by some that a testator, unaware of Sanities the procedure attaching to executorship by corporations, of s y ndics - would expect to find that the powers which are vested by law in the syndic were vested in the corporation ; and that consequently, when its syndic dies, the corporation must apply for a grant of administration de bonis non; and when he retires, it must get the grant to the first syndio revoked, and another one made to a new syndic. Further, that regard being bad to the risks of incapacity from illness and otherwise, that upon occasion a risk of depre- ciation to the estate might be incurred. There is, how- ever, no substance in the objection. So far from any testator being misled as to the quality of his executor, he gets a double security: he gets the general manager or secretary of the company, whom any testator would be fortunate in securing as a private executor, and, as the preceding article has shown, he also gets, what he originally desired, the security of the corporation. For whatever the strictly legal position as to the primary liability of the syndic, it is manifest that this liability would be purely formal. As to the risk of illness and incapacity of the syndic, this is a risk to which the private exeoutor renounce. 18 COKPORATE EXECUTORS AND TRUSTEES. is equally liable, with this further disadvantage, that in the event of the incapacity of the private executor his business capacity also ceases, but no one ever heard of a company ceasing to transact business because of the in- capacity of its officers and servants. If, as has been suggested (a), the corporation obtains a grant of adminis- tration to its syndic " until it shall apply for a new grant to another nominee," any disability affecting its syndic could be surely and promptly remedied. Acts of the Company-Executor before grant of Administration. Executor The rule that the person appointed executor in a will, afterwards 110 wno h as elected to accept the office either expressly or by doing some executorial act, cannot afterwards renounce, and may be cited to take probate (5), would apply, it is submitted, to a company named executor in a will so as to oblige it, if it has acted in any way as executor, to procure a grant of administration to its syndic. When a company-executor has done such acts of administration as last referred to, it would seem that these acts would be within the company's powers as executor and valid, in accordance with the rule that an executor may do acts within his office without having proved the will, notwithstanding that, as before mentioned, under the (a) Ante, p. 9 (a). (6) Wins. Exors. ed. 1905, at pp. 198, 199, 201. "Any acts which show an intention to act as executor will amount to administration ; whatever actff will make a man liable as executor de son tort will be deemed an election," p. 200. See also Re Stevens, (189&) 1 Ch. 162, per Vaughan "Williams, L. J. : "No action would lie for neglect to take out probate, and the plaintiffs only remedy would be by citing the executor in the Probate Division," at pp. 177, 178 and head note. CORPORATIONS AS EXECUTORS. 19 grant subsequently made, the company's nominee and not the company itself is the personal representative of the deceased. The case seems to be analogous to that of the death of Acts of com- an executor after having acted but without having proved EftJ^St" the will, and a subsequent grant of letters of administra- traW^" tion with the will annexed to another person, in which case the executor's lawful acts before his death remain valid (a). As to the rule that an Executor of an Executor represents the first Testator. Where a company is executor of an executor who has Does cor- proved his testator's will, the question arises whether the outorXan general rule as to the devolution of the first executorship ^ ^nt will apply, so that the company's syndic, to whom the the first grant of administration has been made, will be the repre- sentative also of the first testator, or whether the case is within the rule that the administrator of an executor does not represent the original testator. There is authority to Where an ad- say that the administrator durante minoritate of the JHJ^^ 18 executor of an executor is representative of the first ™'<" ,is o f , an _ x executor he testator, because such an administrator is in loco executoris, represents and this, it is submitted, would be equally a ground for testator. holding that an executor's attorney or syndic, to whom (c) Johnson v. Warwick, 17 C. B. 516. Heard, .1856 ; Jervis, C. J., Cresswell, Crowder and Williams, JJ. "It is competent to an executor to assent to a bequest though he never prove the will, provided letters of administration with the will annexed be afterwards taken out " (head note). See also Brazier v. Hudson, 8 Sim. Rep. 67. Heard, 1836 ; Lord Holt, V.-C. " If an executor does an act and dies without proving the will, the act will he valid if the will is ultimately proved "(head note). See also Wms. Exors. ed. 1905, p. 221. c2 20 CORPORATE EXECUTORS AND TRUSTEES. administration with the will annexed is granted, is the representative of the first testator. The case may, perhaps, be given in full as reported : — " B. devises a legacy to C, and makes D. his executor and dies. D. makes B., an infant, his executor and dies, and administration is committed to F. durante minore estate of E. C, the legatee, sues F. for his legacy, and F. moves for a prohibition; but the Court denied it, for although an administrator of an executor is not an -administrator to the first testator, yet an administrator durante minore wtate is loco executoris, and may be sued, as the executor of an executor may" (d). Administra- It has been held that a grant of administration to the attorney of an attorney of the first executor does not break the chain of n^taakfte representation. As Sir H. Jenner Fust said :— " There chain of re- have been cases, I understand, similar to the present, in which a grant to an attorney of an executor has not by the executor's death, when he has appointed executors, been deemed to break the chain of representation. My Bayard's Case, impression is that a will proved by an attorney of an executor is the same thing as if actually proved by himself" (e). (d) Anon., 1 Ereem. Eep. p. 287. Heard, 1675. Ed. by Ed. Smirke. Wms. Exors. ed. 1905, p. 181, note (e), referring to this case, says : " See Smirke's valuable note." That note is as follows : "Contra Limmer v. Every, Cro. Eliz. 211, as cited by Lord C. B. Gilbert in Bac. Abr. Executors (B), 1 (vol. ii. p. 381, 5th ed.), but that case hardly supports him ; and in Leonard's report of the same case under the name of Limmer v. Evorie, 4 Leon. 58, it is said only that such an administrator should sue as administrator of the first testator. S. C, cited Godolphin's Orph. Legacy, p. 89, and see Norton v. Molineux, Hob. 246." (e) Bayard, in the goods of, 1 Eob. Eep. 768. Heard, 1849. Murguia, in the goods of, 9 P. D. 236. Heard, 1884 ; Butt, J. CORPORATIONS AS EXECUTORS. 21 Right of Retainer by Corporate Executor. Another question that merits consideration is whether Right of the syndic, with administration for the "use and benefit" gyndToT cor- of the corporation, can exercise the right of retainer on P orate exe - ° outor a cre- the company-executor's hehalf where the latter is a ditororsyndio creditor of the testator. It has been held that an adminis- trator durante minoritate of an executor, or during an exeoutor's lunacy, may retain for a debt due to the executor for whom he # aots (/). Likewise he may retain for his own debt(g'). And there does not appear to be aDy ground for assuming that a different rule would apply to the case where a company-executor, being a creditor of its testator, procures a grant of administration with the will annexed to its syndic for its use and benefit (h). (J) Franks v. Cooper, 4 Ves. 763. Heard, 1799. Lord Loughborough, L. C. : "A right of retainer is not prejudiced by the circumstance that the administration is granted to another for the use of the creditor — any more than if durante minoritate." (ff) Roskelly v. Godolphin, Sir T. Eaymond's Eep. 483, ed. of 1696, citing Prince's Case, 5 Co. 29; and BryarsY. Goddard, Hob. 250. Also Comyn's Dig. vol. i. ed. 1822, Administra- tion (F.), p. 470; Wms. Exors. ed. 1905, p. 793. (A) Where, however, the corporation, being a creditor, applies for, or is compelled to take through its syndic, administration as a creditor, then, although the right of retainer is, by law, unimpaired, nevertheless, since 1st Jan. 1900, the practice is such that under the form of bond now in use (W. N. (1899) 262), the right of retainer is expressly excluded. Wms. Exors. ed. 1905, pp. 351, 788; Walker & Elgood, ed. 1905, pp. 54, 206 (d), (e) ; Tristram & Coote, ed. 1900, p. 768, Form 47. 22 CORPOEATE EXECUTORS AND TRUSTEES. Effects of appointment of Co-Executors, one being a Company. No grant of In Martin's Case (i), -where a company and two indi- bTmadVt^a viduals had been named as executors and trustees in a will, body cor- t f administration with the will annexed to a porateaMaan o _ . individual. nominee of the company and of probate to the individual Martm's Cme. executorSj as joint representatives, was refused. Jeune, P., said : — " If I accede to the application, it is inevitable that the effect will be that sooner or later the society will become sole executor. ... A man may not wish a society to distribute his estate. Some societies may not be financially sound." Mr. Priestley, K.C., for the society :—" The disad- vantage in the present case, unless the learned President saw fit to alter the practice, was that the two individual executors would have to transfer to themselves and to the society the net estate after the payment of debts, which expense would be avoided if the grant of probate could be directly made to all three executors." The President said: — "The argument had been ad- dressed to willing ears, for in his opinion Courts had over and over again lost opportunities of extending the prac- tice. . . . But such a grant had never been made before, and he was not prepared to say that this was only a matter of practice ; on the contrary, he thought it was one with which the Legislature should deal." If there is an The report does not show whether any attention was executor com- gi ven t the rule that administration will not be granted willing to act where there is an executor competent and willing to take administrator, probate (k) ; for this would seem to be the real ground of (») Times Law Eeports. Heard, 16th Feb. 1904. Vol. xx. at p. 257. 90 L. T. 264. Heard, 1904 ; Jeune, P. {k) Coswall v. Morgan, 2 Cas. temp. Lee, p. 571. Heard, CORPORATIONS AS EXECUTORS. 23 the decision. However, whilst giving to this decision due Martin's Case, weight, it is suggested here that it is still possible for a o^rcome. body corporate and an individual to act' as executors, so as to entitle the company to an agreed remuneration for its services, even although no such joint grant of probate is at present procurable. For probate granted to one only of Eights of several executors is sufficient evidence of the title of all, ^^ t BV!ho for the grant of probate to one enures for the benefit of all P 10 ^- who have not actually renounced (I). And if those who have not proved accept the office, they fully represent the testator without further probate, " for an executor derives his title not from the probate but from the will" (m). Further, they may join with the executor who has proved in all acts which executors must join in doing, as in bringing or defending an action («) ; or in selling and conveying real estate under the Land Transfer Act, 1897 1728, before tie Delegates at Serjeants' Inn. Wms. Exors. ed. 1893, vol. i. pt. 1, bk. v. p. 444: "No administration of any sort can be granted when there is an executor appointed." (1) Wms. Exors. ed. 1905, p. 295, also 171, 715, 1434, note (k) ; ed. 1893, at pp. 320 and 1794: "The title of several plaintiffs, claiming as executors, is well evidenced by probate granted to one only of the will appointing them all." Walters v. Pfeil, 1 Mood. & Malk. 362. Heard, 1829; Lord Tenterden, 0. J. Watkins v. Brent, 7 Sim. 512. Heard, 1835; Sir Lancelot Shadwell, V.-C. Wentworth, Off. of Exor. ed. 1829, p. 95 (a), citing Hensloe's Case, 9 Coke, Eep. 34—40. (m) Bayley, J., in Webster v. Spencer, 3 Barn. & Aid. 360. Heard, 1820. {n) Brookes v. Stroud, 1 Salk. Eep. ed. 1795, p. 2 (3). Heard, 1 Anne ; B. E. Ear. 39. S. C, Webster v. Spencer, supra; Watkins v. Brent, supra. Wms. Exors. ed. 1893, pp. 1831—1878; ed. 1905, p. 1531. 24 CORPORATE EXECUTORS AND TRUSTEES. Appointment of a corpora- tion imd individuals possible. (sect. 1, sect. 2 (2), sect. 24 (2) ) (o) ; and perhaps, since the Land Transfer Act, 1897, in assenting to a devise of realty (sects. 2 (2) and 3 (1)). Further, in the event of the death of the executor who has proved, no further probate by his co-executor, who has accepted the office but has not proved, is necessary (j>). There does not seem to be any reason to doubt the applicability of the foregoing rules where a company and another or others are appointed co-executors in a will, notwithstanding the inability of the company to obtain for its nominee a grant of administration with the will annexed, conjointly with the probate to the individual executors, or a common grant of probate directly made to all of them (g). If one of several executors who has not proved the will joins in acts of executorship with the other or others by whom the will has been proved, he will be liable for his own acts and the consequences thereof, as having accepted the office of executor (r) ; being in this respect in the same (o) Pawley v. London and Provincial Bank, (1900) 1 Ch. 58, Kekewieh, J. (p) Cummins v. Cummins, 3 Jo. & Lat. 64. Heard, 1845. Sugden, L. 0. : " Probate to one of several executors, the right of the others being reserved, enures to the benefit of all; and upon the death of the executor to whom probate has been granted, the other executor may accept the office, and upon doing so, fully represents his testator without further probate" (head note) ; and see Watkins v. Brent, supra. (§■) " Where there are several executors, upon the grant of probate to one of them it is usual to reserve power of making a like grant to the others. But this appears to be unnecessary, both because the probate already granted enures to their benefit, and because they have a right to the grant whether the power be reserved or not": Wins. Exors. ed. 1905, p. 295. (r) Wms. Exors. ed. 1893, vol. ii. p. 1691, note (i), pt. iv. CORPORATIONS AS EXECUTORS. 25 position as a sole executor who has acted before proving. Presumably a company-executor which has not obtained a grant of administration to its syndic would incur a similar liability, through acting in the executorship together with a co-executor who has proved the will (s). This conclusion would suggest that the individual executor to be associated with the corporation might be the secretary or other officer of the company (f). The bk. 2, c. 2, par. 11, and cases there cited; ed. of 1905, pp. 1467, 1468, 1478 ; Orr v. Newton, 2 Cox, Eq. Oases, 274. Heard, 1791, at p. 275 ; Lord Camden. (s) Because the corporation -would have the intention to act as executors and would, doubtless, describe themselves as executors, as in. Harrison v. Graham, supra, p. 16 (y). "Where it is said that "an executor who does not prove, but acts, is answerable only for what he receives " (Lowry v. Fulton, 9 Sim. 104. Heard, 1838 ; Sir Lancelot Shadwell, V.