PRECEDENT CONVEYANCE OF LAND HELD AS PERSONALTY ON THE APPOINTMENT OF NEW TRUSTEES. 1. Parties. 2. Recital of contemporaneous appointment of new trustees. 3. Witnesseth. XLIII. CONVEYANCE (BY INDORSEMENT on the original coNVEYANCE in TRUST) of LAND held as PERSONALTY on the appointment of new trustees (a). THIS INDENTURE made, &c., BETWEEN the withinnamed E. F., I. K., and L. M., and the above-named G. H. (b) [the continuing and retiring trustees], of the first part, N. O. of &c., and P. Q. of &c. [the new trustees], of the second part, and the said E. F., G. H., N. O., and P. Q. of the third part. WHEREAS by an indenture of date with but executed before the execution of these presents, and expressed to be made between the within-named A. B. and C. B. [appointors] of the first part, the said I. K. and L. M. of the second part, the said N. O. and P. Q. of the third part, and the said E. F., G. H., N. O., and P. Q. of the fourth part, after reciting that the said I. K. and L. M. are respectively unwilling to act any longer in the trusts of the withinrecited indenture of settlement, It is witnessed that in exercise of the power for that purpose by the same indenture given to the said A. B. and C. B., they have nominated the said N. O. and P. Q. to supply the place of the said I. K. and L. M. respectively for the purposes of the same indenture. NOW THIS INDENTURE WITNESSETH, that in pursuance of the direction in this behalf contained as is above-mentioned (c) in the (a) See in connection with this precedent, the two immediately preceding; and see infra, p.624, note. (b) The continuing trustee (G. H.) having been appointed under the power, and the retiring trustees (I. K. and L. M.) being original trustees, their names, when those of the continuing and retiring trustees occur together, precede that of G. H. (c) The direction to transfer the trust estate contained in the original settlement was set out in the conveyance of the real estate CONVEYANCE OF LAND HELD AS PERSONALTY ON THE APPOINTMENT OF NEW TRUStees. 4. Grant. 5. Parcels by reference. 6. Habendum. 7. To the use of the continuing upon the trust and new trustees, of the settle ment. said indenture of settlement, the said E. F., I. K., L. M., PRECEDENT XLIII. and G. H., do hereby grant unto the said N. O. and P. Q., and their heirs, ALL AND SINGULAR the messuages, lands, and hereditaments, by the within-written indenture appointed and granted, or expressed so to be, with their rights, easements, and appurtenances; AND ALL THE ESTATE and interest of them the said E. F., I. K., L. M., and G. H., in the same premises; TO HAVE AND TO HOLD the said premises hereinbefore expressed to be hereby granted unto the said N. O. and P. Q., and their heirs, To THE USE of the said E. F., G. H., N. O., and P. Q., their heirs and assigns, upon and for the trusts and purposes and with and subject to the powers and provisions applicable thereto by virtue of the said indenture of settlement. AND EACH of them the said E. F., I. K., L. M., and G. H., 8. Covenant by so far as relates to his own acts alone, doth hereby for continuing and himself, his heirs, executors and administrators, covenant with the said N. O. and P. Q., their heirs and assigns, that they the said covenanting parties, respectively, have not done or knowingly suffered or been party or privy to anything whereby the said premises herein before expressed to be hereby granted, or any part thereof, are, is, or may be impeached, affected, or incumbered in title, estate, or otherwise howsoever, or whereby they the said covenanting parties respectively, are in anywise hindered from granting the same premises or any part thereof in manner aforesaid. IN WITNESS, &c. made on the former appointment of a new trustee, which lastmentioned conveyance, as well as the conveyance in the text, was indorsed on the orginal conveyance upon trust. retiring trustees against incum brances. PRECEDENT APPOINTMENT OF NEW TRUSTEE OF DEED OF EVEN DATE WITH A SETTLEMENT. 1. Parties. Distinction as to mode of dealing with real estate purchased under a power in a personalty settlement, and with real estate forming part of the property originally brought into settlement. XLIV. APPOINTMENT (by indorsement) of a NEW TRUSTEE under a power in a DEED of EVEN DATE with a SETTLEMENT conveying FREEHOLDS and LEASEHOLDS upon trust for SALE, where part of the property had been sold (a). THIS INDENTURE made, &c., BETWEEN the withinnamed A. B. and C. B. his wife (formerly the within-named (a) When real estate has been bought under a power in a personalty settlement enabling the trust funds to be invested in land to be held as personal estate, the real estate is in general conveyed to the trustees upon the trusts of the settlement, and on an appointment of new trustees, it is conveyed so as to vest in the trustees by a separate deed, which may commonly with advantage be indorsed on the original conveyance. In this manner, if the real estate is sold by the trustees, the