COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4121, 5 June 1874, Page 3

COURT OF APPEAL.

Thursday, June 4. (Before the Chief Justice, Mr. Justice Johnston, Mr. Justice Gresson, and Mr. Justice Chapman.) IN THE MiVTTER OF THE PETITION OF WILLIAM LANGDOWN re THE TRUSTS OF SCOTT'S WILL. The Chief Justice delivered the following judgment: — In this case the testator, Daniel Scott, having real and personal property both in England and New Zealand, devised and bequeathed the whole, as a single fund, to his wife and two other trustees; one of whom, Mr. Langdown, is resident in New Zealand, and the other, Mr. Head, in England. Foreseeing that difficulty might arise in consequence of the distance between England and the Colony, the testator provided that the trusts and powers of his will may be carried into effect and exercised, (but during the life of his wife with her consent in writing) "as to any real and personal estace in England, by his executor or trustee, who for the time being should be residing in England, and as to his real and personal estate in New Zealand, by his executor or trustee who Bhould for the time being be residing in New Zealand." This arrangement being found inconvenient, the English trustee Mr. Read is willing to retire from the trusteeship of the New Zealand property only; and the Court is asked to appoint, under the powers of the Trustee Act 1830, a third trustee to act in New Zealand in his place. By virtue of the Conveyancing Ordinance the existing trustees are enabled to fill vacancies occurring; in the trusteeship in the ordinary way; but it is clear that this power does not warrant such an arrangement as is now contemplated. The aid of the Supreme Court, is therefore prayed under the powers of the Trustee Act 1850. Supposing the prayer of this petition {{ranted the trusteeship of the English and the New Zealand properties would be partially severed. Mr. Read would thenceforward be unable to interfere with the management of the New Zealand property, and the now trustee would be unable to interfere with the English property. Mr. Langdown, however, would still retain his powers over the English property. Mrs. Scott also, would be equally a trustee of both properties. A new trustee would be appointed without the occurrence of a vacancy in the trust as constituted by the wuHtnr, and (though this is not necessarily an objection) the total number of trustees would be augmented to four. It is impossible to state what is intended by the parties! withovit discovering that it, changes the testator's scheme for the management of his estate. Two partially distinct trusts are constituted of what the testator made a single trust. True, he declares that either his English or Colonial trustee, together with Mrs. Scott, may act in respect of property in England and New Zealand respectively without the necessary concurrence of the third trustee; but this clause does not appear to exclude the interference of the third trustee if disposed to act. In cases where a conveyance or lease was required, the third trustee must necessarily be resorted to for that purpose, the legal estate being vested jointly in the three ; and he has thus an opportunity of exercising a control over the transaction. Compliance with the petition would also render it necessary to have recourse to the Court on every future appointment of a new trustee ; for the proposed arrangement would make it impossible to apply the ordinary power of appointing new trustees which is implied in the will. Lord Cranworth's Act 23 and 24 "Vict. c. 145, does not extend fro the Colony, and there is no provision in force here analogous to section 27. No doubt what is proposed may bo more convenient. It would have been better if the testator had constituted distinct trusts of his English and Colonial properties. He lias not done so, and the statute does not appear to empower the Court to revise the provisions of his will. It might be very reasonable that the Court, which will never allow a trust to fail for want of a trustee, should also be enabled to improve the mere machinery of a trust where it turns out to be defective or practically inconvenient. But we do not find that so large a jurisdiction as this has ever been exercised in virtue of the term "expedient" used in the 32nd section of the Trustee Act 1850. The following passage in Mr. Lewin's work on the Lav/ of Trusts shews that in the opinion of that learned author such a. power dons not exist in the Court. "Where estates of a different description, or held under different title, or limited upon different trusts, have been vested in the same trustees by the sottlor, and there is a single power of appointment of new trustees in the usual form, it is conceived that there is no authority for afterwards dividing the trusts by the appointment of one set of new trustees to execute the treats of the one estate, and a distinct set of new trusteed to execute the trusts of the other ; and it has been held upon a petition under the Xrustoo Acts that the Court has no jurisdiction to make such an order." In regard to the case, lie Dennis's TVusts 3 W.'ll. 036, hero cited by Mr Lewin, and to another case, Re Dennis 12 W.R. 575, cited in the note to p. 70'j of the same work, it is proper to mention that wo have been unable to refer to them.

We may add, that the object in view of the parties might apparently be obtained, were the English trustee to execute a power of attorney in favor of Mrs. Scott and Mr. Langdown, enabling them, jointly of course and not severally, to execute, on his behalf, conveyances and leases of the'New Zealand property, for the sake of conformity merely. The instrument should contain a recital to the effect that Mr. Head was desirous of abstaining from interference with the exercise of the discretion of the other two trustees in reference to the New Zealand property. The execution of such an instrument would ordinarily be improper, but is justified by the special terms of the will. The English trustee will have to choose between taking some such course as this, continuing to act under the existing arrangement; and declining altogether to act further in the trusts of the will. The petition must therefore be dismissed. The Court adjourned sine die.