-C. Rogers v. Frank, 1 T. & J. 409. Heard, 1827 ; Alexander, L. C. B., Garrow, Hullock, Vaughan, BB. Orr v. Newton, 2 Cox, Eq. Cas. 274. Heard, 1791 ; Lord Camden. Dove v. Everarcl, 1 Euss. & M. 231. Heard, 1830; Sir John Leach, M. E. Cooke' v. Stevens, (1898) 1 Ch. 162, Vaughan Williams, L. J., at p. 178), what is meant is that, although such an executor, being a named executor, is not an executor de son tort, never- theless his liability seems to be limited in the same way, subject everywhere, it is submitted, to the condition that he has not, by his conduct, made himself answerable for the acts of his co-executor (see post, p. 27 (y)). (t) The appointment of the secretary or general manager, "for the time being," would seem to be a valid appointment, and would have the advantage of ensuring that there should be an individual co-executor acting with the corporation who would survive the testator. A named secretary, if he pre- deceased the testator, would leave the corporation to act as formerly, viz., through a syndic. Such an appointment — as first named — would not appear to be void for uncertainty, as " any two of my sons" (In the goods of Baylis, 2 Sw. & Tr. 26 CORPORATE EXECUTORS AND TRUSTEES. official would procure a grant of probate to himself per- sonally, and not as syndic, and the grant would enure equally for the benefit of the corporation. The testator would lose the security of the liability of a principal for the acts of his agent, but in its place he would have as sound a security in the liability of the corporation as an executor for the acts of a oo-executor to whom it has dele- gated the work of the office (m). "There is no instance of an executor, answerable only pro tanto, as having administered only partially" (*), whilst there is ample 613. Heard, 1862 ; Sir 0. Cresswell, citing Strode v. Russel, 2 Yem. 620. Heard, 1701 ; Tracy, J.) ; or as " one of my sisters " (In the goods of Blackwell, 2 P. D. 72. Heard, 1877 ; Sir J. Hannen, P.). " The Archbishop of Tuam for the time being" was held to be a valid appointment, although, the jurisdiction being abolished, probate was granted to the Bishop of Tuam as expressing the intention of the testator (In the goods of Haynes, 3 Curt. 75. Heard, 1842; Sir H. Jenner Fust). Probate has also been granted to the partners of " 0. & Co." where the firm had been named as executors (In the goods of Fernie, 6 Not. of Cas. Heard, 1849; Sir H. Jenner Pust). (u) Lees v. Sanderson, 4 Sim. 28. Heard, 1830; Sir Lancelot Shadwell. Oliver v. Court, 8 Pr. 127. Heard, 1820 ; Eichards, L. C. B. : "If one of the trustees only acts, the others dele- gating the whole duty to him are involved in and responsible for his conduct in the execution of it." Lowe v. Shields, (1902) 1 Ir. E. 320, PitzGibbon, Walker and Holmes, L. JJ. Heard, June, 1901 : — To place sums of money in the sole con- trol of his co-executor was not what an ordinary prudent man would have done with his own money, and the co-executors were jointly and severally liable. Horton v. Brocklehurst (No. 2), 29 Beav. 504. Heard, 1858; Sir John Eomilly, M.E. : " A man cannot take upon himself the character of trustee and act partially as such." (x) Kilbee v. Sneyd, 2 Moll. 186, 201. Heard, 1828 ; Hart, L. C. CORPORATIONS AS EXECUTORS. 27 authority to fix the corporation with liability in such a. case (y). Where a company is appointed exeoutor for a particular Company part of the estate, and another executor is appointed for e ^^ T as the rest of the estate, there would seem to he no legal executor, objection to a grant of administration with the will annexed to the syndic of the company limited to that part of the estate of which it is named executor, and a grant of probate to the other executor as to the rest ; for if a testator appoints an executor of his will generally, and another executor for particular purposes, the executors may apply singly for separate grants, and the grant will be special in each case (s). Appointment of Company as Executor for Distribution as on an Intestacy. The rules of law as to the persons who may be adminis- Corporations trators of the estate of an intestate preclude the grant of cases^f 11 administration in that case to the nominee of a company, mtestacy - except, perhaps, where the company claims the grant as a creditor of the intestate, in default of any other person entitled to the grant (a) . But a document executed as a (y) Wms. Exors. ed. 1893, pp. 1727, 1728; ed. 1905, p. 1468 : "Where an executor, possessing assets of his tes- tator, hands over those assets to a co-executor, and they are misapplied hy that co-executor, there the executor who so hands them over will be answerable for their misapplication, unless he can show a good reason for having so acted. Where, by any act done by one executor, any part of the representa- tive estate comes to the hands of his co-executor, the former will be answerable for the latter." Walker & Elgood, ed. 1905, pp. 16, 279, 280. (a) Tristram & Coote, Probate Practice, ed. 1900, at pp. 160, 161, sect. vii. (o) Wms. Exors. ed. 1905, pp. 349, 350. Fairweather, in 28 COEPOEATE EXECUTOES AND TEUSTEES. will that merely appoints an executor, without expressly disposing of any part of the property, will he admitted to probate as being the will of the deceased (b), and the estate will vest in the executor accordingly. The residue, after payment of the debts, will be distributable by the executor according to the rules of intestate succession, though it so passes by virtue of the will(c). By the application of the foregoing principles, it is suggested here that a company may thus be appointed executor for the winding-up of the testator's estate as if he had died intestate. Appointment of Company as Trustee as well as Executor of a Will. Where a testator appoints a company both executor and trustee of his will, and letters of administration with the will annexed are granted to the syndic of the company for the goods of, 2 Sw. & Tr. 588. Heard, 1862 ; Sir 0. Cresswell. If the secretary or syndic had no authority by the constitution of the company to sue for the debts of the company, then it would seem that he could not claim the grant as a creditor of the estate, but would have to apply for administration under sect. 73 of the Probate Act, 1857, as being a person such as the Court in its discretion, under the terms of that section, may think fit to appoint. (5) Wms. Exors. ed. 1893, p. 182; ed. 1905, p. 157; Brown- rigg v. Pike, 7 P. D. 61, 64. Heard, 1882; Sir James Hannen, P. Lancaster, in the goods of, 1 Sw. & Tr. 464. Heard, 1859 ; Sir 0. Cresswell. (c) Brenchley v. Lynn, 2 Eob. Eep. 468, 469. Heard, 1852; Dr. Lushington. The testator declares by his will that he dies intestate, and that his property shall go as in case of an intestacy. Such paper does not constitute an intestacy, but a bequest of the property to persona designate — designated by the statute. CORPORATIONS AS EXECUTORS. 29 its use and benefit, it seems clear that the syndic, though he becomes by virtue of the grant the personal representa- tive of the testator (d), is not also trustee of the will ; and that he holds the surplus assets remaining after the dis- charge of his duties as personal representative as a con- structive trustee thereof merely, and must account for and transfer them to the trustee appointed by the will, i.e., the company (e). It is, however, suggested here that, regard being had to the rule that acceptance of the probate of the will is an acceptance of the trusts thereunder (/), then, inasmuch as at present a company can only act through its syndic or attorney, the grant of administration to the syndic is an acceptance of the trusteeship by the company. (d) Vide supra, p. 11. (e) Lewin on Trusts, ed. 1905, p. 223. For a humorous definition of this " rare law change," from an executor to a trustee, see Birrell, Trusts, ed. 1897, p. 13. {/) Vide post, p. 52. MucMow v. Fuller, Jac. Eep. 198. Heard, 1821 ; Lord Eldon, C. Wms. Exors. ed. 1905, vol. ii. at p. 1434 ; ed. 1893, at p. 1691 ; whether the estate be real or personal; Walker & Elgood, ed. 1905, p. 17; Underbill, Trusts, 1904, p. 148. " In general, the office of executor is separable from that of trustee, so that one may be accepted without the other ; but the two offices may be so inseparably connected by the will that the renunciation of probate would amount to the disclaimer of the trusteeship." (Citing Re Gordon, 6 Ch. 531. Heard, 1877. Jessel, M. E., at p. 534) : "And conversely, that the probate of the will would be the acceptance of the trusteeship." (Citing Mucklow v. Fuller, supra.) Key & Elph. ed. 1902, vol. i. p. 635 (3). "The renunciation of probate ... is not in itself a disclaimer of the trust, but it is one circumstance of evidence." Lewin, ed. 1905, p. 220. 30 COEPOEATE EXECUTOES AND TEUSTEES. Application of the Judicial Trustees Act, 1896, to Executorship. The question whether this Act enables the Court to appoint a company as judicial trustee is considered here- after (g) . It may be observed here that the Act provides (sect. 1 (2) ) that the administration of the property of a deceased person, whether a testator or intestate, shall be a trust, and the executor or administrator a trustee, within the meaning of the Act. (g) Vide post, p. 32. 31 Part II. CORPORATIONS AS TRUSTEES. Appointment of Company as original Trustee. A corporation may hold, as trustee, any property that it can hold for its own benefit. An appointment by a settlor or testator of a company as trustee is therefore valid (a). The Bodies Corporate Joint Tenancy Act, 1899 (b), has enabled a corporation to hold property in joint tenancy ■with another or others (which previously it could not do), and has thus rendered practicable the appointment of a corporation as one of two or more co-trustees. Appointment of Company as new Trustee to fill a Vacancy in the Office. In Re Thompson's Settlement (c), it was held that such an appointment might be made by the person authorised (a) Levin, ed. 1905, p. 30; Thompson's Settlement, in re, W. N. (1904) p. 205; (1905) 1 Ch. 229; 74 L. J. Ch. 133. Heard, Nov. 1904. Swinfen Eady, J. : "A limited company may be a trustee and may hold trust property in joint tenancy with a natural person as co-trustee." "There is no objection to an assignment or bequest of pure personal estate to a cor- poration upon trust." Lewin, ed. 1905, p. 31. (5) 62 & 63 Vict. c. 20. (c) Supra. " Where a settlement contains a power for the appointment of ' a new trustee,' the donee of the power is entitled to appoint a limited company as such trustee Jointly with a continuing trustee, in the absence of indications in the settlement of a contrary intention." (Head-note, 74 L. J. Ch. 133.) 32 CORPORATE EXECUTORS AND TRUSTEES. by the trust instrument to appoint new trustees, under an express power for that purpose contained in the trust instrument. The power authorised the appointment of " a new trustee or new trustees," and directed that upon such appointment the trust property should be Tested in " the trustees or trustee for the time being." The question whether a company is " a person " within the terms of a power to appoint new trustees (which is noticed here- after) (d), therefore, did not arise in that case. In the power of appointing new trustees, which, by the Trustee Act, 1893, s. 10, is made incident to trusts generally, the enabling words are "may by writing appoint another person or other persons to be a trustee or trustees," &c. And the Judicial Trustees Act, 1896, s. 1 (1), enables the Court to appoint " a person " to be a judicial trustee under that Act, and it also provides (sect. 1 (3)) that " any fit and proper person " nominated for the purpose may be a judicial trustee. The Interpretation Act, 1889, provides (sect. 19) that the expression "person" in every Act passed after the 1st January, 1890, shall, unless the contrary intention appears, include any body of persons, incorporate or unin- corporate. This provision brings the appointment of a company as an ordinary trustee or a judicial trustee within the scope of the above enactments. Corporation The Settled Land Act, 1882, s. 38, enables the Court, Steefor the m the events there mentioned, to appoint " fit persons " to the Settled 1 ^ e trustees of the settlement for the purposes of the Act (e). Land Acts. (d) Vide post, p. 33. (e) Who must not be fewer than two, unless a contrary inten- tion is expressed in the settlement. This precludes a corpo- ration from acting alone in most cases of existing settlements ; CORPORATIONS AS TRUSTEES. 33 And in the Aot " person " includes a corporation (sect. 8). Where the trust instrument contains an express power Company may , . . .... .. .. he appointed to appoint new trustees, which m terms authorises without a trustee qualification the appointment of " a person " or " persons " instrument to the office, it is not clear that a oompany can he appointed authorising a new trustee in exercise of the power. There does not mentof "a appear to be any reported decision on the point. Any doubt persons." in such a case might perhaps be overcome if the donee Ex P* e f> s . , provision to of the power of appointment was "unwilling to act" (/). this effect For if the power of appointment in that case passed to As to meaning the " surviving or continuing trustees or trustee," under to b , e given , to the word but there would appear to be no reason why, in such cases, the corporation should not act jointly with an individual (Thompson's Settlement, supra). Possibly the secretary of the corporation might he the second trustee ; for, although such an appointment would not he made by the Court, such an appointment made bond fide out of Court will not necessarily be invalid. Re Norris, 27 C. D. 333. Heard, 1884; Pear- son, J.; Re Earl of Stamford, (1896) 1 Ch. 288, Stirling, J. Cf. Re Kemp's Settled Estates, 24 Ch. D. 485. Heard, 1883 ; Brett, M. E., Cotton and Bowen, L. JJ. ; Lewin, ed. 1905, p. 42. The appointment of trustees under the Settled Land Act, 1882, is required as a check upon the extensive powers conferred upon the tenant for life (Cotton, L. J., in Re Kemp's Settled Estates, supra, at p. 487); so that, given a trustee independent of the tenant for life, the fact that the second trustee might not be deemed independent of the first trustee would not seem to be very material, the security of the corporation-trustee heing otherwise satisfactory. Of course, in a new settlement the settlor is at liberty to express a "contrary intention," and provide that a corporation shall be the sole trustee for the purposes of the Acts. (/) Re Sheppard's Settlement Trusts, W. N. (1888) 234, Stirling, J. A. D 34 COEPOEATE EXECUTOES AND TEUSTEES. "person" sect. 10 of the Trustee Act, 1893 (g), a corporation could, ment. 1118 "*" it is submitted, be appointed by them or him upon the interpretation given to the word " person " in any statute by the Interpretation Act, 1889, as including a corpora- tion. It may be noticed, moreover, that in Be Jeffcock's Trusts (h), Ohitty, J., decided that a testamentary power to lease to any " person or persons " authorised a lease to a corporation, on the ground that where the object of the instrument appeared to require that the word "person" should include " corporation," it should be so construed. It would, however, be most desirable that the Court should be asked to sanction the appointment in the case here discussed. To make such an appointment under the express power, and vest the property in the corporate- trustee without the aid of the Court, would be to involve the title of the property in needless difficulty, as well as to east a liability on the appointors in the event of the appointment being held to be a nullity upon some later inquiry (i). (g) It would seem that sect. 10 of the Act of 1893 is not alternative to the express power, but is available only where the express power is defective. "I think that the intention clearly was to enlarge the powers of testators and settlors . . . in such a way as not to oust or destroy the special provisions of the particular instrument, hut to be a substitute for such provisions if none existed, or an extension of them if they did not actually fit the events which had happened " : Kekewich, J., in.Se Wheeler and De Rochow, (1896) 1 Ch. at p. 320 ; Cecil v. Langdon, 28 Oh. D. 1. Heard, 1884, C. A. Moreover, sect. 10 is only to "have effect subject to the terms of the instrument" (sect. 10, sub-sect. 5). These words "subject to" imply inferiority to, and not equality with, the express power. Vide, Dictionary definitions. The powers of the Court under the Judicial Trustees Act are not subject to the express power. (A) 51 L. J. Ch. 507. Heard, 1882 ; Chitty, J. (i) Easton, Appointment of New Trustees, ed. 1900, pp. 40, 41. CORPORATIONS AS TRUSTEES. 