This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
By s. 14 of the T. Act, 1925 (which replaces s. 20 of the T. Act, 1893), it is provided that the receipt in writing of any trustee for any money, securities, or other personal property or effects, shall be a sufficient discharge for the same, and shall exonerate the person paying, transferring, or delivering the same from seeing to the application thereof. This provision (which only relates to receipts given after 1925 (t)) applies notwithstanding anything to the contrary in the instrument, if any, creating the trust; but the section does not (except where the trustee is a trust corporation) enable a sole trustee to give a valid receipt for the proceeds of sale or other capital money arising under a trust (u) for sale of land, or for capital money (x) arising under the S. L. Act, 1925 (y).
By s. 18 (2) (reproducing, in substance, s. 8 (1) of the Conv. Act, 1911), until the appointment of new trustees, the personal representatives or representative of a sole trustee, or, where there are several trustees, of the last surviving or continuing trustee, is capable of exercising any power or trust which was capable of being exercised by the sole or last surviving or continuing trustee; but this provision is subject (sub-s. (3)) to the restrictions imposed in regard to receipts by a sole trustee, not being a trust corporation.
(r) For the meaning of "trust corporation," see S- L. Act, 1925, s. 117 (1) (xxi), and the L. P. (Amend.) Act, 1926, ss. 3 and 8 (2). See also Wolst. & Cherry, 11th ed. vol. ii. pp. 282, 595.
(s) L. P. Act, 1925, s. 27 (2); S. L. Act, 1925, s. 94.
(t) As to receipts given between 1881 and 1894, the Conv. Act, 1881. s. 36, applies; and as to receipts between 1893 and 1926, the T. Act, 1893, applies.
(u) The words "disposition on" before the words "trust for sale" are omitted having regard to the L. P. (Amend.) Act, 1926, Sch. See Wolst. & Cherry, 11th ed. vol. ii. p. 366.
(x) See S. L. Act, 1925, s. 94.
(y) As to the right of a sole trustee of charity land to give a valid receipt, see Re Booth and Southend-on-sea, etc. Co., 1927, 1 Ch. 579.
By s. 95 of the S. L. Act, 1925, the trustees of a settlement have power to give a discharge for money paid to them or by their direction.
Apart from statute, where there are several trustees, all who have not effectually disclaimed (z) must join in the receipt (a); and payment to one only cannot safely be made (b). The inconvenience often arising from this state of the law has been removed by statute. By s. 23 (1) of the T. Act, 1925, trustees or personal representatives may, instead of acting personally, employ and pay an agent, whether a solicitor or other person, to do any act required to be done in the execution of the trust or the administration of the estate, including the receipt and payment of money; and by sub-s. (3), without prejudice to the general power of appointing agents, a trustee may appoint a solicitor to receive trust money by permitting him to have the custody of and to produce a deed containing any such receipt as is referred to in s. 69 of the L. P. Act, 1925, which takes the place of s. 56 of the Conv. Act, 1881 (c). An attorney of a trustee cannot, however, under a general power give such a receipt, though he can if expressly authorised (d). If a receipt is not given under the statutory provisions, the safest plan is to pay the money to the trustees' joint account at a bank. Where trustees have the estate and not a mere power of sale, the concurrence of a disclaiming trustee is unnecessary (e); and formerly this was so, even though the receipt clause specially referred to receipts by the trustees or the survivor, etc. (f); but a mere power of sale was more strictly construed (g). Under the legislation of 1925, however, a power to sell land, as distinguished from a trust for such purpose, is generally useless, excepting for the purpose of constituting S. L. Act trustees, or of enlarging the powers of a tenant for life (h).
All trustees must join in receipt.
(z) As to which see Lewin, 13th ed. p. 314.
(a) See Crewe v. Dickin, (1798) 4 Ves. 97; Sag. 14th ed. 664.
(b) See Lewin, 13th ed. p. 236.
(c) For the former law, see Re Bellamy and Metr. Board, (1883) 24 Ch. D. at p. 387; 52 L. J. Ch. 870; Re Flower and Metr. Board, (1884) 27 Ch. D. 592, 597; 53 L. J. Ch. 955.
(d) Re Hetling and Merton, 1893, 3 Ch. 269, 280; 62 L. J. Ch. 783.
(e) Crewe v. Dicken, (1798.) 4 Ves. 97, 100; Nicloson v. Wordsworth, (1818) 2 Sw. 365; Hawkins v. Kemp, (1803) 3 Ea. 410, 421, 434, 437.
When trust moneys have, in breach of trust, been invested upon mortgage, or in the purchase of real estate, and the trust appears upon the title, the trustees only do their duty in remedying the breach of trust and realising the investment, whether more or less than the sum expended is realised (i); and are therefore competent, without the concurrence of their cestuis que trust, by all available means to realise the security.
Investment in breach of trust, trustees can sell or release.
(f) Adams v. Taunton, (1820) 5 Mad. 435. [The following remarks taken by permission from an opinion given by Mr. Hayes, are of interest: "As a general rule, where the legal estate is vested in two or more as trustees for sale or other purposes, the trust survives and devolves with the estate, notwithstanding any loose expressions of a different tendency; which, in sound construction, ought to be rejected as informalities, or reconciled with a due regard to the nature of the property and other circumstances. In such cases (i.e., where the trust is created in respect of an estate vested in the trustees) it ought to be treated as wholly immaterial whether in point of form the trust is simply 'to sell, etc.,' or 'that they the said trustees do and shall sell, etc.,' or 'that they the said trustees or the survivor, etc.,' or 'that they the said trustees, their heirs or assigns, or their heirs, executors, administrators, or assigns,' etc, etc., and so as to the power to give discharges, etc. It must be confessed, however, that this plain rule has been lost sight of in some of the later cases; and that, in deciding upon the effect of such expressions, trusts have been confused with powers, to an extent which renders it very difficult to advise upon titles which involve questions of this nature. Another sound rule is that trustees have impliedly all the powers of giving discharges, etc, which are requisite to enable them to execute the trusts with effect. But this rule has also been much broken in upon by decisions which greatly embarrass its application in practice."]