original, and any intermediate conveyances may be delivered to the purchaser, but the settlement itself, and any intervening appointments of new trustees, are also title-deeds to the land, and a covenant for their production will be required. The precedents immediately preceding relate to a transaction of that class. On the other hand, when real estate to be held as personalty forms part of the property originally brought into settlement, the course is to vest the real estate by a separate deed (usually of even date with the settlement) in trustees upon trust for sale, with a declaration of trust of the purchasemoney by reference to the settlement, and to provide for the suc cession of trustees for sale by a power in the subsidiary deed (unless the appointment of new trustees be now left to the statutory power). By this means the lands are made the subject of a separate and subsidiary trust, and when the lands are sold, the deed of even date with the settlement and appointments of new trustees of that deed may be delivered to the purchaser, and the settlement and any appointments of new trustees of the settlement not being title deeds to the land, no covenant for their production will be required. The precedent in the text is of an appointment of new trustees under a deed of trust for sale of even date with a settlement (of the description above mentioned), and as that deed properly applies only to such of the property as remains unsold, and the money received from the sale comes under the trusts of the PRECEDENT XLIV. NEW TRUSTEE OF DEED OF WITH A 2. Recital of the sale of part of the trust property; 3. —of one refused to act; 4. of the 5. Witnesseth C. D., spinster) [the appointors] of the first part, the within-named E. F., G. H., and I. K. [old trustees], of the second part, and L. M. of, &c. [new trustee], of the third APPOINTMENT OF part. [Recital of marriage, supra, p. 611]. AND WHEREAS portions of the freehold and leasehold hereditaments comprised in the within-written indenture have in pursuance of the trusts of the same indenture been recently sold and assured to the respective purchasers thereof; AND WHEREAs the said G. H. has refused to act any further (b) in the trusts reposed in him by the within-written indenture; trustee having AND WHEREAS the said A. B. and C. B. are desirous of appointing the said L. M. to be a trustee of the within- desire to appoint written indenture in the place of the said G. H. NOW the new trustee. THIS INDENTURE WITNESSETH that, &c. [ap- appointment [pointment of L. M. to be the new trustee in the place of the new of G. H., supra, p. 612]. AND THIS INDENTURE 6. Witnesseth. ALSO WITNESSETH, that in pursuance of the direction in this behalf contained in the within-written indenture, the said E. F., G. H., and I. K. do hereby grant unto the said L. M. and his heirs, ALL SUCH and so many and such 7. Grant of unpart and parts of the parcels of ground, messuages, and hereditaments by the within-written indenture expressed to be granted as remain unsold, with the appurtenances thereof; AND ALL THE ESTATE and interest of them the said E. F., G. H., and I. K., in the same premises; To HAVE AND TO HOLD all and singular the said hereditaments and premises herein before expressed to be hereby granted settlement, it is sufficient, in appointing the new trustees of the trust deed, to recite the sale of part of the property, without taking notice of the application of the purchase-money. See the next precedent, which is an appointment of a new trustee of the settlement comprising the purchase-money received from sales under the trust deed and other funds. See also the Precedents of a settlement and deed of even date of the above description, ante, Vol. iii., Settlements, pp. 857, 862. (b) As to the import of a "refusal to act," see Lewin, Trusts, 7th ed., p. 560. VOL. IV. 8 S trustee. sold freehold parcels. 8. Habendum to the use of the continuing and new trus tees. PRECEDENT XLIV. · APPOINTMENT OF NEW TRUSTEE OF DEED OF WITH A 9. Witnesseth. 10. Assignment of unsold leasehold parcels. 11. Habendum to the continuing As to assignment unto the said L. M. and his heirs, TO THE USE of the said said indenture of the day of (c) The continuing and retiring trustees are made to assign to the continuing and new trustees by virtue of the 21st section of Lord St. Leonards' Act (22 & 23 Vict. c. 35), enacting that "Any person shall have power to assign personal property now by law assignable, including chattels real, directly to himself and another person or other persons or corporation, by the like means as he might assign the same to another." Formerly the course would have been for the leaseholds to be assigned by the continuing and retiring trustees to a provisional trustee, and by him re-assigned to the continuing and new trustees. The enactment is confined to leaseholds and personalty, for the reason no doubt that the object can be effected in the case of freeholds by the machinery of the Statute of Uses. |