35 Before leaving the consideration of the appointment of Corporation new trustees under express powers, it may be pointed out untotwi that in the opinion of some writers, under a settlement dinar y ex P resa ... power, containing an express power worded in the ordinary way, a reduction in the number of trustees upon appointment to one only would not be invalid (k). Other writers (I), however, are of opinion that the pro- vision " that a retiring trustee shall not be discharged by the appointment of a new trustee out of Court, unless on his retirement there will be at least two trustees to perform the trust" (unless only one was originally appointed), in sect. 10 (c) of the Trustee Act, 1893, would seem to modify the decision of Fry, J., in the case now noticed. Here, again, in view of the difference of opinion, it would be improper to appoint, under the express power, a corporation as the one trustee without the sanction of the Court. By the Trustee Act, 1893, sect. 25, which deals with the appointment by the Court of new trustees, the Court is enabled to " make an order for the appointment of a new (A) Key & Elph. Prec. ed. 1902, vol. i. p. 107, citing of England Bank v. Mureh, 23 Ch. D. 138. Heard, 1883. In that case Fry, J., said : "The appointment of a single trustee was not invalid. I do not say that such an appointment was one which ought to have been sanctioned by the Court or to have been made. If two trustees had been appointed under the power, and the widow had been one of them, she, if she had been the survivor of the two, could have executed the trust for sale, and it seems absurd that she should not be able to do so when she alone is appointed " : at p. 146. See also, Lewin, ed. 1904, p. 803 ; Easton, Appointment of New Trustees, ed. 1900, p. 42; and cf. Jessel, M. E., in Cunning- ham's Contract to Wilson, W. N. (1877) 258. (I) Underhill, ed. 1904, p. 316 (i); Eudall & Greig, ed. 1904, p. 68, citing sect. 11 of the Act of 1893. d2 36 CORPORATE EXECUTORS AND TRUSTEES. trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee " (m). There being nothing in the terms of this provision to fetter the discretion of the Court in the selection of a new trustee, it would seem that the Court has power to appoint a company. In Re Brogden («), North, J., said : " The Court probably has no power to appoint a corporation to be trustee." But this was obiter dictum (o), as the question in the case was as to the propriety of appointing officials of a corporation, not (m) It will he remembered that the parties to a trust in appointing new trustees proceed under the express power, if any, in the instrument, which, of course, may be worded at the will of the parties ; or, where the express power does not actually fit the events which have happened, they proceed under sect. 10 of the Trustee Act, 1893, which provides for the appointment by the parties without the intervention of the Court of " a person or persons." The word "person" in a statute is allowed by the Interpretation Act, 1889, to include a corporation. The Court, on the other hand, appoints, where both the express power and sect. 10 are deficient, under sect. 25 of the Act of 1893. That section authorises the appointment of " a new trustee or new trustees." What this word "trustee" in a statute would be held to include is discussed in the text above. (n) W. N. (1888) p. 238, North, J. (o) In Re Thompson's Settlement, (1905) 1 Ch. 229; 74 L. J. Ch. 1 34, counsel for the summons, George Lawrence, said : " It is true that in Brogden, in re, Billing v. Brogden, (1888), North, J., expressed an opinion that he had no power to appoint a limited company as trustee. That dictum, however, ought not to be heeded now that the law has been altered " (referring to the National Debt Act of 1892, and the Bodies Corporate (Joint Tenancy) Act, 1899), and Swinfen Eady, J., took this view. The power of appointment in the settlement in this case gave leave to appoint "a new trustee or new trustees in the place of the trustee or trustees so dying." CORPORATIONS AS TRUSTEES. 37 the corporation itself. If, as the reoent case of Re Thomp- "Trustee" son's Settlement (p) shows, a corporation may he appointed Trustee Act, ' " trustee " under a power contained in the trust instru- j^ioiai ment, the Court, it is submitted, must have an equally Trustees Act, ' ^ J 1896, permits extensive power under sect. 25 of the Trustee Act, 1893, of theap- or, it may he added, under sect. 1 (1) and (3) of the a^p^ration. Judicial Trustees Act, 1896, regard being had to the enabling words above quoted of those provisions. It may he^ however, that the discretion which the Court may exercise as to appointing a particular person who is proposed as a new trustee, where his fitness for the office may be questioned on grounds apart from those of social position, pecuniary means, or the like (q), extends to the refusal to appoint a company on the ground of its unfit- ness for the office by reason of its immunity from certain liabilities for breaches of trust to which an individual trustee is subject. These are (1) that the winding-up of a company releases it, in its corporate capacity, from all (p) Supra, p. 31. (?) Re Tempest, L. E. 1 Ch. 487. Heard, 1866; Sir Geo. Turner, Sir J. L. Knight-Bruce, L. JJ. Sir Geo. Turner, L. J., laid down three rules as guiding the Court in the appointment of new trustees : — 1. Regard will be had to the -wishes of the settlor, if Rules guiding expressed in the trust instrument, or clearly to be collected ^ ap ^ n ™ from it ; if an intention be declared in terms against a ment of particular person, the Court -would not appoint him. rustees. 2. The Court will not appoint a person trustee with a view to the interests of some only of the beneficiaries, in opposition to the wishes of the settlor or testator, or to the interests of other beneficiaries. 3. The Court must consider the question whether the appointment will promote or impede the execution of the trust, for the very purpose of the appointment is that the trust may be better carried into execution. 38 CORPORATE EXECUTORS AND TRUSTEES. liabilities for breach of trust, whereas, under the Bank- ruptcy Act, an individual trustee remains liable for a debt incurred by fraudulent breach of trust, notwithstanding that he has obtained his discharge in the bankruptcy; (2) that the liability to criminal proceedings for fraudulent misappropriation of trust funds cannot apply to a company- trustee (;•) ; (3) that the liability of each individual trustee to imprisonment, under the Debtors Act, 1869, for non- payment of trust moneys which he has been ordered by the Court to pay is equally escaped by a company-trustee. The possibility that the existence of the foregoing immunities might be regarded by the Court as a reason for declining to appoint a company as trustee, renders it expedient that the trust instrument should expressly authorise the appointment of a company to fill any future vacanoy in the trusteeship, where that is directed by the settlor or testator, although he may not in the first instance have appointed such a trustee. " The Court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected from it " (s). (r) This statement may be made as technically accurate ; but it is submitted that, inasmuch as a company can only commit a fraudulent breach of trust through its agents, those agents would he as liable to criminal proceedings as any other trustee, even where such fraud was effected by resolution of the board of directors. See also ante, p. 15 (a), Liability of Company for acts of its agents, and post, p. 42. Cf. also Grant on Corporations, ed. 1850, p. 56 (11): " A corporation aggregate not being capable of taking an oath, it is usual to join the clerk, or some of the officers of the corporation, who answers on oath, and is liable for perjury if he forswears himself." Cf. also Brice on Ultra Vires, ed. 1893, pp. 441, 442, 670. (*) Re Tempest, supra, p. 37 (y). CORPORATIONS AS TRUSTEES. 39 But even where the trust instrument does not contain suoh a direction, and assuming that, in the absence of such direction, the Court would not appoint a company to the office, it does not follow that the appointment of a company in exercise of the statutory power, or of a power contained in the trust instrument, could be impeached (t). It is submitted that where a company is a trustee, an Company and appointment of one of the officials of the company as its officials^ co-trustee, in exercise of a power to appoint new trustees, po-trustees . . . x x improper in would be improper, and might be a ground for the removal certain oases. of one or other of these trustees by the Court at the instance of a cestui que trust, especially if there were no third trustee unconnected with the company (w). Under a trusteeship so constituted, the cestui que trust would probably lose the protection afforded by the mutual inde- pendence of trustees. But it is not clear that a third person (e.g., a purchaser from the trustees) could question an exercise by the trustees of any of their functions on this ground merely (x). (t) Re Earl of Stamford, (1896) 1 Ch. 288, Stirling, J. ; Re Kemp's Settled Estates, 24 Ch. D. 485. Heard, 1883; Brett, M. B., Cotton, Bowen, L. JJ., affirming Kay, J. Foster v. Abraham, L. B. 17 Eq. 351. Heard, 1874; Sir Geo. Jessel, M. E. Re Norris, 27 0. D. 333. Heard, 1884; Pearson, J. (u) Lewin, ed. 1905, p. 808. But qucereil improper as one of two trustees (the other being the company) for the purposes of the Settled Land Act, 1882 ; see ante, p. 32 (e). (x) Lewin, ed. 1905, p. 808 ; Reid v. Reid, 30 Beav. 388. Heard, 1862 ; Sir John Eomilly, M. E. Foster v. Abraham, supra. limited powers. 40 COEPOBATE EXECUTOES AND TEUSTEES. Appointment of Company as Trustee merely for Protection of the Trust Property. Trustee with A settlor or testator may desire to leave the carrying only or other out of the trusts created by him, either entirely or with certain reservations, in the hands of individual trustees, members of his family or friends, and to associate with them as a co-trustee a company, giving to the latter such powers of interference in the trust, jointly with the other trustees, as may be sufficient to enable it to compel the application of the capital or corpus of the trust property in accordance with the trust, with, possibly, powers of co- operation with the other trustees in certain acts of trustee- ship. Somewhat similar arrangements are occasionally met with in trust instruments, where a business belonging to the trust estate is directed to be carried on by some or one only of several trustees, or where administration of a part of the trust property which is situated in a foreign country is committed to one or more, there resident, of the whole body of trustees. Such a division of the duties of the trusteeship may lawfully be made by express provisions for that purpose in the trust instrument (y). But the stringency of the rules of equity against the delegation by a trustee of any of his duties in the trust to another, whether a co-trustee or stranger, renders it essential that the extent of the intended division of the duties of the office, as between the different trustees, should be stated with precision in the trust instrument. Where such a limited participation of a company-trustee in the affairs of the trust is desired, the object would seem to be attainable, with the least probability of complication {y) Kilbee v. Sneyd, 2 Moll. 186. Heard, 1828; Hart,L.C. (Irish case), at p. 199. Doyle v. Blake, supra, p. 16. CORPORATIONS AS TRUSTEES. 41 in the administration of the trust, by means of a trust instrument vesting the property in all the trustees jointly upon the trusts intended, with the addition thereto of pro- visions varying the preceding declaration of the trusts by specifying the different duties of the respective trustees, and with the further addition of a special indemnity clause for the protection of any trustee against liability in respect of acts of trusteeship from participation in which that trustee is excluded. And since the office of co-trustees is purely a joint one, where the plan last suggested is adopted, the trust instrument should direct the company- trustee to authorise the other trustees or trustee to act in the name of the company as well as personally in cases where the formal concurrence of all the trustees may be necessary, but from participation in which the company- trustee is excluded, the company being, of course, expressly exonerated from responsibility for acts so done; and it should also specially provide that the receipts for money of those only of the trustees who should be entitled under the trust instrument to receive payment should be good discharges to the payers. Custody of Title Deeds by Company-Trustee. Since it may often be convenient, where one of several trustees is a company, that the company-trustee should have the actual custody of the documents of title, by reason of its having facilities for the safe keeping of securities, it may be mentioned that co-trustees have been held to be justified in committing to one of themselves the custody of the deeds and securities relating to the trust other than securities payable to bearer (z). (a) Cottam v. Eastern Counties Rail. Co., 1 John. & H. 243. Heard,1860; Page-Wood, V.-O. Lewin,ed.l905,pp.325, 855. 42 COEPOEATE EXECUTOES AND TEUSTEES. Liability of Company-Trustee for Misfeasances of its Servants or Agents. As regards the extent of a company-trustee's liability for the wrongful acts of its servants or agents in matters connected with the execution of the trust, the fact that a corporation can act only through its officials will not, it is suhmitted, entitle the company to any greater immunity from liability for such misfeasances than is enjoyed by an individual trustee in respect of the wrongful acts of a person employed by him about the business of the trust, whereby the trust estate sustains loss (a) ; and therefore, that in cases in which the immunity of an individual trustee would not extend, the losses caused by such misfeasances must be borne by the company-trustee solely (b). It has been held that the liability of a trustee for the wrongful act of his servant, in connection with the trust, is not increased by the fact of the trustee being remunerated for his services (c). (a) See Lewin, ed. 1905, pp. 277, 279—284. (5) See ante, pp. 15 (x), 38 (r). (c) Jobson v. Palmer, (1893) 1 Oh. 71, Eomer, J.: "I see no sufficient ground for confining the principle laid down in Speight v. Gaunt, 9 App. Oas. 1, to cases where the trustee is unpaid, though, no doubt, some of the judges who decided Speight v. Gaunt did in their judgments refer to the fact that there the trustee was not paid for his services. I think that the principle ought to he applied in a proper ease even where the trustee is remunerated, and I think the present is such a case." In this case the head note says: "The paid trustee under a creditor's deed is not liable either as trustee or bailee for reward for articles stolen by a servant employed by him in carrying on the debtor's business ... if the servant be properly selected and employed, and there is no negligence." CORPORATIONS AS TRUSTEES. 43 But how far this principle would he applied to the case To what of a commercial corporation undertaking the duties of corporate- * executor and trustee for reward as a business is not clear, excu^under In a recent case (d), where a company applied to he the Judicial excused for a breach of trust under a colonial statute for breach which corresponded with sect. 3 of 59 & 60 Vict. c. 35 of trust? (the Judicial Trustees Act), Sir Ford North, in delivering the judgment of the Court, said: "The position of a joint stock company which undertook to perform for reward services it could onjy perform through its agents, and which had been misled by those agents to misapply a fund under its charge, was widely different from that of a private person acting as gratuitous trustee." And the relief was refused (e) . The fact that the company acted honestly and reason- ably will not entitle it to relief as a matter of course. Unless these two things are established, the Court cannot help the trustees ; " but if both are made out, there is then a case for the Court to consider whether the trustee ought fairly to be excused for the breach, looking at all the circumstances" (/). It is submitted here that this latter judgment indicates See also Raw v. Cutten, 9 Bing. 96. Heard, 1832. Tin- dal, C. J. : " The provisional assignee of a bankrupt is not responsible for the fraud of an agent appointed with due care." (d) The National Trustees Co. of Australasia v. The General Finance Agency Co. of Australia, (1905) A. C. 373 (P.O.); Lords Davey, Lindley, Sir Ford North and Sir Arthur Wilson, also "The Times," 22nd May, 1905, p. 3. (e) It must be added that in this case the Court found that the appellants had not done all that was possible to recover the trust fund. (/) Ibid., (1905) A. C. at p. 381 (P. C). 44 COBPOEATE EXECUTOE8 AND TEUSTEES. the principle of future decisions upon this point rather than the decision in Jobson v. Palmer (g). The liability of a trustee for breach of trust may be barred by the Statutes of Limitation. Kemoval of A corporate trustee acting for remuneration may be company- ° ' trustee from removed from office by the Court, if it does not retire voluntarily, where, although the charges of want of honesty, proper capacity, or reasonable fidelity are not made out, its continuance in the trusteeship would prevent the trusts being properly executed (h). (g) As will be seen, supra, p. 42, note (c), the decision, of Eomer, J., is somewhat qualified, and it may be that the case is not a very strong one in relief of corporate executors and trustees. See remarks upon the application of the Judicial Trustee Act, post, p. 65. (A) Letterstedt v. Broers, 9 App. Cas. 371 (P. C). Heard, 1884; Lord Blackburn, Sir E. Collier, Sir E. Couch, Sir A. Hobhouse. 45 Part III. REMUNERATION OF COMPANY FOR SERVICES AS EXECUTOR OR TRUSTEE. (1) Remuneration under Contract. Contract for Remuneration, or Appointment and Remuneration, op Executor or Trustee op Will. Nature and Effect of Contract for Remuneration of Executor. A person may lawfully contract that money shall be Covenant by a payable after his death by his executors or out of his Neuters 1118 estate («), and the money will then be payable as a debt shall P a 7 a , , ,, , , r J sum of money due from the deceased. after Ms When the promisee under such a contract is also a debt?™' ''" executor of the promisor's will, he may retain, out of the assets which vest in him, the sum due to him under the contract, and in respect of this sum he has the executor's ordinary right of retainer in preference to other creditors of the same rank. In such case any (a) Wins. Exors. ed. 1893, p. 1599, and cases there cited; ed. 1905, pp. 96, 1352, and note (k). See also Ex parte Tindal, 1 M. & Scott, 607. Heard, 1832; Tindal, C. J.: "An absolute covenant that a man's executors shall pay a sum. of money to certain persons upon certain trusts, in our opinion, constitutes a debt." 46 CORPORATE EXECUTORS AND TRUSTEES. Executor, right of action for the debt is held to be released creditor. or extinguished by operation of law, by reason of the executor being both dehtor and creditor, provided there are assets out of which the executor may retain to pay himself (b). Where, before the Land Transfer Act, 1897, there were not sufficient assets for the discharge of the debt by retainer as above out of the personal estate, the executor had the remedies given by law to creditors against the heir or devisee in respect of the real estate of the deceased (c) ; or if the executor himself was also the heir or devisee, he might retain for his claim out of the real estate vested in him rateably with the other creditors of the deceased (d). And it would seem that his rights against the real estate of the deceased would be the same since the Land Transfer Act, 1897, even as to real estate which vests in him under that Act, since it has been (b) Wank/ordv. Wankford, 1 Salk. 299, ed. 1795; Holt, C. J., at p. 305. Heard, 1700. Wms. Exors. ed. 1893, p. 1180; ed. 1905, pp. 1058, 1059. Wentworth, Off. Ex. 14th ed. 1829, pp. 76, 79 ; also Player v. Foxhall, 1 Eussell, 538. Heard, 1826 ; Lord Gifford, M. E. (c) Wentworth, Off. Ex. 14th ed. 1829, p. 77 ; Co. Litt. 264, note (6). (d) Loomes v. Stolherd, 1 S. & S. Beps. 458. Heard, 1823. Sir John Leach, V.-C. : "A devisee has a right to retain a debt due to himself, or to his trustee out of the produce of the estate devised to him" (head note) ; but, cf. now, Byrne, J., in Re Hayward, (1901) 1 Ch. 221, at pp. 226, 227, who said that Loomes v. Stotherd could not be treated as a binding authority for the proposition that the tenant for life or cestui que trust who is executor is entitled to retain. It was held in this later case that the trustees of the settlement being the proper persons to sue for and recover a 5,000Z. debt, and not the legal personal representative who had an equitable interest in the debt, the latter had no right of retainer. Also Wms. Exors. ed. 1905, p. 792, note (p). REMUNERATION OF COMPANY FOR SERVICES. 47 recently decided that the Act does not extend the execu- tor's right of retainer in preference to other creditors of the same degree to the real estate which vests in him under that Act (e). The foregoing rules would seem to be applicable to a Remuneration contract by a person to pay to one whom he appoints, or retain?!-, intends to appoint, executor of his will a stipulated remuneration, if the latter shall accept the office, there being no legal objection to the contract merely on the ground that remuneration to the executor is thereby stipu- lated for (/). But in order to entitle the executor to retain for his remuneration in preference to other creditors, it is essential that the remuneration should, under the terms of the contract, become due and payable to him before his functions as executor are brought to an end by the administration having been completed (g) . (e) Be Williams, (1904) 1 Ch. 52. Joyce, J.: "Part I. of the Land Transfer Act, 1897, which establishes a real representative by vesting the real estate of a deceased person in his personal representative, and provides for the adminis- tration of the real estate in the same manner, subject to the same liabilities for debts, costs and expenses, and with the same incidents as if it were personal estate, does not confer any new right of retainer or priority in favour of the personal representative as against real assets " (head note). The executrix, the widow, in this case was claiming to retain out of the real estate in preference to the other creditors. (/) Lewin, ed. 1905, pp. 766, 777, and pp. 308, 309. (g) Re Beeman, (1896) 1 Ch. 48, North, J. In this case an administratrix, an annuitant under covenant by her intes- tate -whose estate was insolvent, wanted to retain for arrears of her annuity, and also for the present capitalised value of her future annuity. She was allowed to retain for all arrears falling due during administration, and only to prove in compe- tition with other creditors for the value of her future annuity. 48 CORPORATE EXECUTORS AND TRUSTEES. Assuming that the law as ahove stated applies to a con- tract for the appointment of a person as executor of a will, and for his remuneration as such, the consideration requi- site (where the contract is not under seal) to support these undertakings on the part of the testator or intending testator would be sufficiently supplied by a reciprocal undertaking on the part of the intending executor to accept the office, if he should be appointed thereto by the will of the other party. As regards the executor's right of retainer under such a contract, it may be observed that where the agreed remuneration is to be a percentage on the aggregate value of the assets, the fact that this value, and therefore the sum to be retained, may not be ascertainable until after the realisation of the whole estate, would seem to be no obstacle to the exercise of the right, since there may be a right of retainer in respect of a claim the amount of which cannot be ascertained until the accounts of the estate have been taken (h). Remuneration As a further security for the remuneration, the contract equitable* 688 m i&bi, ^ desired, include an express equitable charge of charge. t ae remuneration on the estate of the deceased. The effect of such a charge would be that the executor would rank as a secured creditor upon the estate of the deceased, See also He Hargreaves, 44 Ch. D. 236. Heard, 1890, C. A. ; Cotton, Lindley, Lopes, L. JJ. (A) Morris v. Morris, L. E. 10 Ch. App. 68. Heard, 1874; Sir W. James and Sir G. Melliah, L. J J. " There was no distinction between a debt which required accounts to be taken and any other debt which might be the subject of proof by the executors. The mere complication of the details from which the amount of the debt was to be ascertained could not affect the principle " : Sir W. W. James, L. J., at p. 70. REMUNERATION OF COMPANY FOR SERVICES. 49 having priority for his claim over the unsecured creditors (i) . Under the Eeal Estates Charges Acts, 1854 to 1877, such a charge would fall upon the real and personal estates of the deceased rateahly, unless he should have otherwise directed, in accordance with the provisions of the Act. A contract to the effect above stated would not impose Contract for any obligation on the testator or intending testator to mZlylf the appoint the other contracting party his executor. The Pointed 8 latter would be liable for breach of the contract if, having been appointed executor, he renounced the office ; but his right under the contract to the agreed remuneration would arise only in the event of his having been appointed executor and having accepted the office. Contract for Appointment, as well as Remuneration, of Executor (k). It remains to be considered whether, in addition to Contract for undertaking, as last mentioned, to remunerate the pro- as well as remuneration. (*) If the contract is in the nature of a security, then the stamp is no longer as for an agreement. The duty would be paid upon an estimated amount and corrected upon probate. (k) The proposal form in use by some companies would seem to be merely a preliminary inquiry by a testator or settlor. It would not amount to an offer by him, as such forms usually state that " the filling up of this form in no way obliges the proposer to proceed further with the matter." Some forms further provide that, if the company is willing to act, a formal agreement to that effect is required by the pro- poser. The form resembles a specification inviting the com- pany to make a tender or offer. If the testator or settlor accepts the offer of the company when made, whether his acceptance be in writing or by parol, the contract would then be complete unless the company shows that their offer is subject to a formal contract being completed subsequently. A. E 50 CORPORATE EXECUTORS AND TRUSTEES. posed executor, if he should be appointed to and accept the executorship, the intending testator can (by contract made upon the consideration before mentioned) lawfully bind himself — (1) To appoint the other contracting party executor of his will, if he shall die testate ; (2) To leave a will whereby the other contracting party shall be appointed executor thereof. (I) The first of these undertakings would seem to be free from legal objection. The fact that the intending testator's liability thereunder is contingent upon his doing an act which he is not bound to do, viz., leaving a will, does not affect the validity of the contract if that condition is fulfilled (I). And the fact that the intended executor's duties under the contract will not begin till after the death of the testator, and are likewise contingent on his appointment by the will, does not render the consideration for the testator's promise contingent (which would prevent the existence of a contract until the consideration had been rendered) ; since the promise to act as executor, if appointed, is the consideration for the promise of the intending testator. Contract to (2) With reference to the second of the cases above wherebythe mentioned, namely, an undertaking to leave a will whereby company shall ^ ne p rom i se e shall be appointed executor thereof, or to the be appointed r x A Once the tender or offer of the company is accepted, the proposal form, like a specification, would become the basis of the contract. (Z) G. N. Rail. Co. v. Witham, L. E. 9 C. P. 16. Heard, 1873 ; Keating, Brett, Grove, JJ., wherein it was held that there was a sufficient consideration for the defendant's promise to supply goods at certain fixed prices, although there was no binding contract on the part of the company to order any. REMUNERATION OP COMPANY FOR SERVICES. 51 like effeot, " It is well established that a man may validly executor bind himself or his estate by a contract to make any particular disposition (if in itself lawful) by his own will " (m). " Although the promisor cannot be compelled to make a will according to his promise, his estate will be bound by the promise after his death, either in damages or specifically" («). It is also well established that, although a will cannot be made irrevocable by any contract or declaration for that purpose, nevertheless a contract by the maker of a will that he will not revoke it is not in itself unlawful, and, if it be in other respects valid, an action for damages will lie for breach of it (o). It is submitted that these principles extend to the case under consideration ; and accordingly, that if the contract purport to bind the intending testator to make and leave a will appointing the promisee his executor, or not to revoke the appointment of the latter as executor, contained in his will already made, the stipulation will be valid, and damages will be recoverable in the event of a breach of it. The same observations apply to the case of a contract for the appointment of a person as trustee of a will at an agreed remuneration, whether or not he be also appointed executor thereof. (m) Pollock on Contracts, 7th ed. 1902, at p. 352. De Beil v. Thompson, 3 Beav. 469. Heard, 1841 ; Lord Langdale, M. E. Hammer -sley v. De Biel, 12 CI. & F. 45. Heard, 1845; Lord Lyndhurst, L. C, at p. 79. Brookman's Trust, L. E. 5 Ch. 182. Heard, 1869 ; Sir Or. M. Giffard, L. J., at pp. 191, 192 ; 39 L. J. Ch. 138. (») Leake on Contracts, 4th ed. 1902, p. 447. (o) Wins. Exors. ed. 1893, at p. 109 ; ed. 1905, at p. 96; Sheppard's Touchstone, 8th ed. by Atherley, at p. 401, note(g) ; Robinson v. Omanney, 21 C. D. 780. Heard, 1882 ; Kay, J. ; and 23 C. D. 285. Heard, 1883 ; Jessel, M. E., Cotton and Bo wen, L. JJ., confirming Kay, J. e2 52 CORPORATE EXECUTORS AND TRUSTEES. Measure of The measure of damages in the event of a breach of the failure to contract would, it is suggested, be (1) the amount of the faU^ttTact. 1 remuneration that would have been earned, where the breach consists in failure to appoint as executor or trustee the person agreed to be so appointed (p) ; (2) any costs incurred in procuring the appointment of an administrator with the will annexed exceeding the ordinary costs of proof of a will by an executor, if the breach consists in the refusal of the person appointed executor to accept the office according to his contract, or any costs incurred about the appointment of another person as trustee of the will, where the breach is the refusal to accept the trusteeship of the will. The foregoing observations as to a contract for exeoutor's remuneration would seem to apply equally to the case of a contract for the appointment of a person as executor and trustee of a will, where the agreed remuneration is an entire sum in respect of the acceptance of both offices. Proof of a will by a person appointed executor and trustee thereof is in itself an acceptance by him of the trusteeship, and it is presumed that the grant of administration to the syndic of a company appointed executor and trustee would equally amount to an acceptance of the trusteeship by the company (q). Where under the contract the same person is to be appointed executor and trustee, but a separate remunera- tion is payable under the contract in respect of the trustee- ship from that which is assigned to the executorship, the (p) It might or might not be expedient to enforce such a contract in any given case; hut this handbook is merely concerned to ascertain the legal rights of the parties, and does not deal with business considerations. (g) Mucklow v. Fuller, supra, p. 29, note (/). REMUNERATION OF COMPANY FOR SERVICES. 53 executor-trustee's right of retainer in his oapacity as Executor's exeoutor in respect of his claim to remuneration as trustee retainer. would, it seems, be exercisable only as to so much of the last-mentioned remuneration as might become payable during the continuance of the executorship (r) ; though, as to any remuneration incident to the trusteeship, due or to become due under the contract, the trustee would have the rights of a creditor of the estate, whose claim must be Trustee's . j , n . , „ rights of a provided for m the course of the executorship equally with creditor. the claims of other creditors (s). Where under a contract a person agrees to act as trustee but not as executor of another's will, for an agreed remuneration, and accepts the trusteeship, his claim in respect of his remuneration will be merely that of a creditor of the estate. In neither of the cases referred to in the last two para- graphs would the trustee have, under the contract, any claim upon the trust fund for payment of his remuneration, unless the contract contained an express direction for that purpose, or otherwise expressly charged the remuneration upon the trust fund. And any such provision making the trust fund a security for payment of the remuneration should also be noticed and confirmed in the declaration of trusts in the will. It does not appear that the trustee would, apart from a provision in the will, be entitled to any lien upon the fund in respect of his remuneration similar to the Ken given by law to a trustee for his expenses. As to the application of the Real Estates Charges Acts to a charge so created upon a testator's estate, see ante, p. 49. (r) Cf. Be Beeman, (1896) 1 Ch. 48. Heard; North, J"., supra, p. 47, note (g). Loomes v. Stotherd, infra. («) See Loomes v. Stotherd, supra, p. 46, and note there as to Byrne, J. 54 CORPORATE EXECUTORS AND TRUSTEES. (2) Contract for Appointment and Remunera- tion, or for Remuneration of Trustee of a Settlement. In the case of a contract for the appointment of a person as trustee of a settlement at an agreed remuneration, the intended trustee would, of course, have a claim against the other contracting party personally for payment of the agreed remuneration, in accordance with the terms of the contract (t). Whether he would have any claim under the contract upon the trust property in respect of his remuneration would depend on there heing provisions for the purpose in the contract and settlement, assuming the settlor to he the other contracting party, similar to those No lien by law referred to ahove (w). For the lien on trust property property for given hy law to trustees, in respect to their costs and fronfeypress charges, °f course would not extend to a trustee's remu- prorision. neration, whether in the case of a will or a settlement. It is suhmitted that where no contract has heen entered into for the appointment and remuneration of a trustee of a settlement, before the execution of the settlement by which the appointment is made, the provisions of the settlement relative to the trustee's remuneration are in effect an offer or proposal merely, until acceptance of the Acceptance trust by the appointee, and that upon his acceptance a of office "by . . company- contract is thereby constituted upon the terms of the settlement^). It may be observed, however, that an (t) Failure to pay the fees would not dissolve the contract. (u) pp. 48, 53, as to such provisions in a will. (x) Acceptance of a trust may be express ; or constructive, by doing such acts as are only referable to the character of trustee ; or by long acquiescence. Underhill, Trusts, ed. 1904, p. 147, Art. 27. " With respect to the liability of a trustee, it is perfectly immaterial to him whether he declare REMUNERATION OF COMPANY FOE SERVICES. 55 offer or proposal made by deed lias been held not to be revocable by the offeror, as is an offer not under seal, before acceptance by the offeree (y). A contract between a beneficiary under a will or deed, who is personally capable of binding himself by contract, and a person who thereby agrees to accept a trusteeship or executorship, will, of course, give the latter a remedy only against the beneficiary personally, unless the bene- ficiary has also given a charge upon his own interest under the trust deed or will to the trustee personally, as security for his remuneration. Mattel's affecting the Rights of an Executor or Trustee under a Contract for Remuneration. The validity in general of a contract for remuneration of a person appointed executor or trustee, before he accepts the office, is established by authority (s). But such a con- Ms acceptance by deed or parol, or his consent be implied from Ms acts." Lewin, ed. 1904, p. 223 (19). Where a corporation makes no contract by letter or parol antecedent to the execution of the settlement, it is submitted that it would be bound, nevertheless, where it executed a transfer of the stocks and shares constituting the trust estate ; as being an act "only referable to the character of trustee." As to breach of contract and retirement, see post, p. 57. (y) Xenos v. Wiclcham, L. E. 2 H. L. 296. Heard, 1866, 1867. Roberts v. Security Insurance Co., (1897) 1 Q. B. Ill ; Lord Esher, M. E., Lopes, Eigby, L. JJ. (z) Re Sherwood, 3 Beav. 338. Heard, 1840. Lord Langdale, M. E. : "A solicitor who is trustee is not entitled to charge for his professional services, which must be assumed to have been rendered in Ms character of trustee? but under a contract, properly entered into, he may be entitled to his professional charges." Douglas v. Archbutt, 2 De G. & J. 148. Heard, 1858 ; Turner and Knight-Bruce, L. JJ., 56 CORPORATE EXECUTORS AND TRUSTEES. tract, it has been said, will be watohed with jealousy by tbe Court, and must be freely made, and not submitted to from pressure (a). And where the intended trustee who bargains for remuneration is a solicitor acting in the preparation of the instrument of trust which provides for the trustee's re- muneration, it may be difficult to uphold the contract, unless the client had independent professional advice, or unless the precise nature of the arrangement was distinctly explained to him (b). It may be that the same observa- tion applies where the instrument of trust is prepared by the solicitor of the intended trustee. It has been stated, generally, that where such a contract for remuneration is originally valid, the conditions of it must be fulfilled to the letter to entitle the executor or trustee to his reward (c). But an allowance in the nature of a legacy, given by a will for the executor's remuneration, does not necessarily cease on the institution of an action for the administration of the estate, since the executor still has duties to discharge the question here was whether the plaintiff, an auctioneer and trustee, was entitled himself to charge commission where he acted under a deed which contemplated a sale by auction. Held, that he was. Lewin, ed. 1905, p. 767. (a) Lewin, ed. 1905, p. 767 (13). (6) Moore v. Frowd, 3 My. & C. 45. Heard, 1837. Lord Cottenham, L. C, at p. 48: "The agreement must be dis- tinct, and in its terms explain to the client the effect of the arrangement ; and the more particularly when the solicitor for the client, becoming himself a trustee, has an interest personal to himself adverse to that of the client." See also, Lewin, ed. 1905, p. 767. (c) Lewin, ed. 1905, p. 767, citing Gould v. Fleetwood, 3 W. P. Wms. 6th ed. 1826. Heard, 1732. REMUNERATION OF COMPANY FOR SERVICES. 57 under the Court's direction (d) ; and presumably the rule is the same where the remuneration has been oontraoted for. Where a contraot is entered into for the appointment of Retirement of i. ii- i- lj-iji pj remunerated a trustee and his remuneration, and the trustee, atter trustee ap- having accepted the office, retires from the trust without a ,0 ^r a " t nder the concurrence of all the benefioiaries, whether on the appointment of a new trustee in his place, or, where there are more than two trustees, under the provisions of the Trustee Act, 1893, s. 11, or by availing himself of the provisions of that Act (sect. 42) as to payment of the trust funds into Court, it would seem that he would thereby commit a breach of the contract; at least, if the retirement was not reasonably necessary under the ciroumstances of the case ; and that he would thereby forfeit his right to any remuneration not already earned, and be liable in damages for breach of his contract. This would seem clearly to be the case if he had contracted not merely to accept, but also to act in, the trust ; and even a contract merely to accept the office would doubtless be held to imply a promise to fulfil the duties thereof. But his retirement in any of the above-mentioned ways would seem to be valid as regards his discharge from the trustee- ship, notwithstanding that he might be liable in damages for his breach of contract to act as trustee. (d) Baker v. Martin, 8 Sim. 25. Heard, 1836. Sir Lancelot Shadwell, V.-C. : " Unless it was shown that the trouhle of the executorship had ceased, he would not hold that the annuity had ceased." 58 CORFORATE EXECUTORS AND TRUSTEES. (3) Testamentary Provisions for Remuneration of Executors and Trustees. A provision in a will for the remuneration of a person thereby appointed executor or trustee {not being a provision made in fulfilment of a previous contract with the party so Remuneration appointed) is in effect a legacy to him, and is therefore a legacy , liable to duty: liable to legacy duty(e). And it has no priority over other pecuniary legacies, and must therefore abate with them in case of deficiency of assets (/), unless, of course, the will directs that it shall have such priority. Where, however, as is commonly the case with corporate executors and trustees under wills, the provision in the Not so, how- will as to remuneration is made in pursuance of a prior viously con- contract, the remuneration would appear not to be a gift (g), but a debt, and therefore not liable to legacy duty (h). It would seem, moreover, in this character to be a valid tracted for. (e) Re Thorley, (1891) 2 Ch. 613, Lindley, Bowen and Kay, L. JJ., affirming North, J. ; Re White, (1898) 2 Ch. 217 ; Lindley, M. E., Ohitty, Collins, L. JJ. Such remunera- tion would not be a " testamentary expense." (/) Duncan v. Watts, 16 Beav. 204. Heard, 1852. Sir John Komilly, M. R. : "A bequest of an annuity to an executor for his trouble has no priority over other legacies in case of a deficiency, and it must abate." It was urged for the executor, that as it was given for the purchase of future services it was not liable to abate. See also Re While (previous note), Chitty, L. J. : "The declaration made by the testator is bounty on his part. No one can claim the bounty until the creditors are satisfied. The principle applies not only to solicitor-trustees but ... in fact to all professional trustees." {g) See Lindley, L. J., in Re Thorley, supra, at p. 624. "If they" (the executors) "could charge the estate apart from the will, that would alter the question very materially." (A) But cf. Hanson's Death Duties, ed. 1904, pp. 364, 365, Legacy Duty. REMUNERATION OF COMPANY FOR SERVICES. 59 deduction from the value of the estate for the purposes of estate duty. All speoialty and simple contract debts are now payable pari passu (32 & 33 Vict. cc. 46, 51), so that a contract as to remuneration under seal would have no advantage over one merely under hand (i). It has been held that an exeoutor to whom a legacy is given for his trouble is entitled to it, although he has not proved the will, if he has in some way acted as executor (k). And where letters of administration with the will annexed had been granted to the attorney of an executor who was absent from England, and the estate was administered by the attorney, it was held that the executor was entitled to a legacy given him by the will for acting as exeoutor, although he had done no act of executorship beyond appointing the attorney (/). It seems, therefore, that a company appointed executor would be entitled to remunera- tion given to it by way of legacy, although it had merely acted as executor so far as to appoint a syndic to take administration for its use and benefit. (f) " But when questions of preference and retainer arise, they do not stand in equal degree," Walker & Elgood, ed. 1905, p. 202 (r). "The executor may not pay simple contract debts in full in priority to a specialty debt of which he has notice," ibid, at p. 205. (k) Hollingsworth v. Grasett, 15 Sim. 52. Heard, 1842; Sir Lancelot Shadwell, V.-O. See also Jarman on "Wills, ed. 1893, p. 971. (1) Lewis v. Matthews, L. E. 8 Eq. 281. Heard, 1869; Malins, V.-O. 60 General Obseryations. Copyholds where there is no custom of the manor to admit a corporation. CAPACITY OF CORPORATIONS TO HOLD LAND AS BEARING; ON THE PRESENT SUBJECT. The law as to the capacity of a corporation to hold land — which extends, of course, to land held upon a trust — requires some notice. Under the provisions of the Mort- main and Charitable Uses Act, 1888, the acquisition of land by a corporation renders the land liable to forfeiture to the Crown (or, in some circumstances, to the lord of a manor), unless the acquisition was authorised by licence from the Crown, or express statutory provision. The Companies Act, 1862, s. 18, expressly empowers companies registered thereunder to hold land ; and a company incorporated by special statute is usually given the like power by its statute. The lord of a manor, however, is not bound (unless by special custom) to admit a corporation as tenant of copy- hold land of the manor. In practice, where copyhold land is acquired by a corporation, a nominee of the corporation is admitted as tenant of the land, and a declaration of trust for the corporation is executed by him (a). Under the Land Transfer Act, 1897, s. 1 (4), copyhold (as) Scriven on Copyholds, ed. 1896, p. 137; and Elton on Copyholds, ed. 1893, p. 51. GENERAL OBSERVATION. 1 ?. 61 land, of which the deceased was tenant on the court rolls, does not pass to his personal representatives. But it has heen held that an equitable estate of the deceased in copy- hold land passes under the Act to his personal representa- tives (b), as if it were a chattel real vesting in them ; and since it may be desirable that the personal representative should subsequently convert the equitable estate thus vested in him into legal ownership — for which purpose he must procure admittance of himself as tenant on the court rolls — the disability of a corporation to be admitted as tenant may occasionally be a matter to be dealt with by a company-executor. And it will have to be provided for by a company-trustee in every case where the copyhold estate subject to the trust is the legal estate of the tenant on the court rolls and the company is not entitled to admittance by special custom of the manor (c). (6) In re Somerville and Turner's Contract, (1903) 2 Ch. 583, Kekewich, J. (e) It is submitted here that the practice of appointing a nominee to take admittance on the court rolls would he available to a corporate-executor or trustee. " Directors are called trustees. They are, no doubt, trustees of assets which have come into their hands, or which are under their control," Jessel, M. E., in Forest of Dean, Sfc. Co. (1879), 10 C. D. 450. See Palmer, Company Law, ed. 1905, pp. 152, 154; and Farwell, J., in Young v. Naval and Military Co-op. Society, (1905) 1 K. B. at p. 693. Nevertheless, a company owning copyholds would appear to place the legal estate in the hands of a nominee without being liable for breach of trust to the shareholders. Similarly, it would appear that a charitable corporation would not commit a breach of trust if the legal estate of its copyholds were in the hands of a nominee. Again, it is no breach of trust for a corporate executor to permit a syndic to take administration on its behalf, although, as has been shown {ante, p. 11), until such grant is revoked 62 CORPORATE EXECUTORS AND TRUSTEES. Conversion of It is a matter of some importance for corporations, executors or when proposing to act as executors or trustees under will 8 , a™mf SUnder to take care, where copyholds are concerned and are intended to be sold, that no devise of the legal estate is made to them in the will. If it is desirable to provide for the sale of the copyholds, the will should merely direct the executors to sell without devising to them the legal estate. They can then convey by bargain and sale, and the purchaser only need be admitted, without any sur- render, and not the corporation ; for, in such case, the purchaser is admitted as taking directly under the will, and thus the admittance of the corporation, or its nominee, for which a fine would be payable to the lord, is avoided (d) ; Power of sale whereas, if the legal estate were devised to the executors guished from in trust for sale, the executors or trustees, before selling, forsale. must be admitted as tenants holding of the lord of the manor. The same principle applies where the testator does not devise the legal estate of his copyholds to his trustees in trust for sale, but gives them only a power to appoint in favour of a purchaser, as — " I devise all my estates and hereditaments of copyhold or customary tenure to such uses, upon such trusts and subject to such powers and provisions as the trustees, &c. shall by deed appoint, for the purpose of carrying into effect any sale or sales in pursuance of the trust hereinafter contained " (e). the administrator has full control over the assets, and can assent to a legacy or convey the legal estate (post, p. 63). There is a lack of authority upon the subject of devises of copyholds to corporations and the application of the Wills Act thereto. (d) Edwards, Law of Property in Land, ed. 1904, pp. 168, 172 ; Emmet, Notes on Perusing Titles, ed. 1903, p. 244. (e) Key & Elph. ed. 1902, vol. i. at p. 537 (cc) ; vol. ii. at p. 733, § vii. GENERAL OBSERVATIONS. 63 It will be observed that this power of appointment should be followed as shown by a declaration that it is given to the intent that the trustees shall sell the land (/). By this form the purchaser becomes entitled to be admitted as if he had been entitled by the will, and the admittance of the trustees, or their nominee, and fine due thereon is avoided. These observations have no point where the estate of the testator is merely an equitable one (g), for the lord is only entitled to a fine in respect of transmission of the legal interest, and not in respect of devolution of the equitable title so long as the legal estate remains in a tenant on the rolls (h). There is no objection to an assignment or bequest of pure personal estate to a corporation upon trust (i). Where corporations act as executors of a will dealing with real estate, the question has been asked whether the syndic or the corporation conveys. It is submitted that it is the syndic who alone has any Does the title to convey. For, as has been shown, "when a general eutoror syndic grant of administration has been made, the administrator, oonve y whether entitled in his own right to the administration or claiming only as the attorney of another, is fully com- petent to deal with the whole estate coming to his hands " (k). So long as the grant to the executor's (/) Elphinstone, Introd. to Conr., ed. 1900, at p. 467. (g) Be Townsend, (1895) 1 Ch. 716, Stirling, J. (A) Hall v. Bromley, 35 Ch. D. 642 (0. A.). Heard, 1887. (i) Lewin, ed. 1905, p. 31. (A) As if he had obtained letters of administration in his own right : see ante, p. 1 1 . See also, Bayard, in the goods of, ante, p. 20. Sir H. Jenner Fust : " My impression is, that a will proved by an attorney of an executor is the same thing as if actually proved by himself." 64 CORPOEATE EXECUTORS AND TRUSTEES. Can the nominee subsists, the executor can do no acts of executor- c^veyP ship, for sect. 75 of the Court of Probate Act, 1857, provides that " after any grant of administration, no person shall have power to sue or prosecute any suit, or otherwise act as executor of the deceased, as to the personal estate comprised in or affected by such grant of administration until such administration shall have been recalled or revoked." This provision now extends, under sect. 2 (2) of the Land Transfer Act, 1897, to real estate which passes under that Act to the personal representatives. Moreover, although the executor's title comes from the will and not from the probate, the corporation never obtains probate, and probate is the only legal evidence of the executor's title to act (I). " The executor cannot assert or rely on his right in any Court without showing that he has first established it in the Probate Division" (m). It may be urged, however, regard being had to the decision in Pawky v. London and Provincial Bank (n), that all the executors must concur in a conveyance of real estate, and not only those who prove ; that the corporation must join with the syndic in any con- veyance. Certainly, probate granted to one, as has been shown, enures for the benefit of all ; and if those who have not proved accept the office, they fully represent the testator without further probate, and may join with the executor who has proved in all acts which executors must join in doing, as in bringing or defending an action, or in selling or conveying real estate under the Land Transfer Act, 1897, and assenting to a devise (o) ; and further, one of (I) "Walker & Elgood, ed. 1905, pp. 149, 150. (m) Wms. Exors. ed. 1893, p. 242; ed. 1905, p. 213. (n) (1900) 1 Ch. 58, Kekewich, J., supra, p. 24. (o) Supra, p. 24. GENERAL OBSERVATIONS. 65 several administrators stands on the same ground and foundation with one of several executors (p). But the grant of administration to the syndic for the use and benefit of a corporation would not seem to be a grant of joint administration such as would permit of the appli- cation of the above principle. The true conception of the matter would appear to be that the corporation is an executor, but an executor under a disability, as one durante minoritate or durante absentia. And therefore, so long as this disability continues, it would appear that the corporate executor cannot contribute any material validity to a conveyance of the estate. It should be remembered that a conveyance to a devisee is not necessary. The representatives may convey or assent, at their option (q). Protection to Corporate Executors and Trustees in Case of Breach of Trust. The liability of corporate executors and trustees for breach of trust has already been referred to, and it will be desirable to consider how far a corporation may claim to be relieved from liability under sect. 3 (1) of the Judicial Trustees Act, 1896. As has been pointed out by many writers, this section was founded on the report of the Select Committee on Trusts Administration (r). The (p) Jacomb v. Harwood, 2 Ves. sen. 267, 268. Heard, 1751 ; Sir John Strange. Smith v. Everett, 27 Beav. 446, at p. 454. Heard, 1859 ; Sir John Eomilly, M. E. "Wms. Exors. ed. 1893, p. 821 ; ed. 1905, p. 720. "The question is now settled," Walter & Elgood, ed. 1905, p. 179, note (2). (g) Be Pix, W. N. (1901) 165, Byrne, J. Possibly there would be no objection to the corporation joining in any conveyance ; and conveyancers may adopt this practice. (r) Eeport printed, 6th May, 1895, at p. iv. A. * 66 CORPORATE EXECUTORS AND TRUSTEES. passage referred to was as follows : " In a recent decision in the House of Lords {Speight v. Gaunt (s)), a step was taken in the direction of alleviating the position of a trustee, and the overwhelming weight of opinion among the witnesses who gave evidence before your Committee was in favour of a still further alleviation. Tour Com- mittee recommend that the Court be empowered to relieve any trustee from personal responsibility when satisfied that he has acted honestly and reasonably, with the intention of carrying out the terms of the trust, and ought fairly to be excused for having acted without the directions of the Court." Speight v. Gaunt decided that a trustee is not liable for the fraud of an agent (in that case a stockbroker) to whom he has entrusted the trust moneys, where obliged to do so from necessity, acting according to the usual practice of mankind in business of a like nature and as prudently as if acting for himself ; and the agent has been properly employed. Application It will be seen, however, that the relief which the legis- Trutte^s Act 1 lature placed in the discretion of the Court is not confined 1896, to solely to cases where all the conditions just enumerated corporations. are present. The section goes further, and empowers the Court in its discretion to relieve in all cases where the trustee " has acted honestly and reasonably, and ought fairly to be exoused," as follows : — "3. — (1.) If it appears to the Court that a trustee, whether appointed under this Act or not, is or may be personally liable for any breach of trust, whether the (s) Speight v. Gaunt, 9 App. Cas. 1, 33; 53 L. J. Ch. 419; 50' L. T. 330 ; 32 "W. E. 435. Heard, 1883; Lord Selborne. L. C. GENERAL OBSERVATIONS. 67 transaction alleged to be a breach of trust occurred before Relief under or after the passing of this Act, but has acted honestly and Trustees Act. reasonably and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the Court in the matter in which he committed such breaoh, then the Court may relieve the trustee either wholly or partly from personal liability for the same. " (2.) This section shall come into operation at the passing of this Act " (t). It has already been decided that " the section is meant to be acted upon freely and fairly in the exercise of judicial discretion," but that no general rules or " prin- ciples can be laid down as those to be acted upon in carrying out the section, each case depends on its own circumstances" (w). It is not enough that the trustee should have acted honestly or reasonably, or both; unless these two things are established the Court cannot help the trustee ; but if both are made out, then there is a case for the Court to consider whether the trustee ought fairly to be excused for the breach looking at all the circumstances (»). It has also been said that " the position of a joint stock company which undertook to perform for reward services (0 14th August, 1896. («) Byrne, J., in Re Turner, (1897) 1 Ch. 536, at p. 542; approved in Re Stuart, (1897) 2 Oh. 583, Stirling, J. ; and by Eomer, J., in Re Kay, 1897, 2 Oh. 518, at p. 524. "The meaning which the Court ought to put upon the section, and how that meaning ought to be applied to particular facts, is one of extreme difficulty " : Kekewich, J., in Perrins v. Bellamy, (1898) 2 Ch. at p. 526. (a;) Sir Ford North, supra, p. 43. Of. Kekewich, J., in Perrins v. Bellamy, (1898) 2 Ch. at p. 528 ; and Farwell, J., in Lord de Clifford v. Quilter, (1900) 2 Ch. at p. 713. f2 68 CORPORATE EXECUTORS AND TRUSTEES. Relief under it could only perform through its agents, and which had Trastees Act. keen misled by those agents ... was widely different from that of a private person acting as a gratuitous trustee" (y). The onus of proving that he acted honestly and reason- ably lies with the trustee (3). One test that the Court will apply in judging of reason- ableness, is whether the trustee has " acted with the care he would probably have taken if the money had been his own " (a). Trustees seeking the relief of the Act are not bound specially to plead it, though it may be desirable for them to do so (b). The section applies to a devastavit by an executor, with the further qualification in such case that there has been no undue delay by the executor in advertising for claims against the estate, as provided for by 22 & 23 Yict. c. 35, s. 29 (c). If trustees have acted reasonably in other respects, they are not to be held to have acted unreasonably because they did not obtain the direction of the Court (d). A trustee who does nothing, accepts without inquiry what is said by his co-trustee, and is satisfied with any explanation (y) Supra, p. 43. (z) In re Stuart, Smith v. Stuart, W. N. (1897) 84 (4), Stirling, J. (a) In re Turner, Barker v. Ivimey, (1897) 1 Ch. 536, Byrne, J. (J) Singlehurst v. Tapscott SS. Co., Ltd., W. N. (1899) 133 (0. A.), Lindley, M. R., Jeune, P., Eomer, L. J. (c) In re Kay, Mosley v. Kay, (1897) 2 Ch. 518, Eomer, J. id) Perrins v. Bellamy, (1898) 2 Ch. at p. 533, Kekewich, J. GENERAL OBSERVATIONS. 69 given by him, does not act " honestly " within the mean- Relief under ingoftheAct( e ). Set Act. Enough has perhaps now been said to show the prin- ciples guiding the Court in the construction of the seotion of the statute. It now remains to set out briefly, by way of example only, some concrete cases wherein, since 14th August, 1896, the date of the Act coming into force, the Court has applied these principles in granting or refusing relief. A trustee (1) acted on a valuation which stated merely the amount for which the property was a good security, without stating the value of the property; and (2) ad- vanced more than two-thirds of the value stated in the valuation. In each case the valuer was employed by a solioitor who acted for the mortgagor also, and the trustee did not allege that he reasonably believed the valuer to be employed independently of any owner of the property. Belief refused (/) . A trustee in making an improper investment, improper as to its nature and value, relied on the superior knowledge of his co-trustee, the solicitor to the trust. Belief was refused, as the Court was not Satisfied that the trustee had acted with the care he would probably have taken if the money had been his own (g). A trustee trusting in the integrity of his co-trustee, allowed him, a solicitor, to receive the proceeds of certain trust funds and pay the same into the banking account of his firm. The solicitor died indebted to the bank on his (e) Second East Dulwich Building Society, 68 L. J. Ch. 196. Heard, 1899 ; Kekewicli, J. (/) In re Stuart, Smith v. Stuart, (1897) 2 Ch. 583, Stirling, J. (ff) In re Turner, supra, p. 67. 70 CORPORATE EXECUTORS AND TRUSTEES. Relief under private account. The bank was allowed to set off the Trustees Act. moneys standing to the office account, whereby the trust fund was lost. Relief refused (A). A testator died in June, 1894, with assets 22,000/. and debts of about 100/., so far as then ascertained. The executor paid the widow a legacy of 300/., and provided maintenance before advertising for claims. In August, 1894, a claim for rents received as agent by the testator was made against the estate. In November, 1894, the usual advertisement for creditors was issued. In December, 1894, an action for fraudulent misappropriation was begun. The executor continued the maintenance to the widow till, in April, 1896, a judgment of 26,000/. in the action against the estate made it insolvent. Partial relief granted. Undue delay in advertisement for creditors. Executor had acted reasonably under all the circumstances in paying the 300/. and maintenance up to the issue of the writ, but not after («). Trustees erroneously assumed that they had a power of sale, and sold settled leaseholds, and thereby diminished the income of the plaintiff, who, as tenant for life of a moiety, was entitled to rents and profits in specie. The sale would have been a proper one if the trustees had in fact possessed a power of sale. Relief granted. Found to have acted honestly and reasonably (k). (A) Wynne v. Tempest, (1897) 1 Ch. 110 ; W. N. (1897) 43 (14), Eomer, J. (i) In re Kay, Mosley v. Kay, (1897) 2 Ch. 518, Eomer, J. (fc) Perrins v. Bellamy, (1898) 2 Oh. 521, Kekewich, J., and 0. A., (1899) 1 Ch. 797. "My old master, the late Lord Justice Selwyn, used to say, the main duty of a trustee is to commit judicious breaches of trust," Lindley, M. R., at p. 798 ; "I have not the slightest doubt that it was a most judicious breach of trust," at p. 801 {i.e., in the present case). GENERAL OBSERVATIONS. 71 A testator by his will gave his real and personal estate Relief under to his executors and trustees upon trust, to maintain the Trustees Act. same in the like mode of investment, &o. The estate comprised a debt of 1661., due upon a promissory note payable on demand ; the executors, behoving the man to be a man of good credit, neither called it in nor applied to the Court for directions. The debtor died insolvent. Belief granted. Having regard to the terms of the will, executors might reasonably have thought their attitude a right one (/) . Executors during five years' administration of an estate, knowing that large sums were necessary for the payments of debts, &c, relied upon the statements of their solicitors that the funds already placed in their hands were ex- hausted, and remitted further amounts. The solicitors failed, and it was found that the total amount paid was in excess of the amount required, and the balance was lost to the estate. Relief granted (m). Trustees of a marriage settlement, without the consent of the wife, sold out India Stock forming part of the trust funds, and invested the proceeds thereof on a transfer of a third sub-mortgage in Ireland. They took no legal advice as to the propriety of this investment. The loss arose not from any defect in the title or nature of the security, but from an unforseen depreciation in value. Found, that they acted honestly but not reasonably, and in the parti- cular case the investment was a breach of trust. Relief refused (w). Where an executor, acting honestly and reasonably, allowed after inquiry a claim by the testator's widow, who (F) Clews v. Grindey, (1898) 2 Ch. 593, Kekewich, J., and C. A., ibid. (m) Lord de Clifford's Estate, (1900) 2 Ch. 707, Farwell, J. (») Chapmanv. Browne, (1902) 1 Oh. 785(C.A.),Eomer,L. J. 72 CORPORATE EXECUTORS AND TRUSTEES. Relief under was co-executrix of the will, to a large sum of money Trustees Act. which, as she alleged, belonged to her, but was represented by securities apparently belonging to the testator : it was held that it was competent for the executor to compromise such a claim in a proper case, even if allowed in full. Found to have properly exercised his executorial power, and to have acted honestly and reasonably, and relief was granted (o). Where an executor of a deceased solicitor was bond fide and on reasonable grounds satisfied that he could not maintain an action against a client personally to recover costs incurred in an administration action and owing to the solicitor, there being an arrangement between the solicitor and the client to the effect that the latter should not be personally liable to the solicitor for costs, except in the event of his being unable to recover the same in the administration action: it was held that the exeoutor, having acted honestly and reasonably, ought fairly to be ex- cused^). (o) In re Houghton, Hawley v. Blake, (1904) 1 Ch. 622, Kekewich, J. (p) Re Roberts, Knight v. Roberts, 76 L. T. 479. Heard, 1897 (0. A.), Lindley, Lopes, Kigby, L. JJ. / GENERAL OBSERVATIONS. 73 Amalgamation of Corporate- Executor and Trustee Company with another Corporation. Where a oompany acting as executor and trustee is bought up by another company, and ceases to exist as a separate company owing to the absorption, the question would arise as to the administration of the estates in hand, owing to the fact that the offices of executor and trustee are not assignable. The forms of appointment might be framed to provide for this contingency ; but where this is not done, three courses, and possibly others, would seem to be available to those concerned — (a) The old company might be kept alive, nominally, until the estates in hand were fully administered. (b) The company-trustee might retire, and, where possible, secure the appointment of the purchasing company in its place, (o) A private Act of Parliament might perhaps be per- mitted, to authorise the transfer of the estates and trusts to the purchasing company, the assent of those beneficiaries who were sui Juris being first obtained. 74 CORPORATE EXECUTORS AND TRUSTEES. Legacies which impose upon Executors the Duties of Trustees. Legacies There is a certain class of legacies which may impose upon ex™? 086 upon executors duties which are those of a trustee, and the outers the question may arise, where a corporation has employed, or trustees. acquiesced in the employment of, a form of appointment appropriate to executors only, whether the fees due upon the performance of the duties of trustee could properly be charged, the beneficiaries not being sui juris. A gift to a married woman with a restraint on anticipation during coverture would be a legacy of this class. Here, unless it be apparent that the testator intended that she should receive the capital, the interest only of the investments of the money would be payable to the legatee during coverture (q). Again, " where a legacy is not given to trustees in trust for an infant, but to the infant direct, and is vested, the executors, on assenting to the bequest, become trustees for the infant within the meaning of the Conveyancing Act, 1881, s. 43, and equally so if the gift is residuary ; and it seems clear that this would be the case where there is a gift to the infant direct contingent on attaining twenty-one, with intermediate interest " (r), and bequests of annuities for life payable periodically, or to a woman for her separate use without power of anticipation (s). In (q) Edwards, Law of Property in Land, ed. 1904, 453, 454, citing Re Ellis, 17 Bq. 409 ; 43 L. J. Oh. 444. Heard, 1874 ; Sir Geo. Jessel, M. E. Key & Elph. Prec, ed. 1902, vol ii. 714, 716. if) Key & Elph. Prec, ed. 1902, vol. ii. p. 715 (c). (*) Key & Elph. Prec, ed. 1902, vol. ii. p. 724. GENERAL OBSERVATIONS. 75 all such cases it may possibly be beld tbat where, under tbe circumstances, tbe office of executor implies a trustee- ship, the corporation, by a corresponding implication, would be entitled to the fees for so acting, although the remuneration clause in terms provides for executors' fees only. Special Executor for Private Papers. It may be that some testators, in appointing a corpora- individual tion executor, would desire to place their private papers in private the hands of some member of their family as legatee, with P a P erB - a request that they should be examined and destroyed at discretion. Such a legacy would not prevent the cor- porate-executor from examining the papers if it thought fit to do so. The better method to prevent this is to bequeath the papers to a legatee, who should be made special executor as to them. As has been seen, there is no impediment to the appointment of a special executor jointly with a general corporate-executor (t) . .(0 Ante, p. 27 ; and see Key & Elph. Prec, ed. 1902, vol. ii. p. 690 (a). 76 COEPOEATE EXECUTOES AND TEUSTEES. What does re- muneration cover f What does Remuneration of Corporate Executor or Trustee include ? A matter that merits careful consideration is the ques- tion as to what outlay does the remuneration of a paid trustee or executor cover ? " Though a trustee is allowed nothing for his trouble, he is allowed everything for his expenses out of pocket. It flows," said Lord Eldon, " from the nature of the office, whether expressed in the instrument or not, that the trust property shall re-imburse him all charges and expenses incurred in the execution of the trust " (u). " An unpaid trustee is entitled to complete indemnity for all proper expenses incurred by him in the execution of the trust" (*). "But different considerations apply to the case of a paid agent or paid trustee. ... If he is paid on the basis of providing anything at his own expense, he cannot get paid twioe over by claiming the costs thereof under his right to indemnity. A paid agent is bound to discharge all the duties incident to his agency for the payment (u) Lewin, ed. 1904, p. 770. No one who has a duty to perforin shall place himself in a situation to have his interests conflicting, with that duty. The good sense of the rule is obvious, hecause it is one of the duties of a trustee to take care that no improper charges are made. The check of taxa- tion is not enough. The settlor has a right to the check and to the principle : See Lord Oranworth, Broughton v. Broughton, 5 De Q. M. & G. 160, at p. 164. Heard, 1855. And Cotton, L. J., in Be Corsellis, 34 Oh. D. 675; 56 L. J. (N. 8.) Ch. 296. Heard, 1887. "The estate is to he protected hythe unbiassed judgment of the trustee" : Baron Alderson in Fraser v. Palmer, 4 T. & 0. 515. Heard, 1841, at p. 517. (x) Harwell, J., in Young v. Naval and Military Supply Asson., (1905) 1 K. B. at p. 694. GENERAL OBSERVATIONS. 77 agreed on, and cannot make extra charges for work properly -within the scope of his employment as agent. Thus, in Marshall v. Parsons (y), a commission agent for the sale of goods sought to charge, in addition to his commission, for attendances at Somerset House, where the patterns of the goods were inspected by Government officers. Lord Cranworth (then Rolfe, B.) directed the jury that the question was whether what the plaintiff did was or was not done in the ordinary course of his business as an agent. If the former, he was paid by his com- mission ; if the latter, he was entitled to be paid for them separately "(s). Nevertheless, it is open to the testator or settlor to Remuneration direct remuneration to be paid (a) ; and a specific remu- excluding ° r neration given by the testator for services in the trust ex P enses - is no reason for excluding the trustees from the usual allowance for expenses (6) . Under a contract properly entered into, the trustee may be entitled to his professional charges (c). The agreement, " however, must be distinct, and in its terms explain to the client the effect of the arrangement, and the more particularly when the person remunerated, (y) 9 C. & P. 656. Heard, 1841. (z) Farwell, J., in Young v. Naval and Military Supply Asson., supra. (a) Webb v. The Earl of Shaftesbury, 7 Ves. 480. Heard, 1802; Lord Eldon. Robinson v. Pett, 3 P. W. 249. Heard, 1734 ; Talbot, L. 0. Willis v. Kibble, 1 Beav. 559. Heard, 1839 ; Lord Langdale, M. E. (b) Wilkinson v. Wilkinson, 2 S. & S. 237. Heard, 1825 ; Sir John Leach, V.-O. Fountaine v. Pellet, 1 Ves. 336. Heard, 1791 ; Buller, J., for the Lord Chancellor. Webb v. The Earl of Shaftesbury, 7 Ves. 480. Heard, 1802 ; Lord Eldon. (c) Re Sherwood, 3 Beav. 338. Heard, 1840 ; Lord Lang- dale, M. E. 78 CORPORATE EXECUTORS AND TRUSTEES. Remunera- tion. Charges and expenses. Prospectus terms as to expenses. becoming himself a trustee, has an interest personal to himself adverse to that of the client" (d). It certainly would appear that the agreements for expenses put forward by corporations acting as executors and trustees under a scale of remuneration are entirely distinct from, and in addition to, the fees themselves. In the prospectus, some such provision as the following will generally be found : — " In addition to the foregoing scale of fees, estates or persons will be liable for all expenses to which the corporation may be put for exchange, travelling expenses, legal assistance or legal proceedings or charges, fees pay- able in any court or public department, stamps, surveys, the collection of rents, auctioneers' and agents' charges, and any other services or expenses whatever which, in the opinion of the directors, may be necessary or expedient to be provided or incurred in the management of such estates." Form of ap- pointment as to expenses. And in the special forms of appointment the provisions as to expenses is somewhat as follows : — "And I declare that the aforesaid provision for the remuneration of the said corporation shall in no way prejudice or affect the right of the said corporation, as such executors or trustees, to reimburse themselves or to pay or discharge out of my estate all expenses incurred in or about the administration thereof, and that the said corporation shall be at full liberty to employ a solicitor, broker, or any other agent to transact all or any business required to be done in the premises (including the receipt (d) Moore v. Frowd, 3 My. & C. 45. Heard, 1837; Cotten- ham, L. 0., at p. 48. And see ante, p. 56, note (J). GENERAL OBSERVATIONS. 79 and payment of money), and shall be entitled to be allowed and be paid out of my estate, and in addition to their aforesaid remuneration, all charges and expenses so incurred." It is submitted that, although the terms of the provision as to the right to charge for expenses set out in the prospectus would include " any other services or expenses whatever which, in the opinion of the directors, may be necessary or expedient," it is the form of appointment alone which must be loo£ed at to determine the rights of the parties (e) , especially if the form of appointment is one that has been prepared and offered for use by the company itself. The form of appointment in common use would appear to do no more than secure for the paid trustee the right which the unpaid trustee has to a complete in- demnity for all expenses properly incurred ; the provision would appear to do no more than to provide that such expenses are not to come out of the remuneration. And (c) The common form of contract to act as executors and trustees under a will sometimes contains an agreement by the testator that he will insert in his will one of the forms of appointment set out in the prospectus, " with the other ancil- lary clauses for the benefit or protection of the corporation therein set out." The word "therein" here would seem to refer to the clauses in the form of appointment and not to general clauses in the prospectus. There would seem to be no difficulty in incorporating the terms of the prospectus in the remuneration clause in the form of appointment or in the formal contract, if it were done in clear and distinct terms. Where clear and distinct permission was taken to incur expenses "which, in the opinion of the directors, may be necessary or expedient," it would seem that such expenses must be properly incurred, fair and honest, and necessary. See post, p. 83. 80 CORPORATE EXECUTORS AND TRUSTEES. What the forms of ap- pointment in common use secure. Sorbin v. when it is said " expenses properly incurred," it is sub- mitted that that definition here means properly incurred by a company undertaking the duties of executors and trustees as a business. For if the unpaid executor is not allowed the charges of his solicitor for doing things which he ought strictly to do himself, it is not to be expected that a less stringent rule will be applied to the paid executor (/). " If a gentleman who is not an attorney is appointed executor, he undertakes the duties which, as executor, he has to perform, and he must not employ a solicitor to do all those ordinary things which an executor ought to do himself — as, for instance, to write an ordinary letter. If he employs a solicitor to do such matters he must pay him, but not out of the testator's estate. It is not abso- lutely necessary for an executor to go to the bank to transfer stock ; but he would not be entitled to charge for a power of attorney if he could, without inconvenience and expense, personally attend. When, therefore, a solicitor is appointed executor, and is authorised to charge for his professional services, the Court necessarily makes a distinction between those things which properly belong io (/) Harbin v. Darby, 28 Beav. 325. Heard, 1860; Sir John Eomilly, at p. 327. Weiss v. Bill, 3 My. & K. 26. Heard, 1834 ; Sir John Leach, M. E., at p. 27. Robinson v. Pett, supra; Re Chappie, 27 Oh. D. 584. Heard, 1884; Kay, J., at p. 587. Of. also, Lewin, ed. 1904, p. 770; Walker & Elgood, ed. 1905, p. 306. " Where a person is to he remu- nerated for what he does, he ought not to accept the employ- ment unless he has competent knowledge and siill in the business he is to transact, and may properly be held liable if he proves deficient in either : " Lord Blackburn in Speight v. Gaunt, 9 App. Oas. at p. 17; Euling Oases, vol. xxv. p. 311. Heard, 1883. GENERAL OBSERVATIONS. 81 Ms office of exeoutor and those which relate to his Remunera- charaoter as solicitor" (g). tlon- The above judgment may be adapted to say : When, therefore, a oompany is appointed as a remunerated exe- cutor or trustee, the Court will necessarily make a distinc- tion between those things properly within the scope of his remunerated employment and those things which are not. Even a remunerated executor, it may be assumed, may avail himself of the agency of third parties, such as solicitors, bankers, brokers, and others, if he does so from a moral necessity or in the regular course of business (h). Time and trouble would clearly seem to be within the Time and scope of remunerated employment, and would not be allowed for without specifio provision' (t), or unless the circumstances were peculiar (k). (ff) Sir John Bomilly in Harbin v. Darby, supra. In this case the taxing master held that the solicitor, entitled to charge for " professional services," could not claim as such, attendances, to pay premiums, to make transfers, on proctors, auctioneers, legatees and creditors. (h) Speight v. Gaunt, 9 App. Cas. 1, at p. 29. Lord Fitzgerald. Euling Cases, vol. xxv. p. 322. Heard, 1883. " It does not appear to me that the annuity of five guineas given to each trustee makes any difference. It is given to them as a recompense for the care and trouble which will attend the due execution of their office ; and if it he con- sistent with the due execution of their office that they should employ a collector to receive the rent, they will still be entitled to the annuity. A provident owner might well employ a collector to receive such rent; and the labour of such a collection cannot be imposed upon the trustees": Sir John Leach, V.-C, in Wilkinson v. Wilkinson, 2 S. & S. 237. Heard, 1825. (») Robinson v. Pett, supra. Willis v. Kibble, 1 Beav. 559. Heard, 1839 ; Lord Langdale, M. E. (*) Foster v. Ridley, 4 De G. J. & S. 452. Heard, 1864; A. 82 CORPORATE EXECUTORS AND TRUSTEES. Charges and Nevertheless, clauses have been drafted, notably one by Mr. WolBten- ^- r - Wolstenholme (/), which empower a solicitor-trustee holme's form, fa, receive his usual professional costs and charges on all business transacted by him, including all business of what- ever kind not strictly professional, but which might have been performed, or would necessarily have been performed, in person by a trustee not being a solicitor. And in another case, a testator by his will authorised any trustee thereof who might be a solicitor to make the usual pro- fessional " or other proper and reasonable charges for all business done and time expended in relation to the trusts of the will." Both forms have been upheld (m). Such forms, however, have been adversely criticised, as forms which no solicitor ought to put into a will drawn by himself, unless the testator has expressly instructed him to insert those very words (n) ; and, wherever it oan, the Court will subject such forms to an examination so ex- haustive as to exclude the charges wherever possible (o). Knight-Bruce and Turner, L. JJ. Weiss v. Dill, 3 My. & K. 26. Heard, 1834 ; Sir John Leach, M. E. The remunera- tion allowed under the Judicial Trustees Act, 1896, "must include all work done and personal outlay." Eudall and Greig, ed. 1904, p. 199. (1) Conveyancing Acts, 3rd ed. pt. 2, sect. 3, tit. " Forms in Settlements," p. 236. (m) In re Fish, Bennett v. Bennett, (1893) 2 Ch. 413, Lindley, Kay and Bowen, L. JJ. In this case the solicitor had a legacy of 2001., as well as permission to receive his usual costs and charges, including business not strictly pro- fessional. See also Re Ames, Ames v. Taylor, 25 Ch. D. 72. Heard, 1883 ; North, J. (n) Kay, J., in Re Chappie, Newton v. Chapman, 27 Ch. D. 584, at p. 587. Heard, 1884. (o) Re Chappie, supra; Clarkson v. Robinson, (1900) 2 Ch. 722, Buckley, J. GENERAL OBSERVATIONS. 83 Enough, perhaps, has been said to show how clear and Charges and distinct must be any contract that purports to allow a expenses ' remunerated company-executor or trustee to charge for anything as outside the scope of his remunerated employ- ment. It would be only misleading to make a conjectural enumeration of charges which the Court may in future think fit to allow or disallow. It would seem that the charges must be necessary (p), and they must be fair and honest (q). It is further the duty of an executor and trustee to inform his legatees and beneficiaries that they are entitled to have his charges investigated and taxed (r) ; and doubt- less, if the future experience of corporations is similar to that met with in the past by individuals, the taxing masters, with the assistance of the Court, will establish a series of useful decisions for general guidance (s) . (p) Re Brown, 4 Eq. Cas. 464. Heard, 1867 ; Lord Bomilly, M. E. (q) Kay, J., in In re Fish, Bennett v. Bennett, (1893) 2 Ch. 413, at p. 424. (r) Lambert v. Still, (1894) 1 Ch. 73 (0. A.), Lindley, Smith and Davey, L. JJ. In re Fish, supra. (s) The charges will be investigated at the risk, as to costs, of the person who challenges them (In re Fish, supra). A fixed scale of fees agreed to by the testator or settlor would be free from taxation. The remarks in the text refer solely to expenses and charges. g2 INDEX. Acceptance of executorship, 18 (5). of trusteeship, 54 (a;). Acts of company-executor before grant of administration, 18. Administration, granted to syndics, 5, 7, 8. bond, company sole surety to, 7. joint, allowed, though unusual, 11. conditions of grant to syndic, 11. revocation of grant, 13. durante absentia, 13. suggested form of grant to syndic, 9 (a), 14. acts of company-executor* before grant of, 18. by an attorney of an executor does not break chain of repre- sentation, 20. in cases of intestacy, 27. Administbatob, joint, allowed, 11. legal position of syndic as, 11. whether in his own right or as attorney, fully competent, 1 2. excludes executor, 13, 22 (k). durante minoritate of the executor of an executor, 19. Amalgamation and company-executor and trustee, 73. Appointment of corporate-executor. See Coepoeate-Execotoe. of corporate-trustee. See Corpoeate-Tbttstee. under Judicial Trustees Act, 30—32, 34 (g), 37. " Archbishop of Tuam " executor, 25 (t). 86 INDEX. Bishop and Dean and Chapter of Exeter executors, 6. Bodies Corporate Joint Tenancy Act, 1899... 31, 36 (o). Bond, form of creditor's, 21 (h). See Administration. Boyce, H. E,, evidence of, before committee on trusts administra- tion, 8. Breach of Trust, liability of corporations for, 15 (x), 37, 38, 42, 65. in placing legal estate in hands of no min ee, 61 (c). protection of company-executor and trustee for, 65. Judicial Trustees Act, 1896... 65— 72. judicious, 70(4). Business, carrying on, special trustees for, 40. Capacity, to act as executors and trustees, 1. ■what words give sufficient authority, 3. Chain of representation not broken by administration by an attorney, 20. Charges and Expenses, prospectus terms as to, 78. liable to taxation, 83. Citation to take probate, 18. Co-executors, one being a company, 22. Companies Acts, 1862— 1886... 2. Companies (Memorandum of Association) Act, 1890.. .1. Confirmation by the Court of powers to act as executors and trustees, 1. Consideration for contract for appointment and remuneration, 50. Contract, for remuneration, 45 — 59, 79 (e). for appointment of executor, 49. trustee, 54. for remuneration of trustee, 54. INDEX. 87 Contract — continued. for remuneration made an express equitable charge, 48. where testator not bound by, 49. in the nature of a security, duty on, 49 (i). consideration for, 50. to leave a will appointing company-exeoutor valid, 50. damages for breach of, 52, 57. terms of, must be clear to the client, 56. what does remuneration include ? 76, 83, 79 (e). Conversion of copyholds, 62. CONVEYANCE, by syndic or corporation, 63. all executors must concur in, 64. not so administrator and executor, 65. Copyholds, and tenure by company-executors and trustees, 61. conversion of, 62. Corporate-Executors, legal capacity to act, 1. opinion of text writers, 5. cannot take the oath, 5. form of oath, 8, 9. must act through a syndic, 5. Bishop and Dean and Chapter of Exeter, 7. surety under the administration bond, 7. no grant of probate direct to be expected, 10 (6). conditions of grant to syndic, 11. syndic administrator in his own right, 1 1. syndic excludes executor, 13, 22 (k). revocation of grant to syndic, 13, 14. suggested form of grant to syndic, 9(a), 14. liability of company for acts of syndic, 15, 16. devastavit by syndic, 15, 68. acts before grant of administration, 18. what acts show an intention to accept office, 18 (J), 54 (a;). obliged to procure grant of administration, 18. 'of an executor represents the first testator, 19. chain of representation not broken by syndic, 20. retainer by corporate-executor, 21, 45. co-executors, one being a company, 22. who have not proved, 23. 88 INDEX. Corpokate-Executobs — continued. reservation of grant to executors who do not prove, 24 (q). liability where they do not prove, 25. " secretary for the time being " as executor, 25 (t). as special executor, 27. jointly with executor for private papers, 75. in cases of intestacy, 27. as executors and trustees under will, 28. and Judicial Trustees Act, 1896... 30, 32, 65—72. debtor and creditor, 46, 53. and Land Transfer Act, 13, 23, 46, 47, 61. remuneration made an express equitable charge, 48. where testator not bound by his contract, 49. proposal form, 49. consideration for contract to act, 50. damages for breach of contract to appoint and act, 52, 57. validity of contract for remuneration, 55. need not prove the will to secure remuneration, 59. and holding of lands, copyholds, 61. conversion of copyholds, 62. can the syndic convey ? 63. conveyance by, 63 — 65. and amalgamation, 73. legacies which involve the duties of trustees, 74. what does remuneration include ? 76 — 83. remuneration implies competent knowledge and skill, 80 (/). time and trouble, 81. duty to inform legatees that charges are liable to taxation, 83. Cobpokate-Tbttstees, legal capacity to act, 1. and executors under wills, 28. as original trustee, 31. as new trustee to fill a vacancy in the office, 31. no objection to bequest of personal estate on trust to corpora- tion, 31 (a). is a company " a person " within the terms of express power ? 32, 33. as trustees under the Settled Land Acts, 32 (e). as sole trustee appointed under ordinary express power, 35. as trustees under statutory power, 32, 36 (m), 37. grounds of objection to, by the Court, 37. liability of, for breaches of trust, 15 (a;), 37, 38, 42, 65. INDEX. 89 OoRPOKATE-TiiTJSTEES— continued. and one of the officials of the company as co-trustees, 39. as protectors of trust property only, 40. carrying on business, special trustees for, 40. and custody of title deeds, 41. remuneration of, does it increase their liability ? 42. Statutes of Limitation, 44. appointment and remuneration of, 45 — 59. damages for breach of contract to appoint, 52. to act, 57. rights as creditors, 53. what acts constitute acceptance of a trust, 54 (x). validity of contract for remuneration, 55. retirement of, though appointed under contract, 57. and holding of land, copyholds, 61. Judicial Trustees Act, relief under, 65 — 72. and amalgamation, 73. legacies which involve the duties of trustees, 74. remuneration, what does it include ? 76 — 83. implies competent knowledge and skill, 80 (/). time and trouble, 81. duty to inform beneficiaries that charges liable to taxation, 83. CORPOBATIONS, capacity to act as executors and trustees, 1, 60. enabling clause in memorandum of association, 3. Royal Exchange Assurance, 3 (a). Trustees and Executors and Securities Insurance, 3 (b), 8. Ocean Accident and Guarantee Corporation, 4 (c). cannot take the oath of executors, 5. cannot be feoffees in trust to other's use, 5 (k). Bishop and Dean and Chapter of Exeter executors, 7. as sole surety under the administration bond, 7. no grant of probate direct to be expected, 10 (6). sealed copy of resolution of, appointing syndic required, 11. liability of, for acts of syndic, 15, 16. may act jointly with individuals, 24. " secretary for the time being " as executor, 25 (t). as executors and trustees under wills, 28. as single trustees not invalid, 35. and Judicial Trustees Act, 1896... 30, 32, 65, 72. immunity from certain liability for breaches of trust, 37. A. H 90 INDEX. Coepobations — continued. liability for misfeasances of servants or agents, 42. and holding of land, 60. copyholds, 60. directors of, trustees, 61 (c). Co-tettstees, one an official of the s company, 39. Custody of title deeds, 41. Debtoe and Ceeditoe, executor in position of creditor, 46, 53. Debtobs Act or 1869... 38. Devastavit by syndic, 15, 68. Ddsectoes are trustees, 61. Enabling Clause in memorandum of association, 3. Equitable Charge, remuneration made an express, 48. Exeoutoe of an executor represents the first testator, 19. And see Coepoeate-Executob. Intebpbetation Act, 1889 ... 32. Intestacy, corporation acting in cases of, 27. Joint Administbatoes allowed, though unusual, 11. Judicial Teustees Act, 1896... 30, 32. independent of any express power, 34 ( g). permits of the appointment of a company, 37. relief under, 43, 65—72. remuneration under, covers all work done and personal outlay, 81 (k). Land Tbansfeb Act, 1897. ..13, 23, 46, 47, 61. Legacies which involve the duties of trustees, 74. Lindley, M.E., "judicious breaches of trust," 70. Neglect to take out probate, 18 (b). INDEX. Oath of Executors, 5, 8. Oath of Syndic, 9. Objections to powers and disabilities of syndics, 17. Ocean Accident and Guarantee Corporation, 4 (c). Palmer, Company Law, liability of company for acts of agent, 15 (a;). " Person," meaning of term in express power, 32, 33. in statute, 32, 36 (m). Personal Property, no objection to corporate-trustee of, 63. Power to act as executors and trustees, 1. Private Papers, special executor for, 75. Probate, corporations cannot take grant directly, 5. administration granted to syndics, 5, 8. Act of 1857. ..13, 28. executor may be cited to take, 18. no action for neglect to take out, 18 (b). granted to one enures to the benefit of all, 23, 24 (p). reservation of grant to executors who do not prove, 24 (j). to " secretary for the time being," 25 (t). to " any two of my sons," " one of my sisters," 26. to " Archbishop of Tuam for the time being," 26. renunciation of, not in itself a disclaimer of the trusts, 29. not necessary to entitle executor to remuneration, 23, 59. Proposal Form in use by company-executors and trustees, 49 {h). Prospectus terms as to charges and expenses, 78. Eeal Estates Charges Acts, 1854 — 1877... 49, 53. Kemuneration, 45, 59. does not, in general, increase trustee's liability, 42. testator may lawfully covenant for, 45. creates a debt if contracted for, 45. and right of retainer, 47. as an express equitable charge, 48. of trustee under a settlement, 54. validity of contract for, 55. n 92 INDEX. Remuneration — continued. must be distinctly and clearly expressed, 56, 77. a legacy, if not contracted for, 58. not a testamentary expense, 58 (e). what does it include ? 76, 83. no reason for excluding expenses, 77. prospectus terms as to, 78. implies competent knowledge and skill, 80 (/). time and trouble, 81. must include all work done and personal outlay, 81 (%). Wolstenholme's form, 82. Renunciation of probate, not a disclaimer of the trusts, 29. Reservation of grant of probate to executors who do not prove, 24 (j). Retainer, by corporate-executor, 21. excluded by creditor's bond, 21. and Land Transfer Act, 46. as applicable to remuneration, 47, 59. Retirement of trustee appointed under a contract, 57. Revocation of authority of syndic, 13, 14. Royal Exchange Assurance Pbivate Act, 3 (a). Rifles guiding the Court in appointment of trustees, 37 (q). Sealed Copy of resolution appointing syndic required by Court, 11. "Secretary for the time being" executor, 25 (t). Settled Land Act, 1882... 32. Sole Thustee, corporation as, not invalid, 35. Statutes op Limitation, 44. Syndic, text writers on use of, 5. grants to, frequent, 8. oath of, 9. suggested modification, 9(a), 14. INDEX. 93 Syndic — continued. meaning of the term, 10. sealed copy of resolution of board appointing, to be with papers when grant is applied for, 11. legal position of syndic as administrator, 11. administrator in his own right, 11. fully competent to deal with the estate, 12. excludes executor, 13, 22 (k). revocation of grant to, 13, 14. devastavit by, 15, 68. liability of company for acts of, 15, 16. objection to powers and disabilities of, 17. where in loco executoria of an executor represents first testator, 19. does not break chain of representation, 20. can the syndic convey ? 63. Testamentary Expense, remuneration not, 58 (e). Title Deeds, custody of, 41. Trustee Act, 1893... 32, 34, 35, 37. is not alternative to an express power, 34 (g). and appointment of single trustee under express power, 35. retirement of remunerated trustee under contract, under, 57. Trustees, and executors under a will, 28. limited company may be, 31. meaning of the term in an express power, 32. in a statute, 36 (m). rules guiding Court in appointment of, 37 (j). duty to commit judicious breaches of trust, 70 (&). And see Corporate-Trustees. Trustees and Executors and Securities Insurance Corpora- tion, 3(6), 7. " Use and Benefit," effect of term, 12. Will, contract to make a will appointing company-executor, valid, 50. damages for breach of, 52. Wolstenholme's Form, charges and expenses, 82. l LONDON : PRINTED BY C. F. BOTOBTH, GREAT NEW 8TBEET, E.G. STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, LONDON: Annual Practice (The), 1906.— Edited by Thomas'- Snow, Barrister-at-Law; CHARLES BURNEY, a Master of the Supreme Court Land F. A. STRINGER, of the Central Office. Two Vols. Svo. Price, net, 25s. cloth. *»* A Thin/Paper Edition in One Vol. may be had, price, net, 25s. On Oxford India Paper, 3s.' 6d. extra. (Sow out of print.) 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