TRUSTEE

THE TRUSTEE ACT

L

ARRANGEMENT OF SECTIONS

1. Short title.

Znterpretation

2. Interpretation.

PART I. Znvestments

3. Authorized investments.
4. Discretion of trustees.
5. Application of preceding sections.
6. Liability of trustee.
7. Enlargement of express powers of investment.
8. Loans and investments by trustees not chargeable as breaches

9. Liability for loss by reason of improper investments.
of trust.

PART II. Various Powers and Duties of Trustees
Appointment of New Trustees

10. Power of appointing new trustees.
11. Retirement of trustee.
12. Vesting trust property in new or continuing trustees.

Purchase and Sale

13. Exercise of trusts and powers of sale.
14. Power to sell subject to depreciatory conditions.
15. Power to sell under Vendors and Purchasers Act.

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2 TRUSTEE

Various Powers and Liabilities

16. Power to authorize receipt of money by banker or solicitor.
17. Power to insure building.
18. Power of trustees of renewable leaseholds to renew.
19. Sections 17 and 18 not to authorize anything forbidden by trust

20. Receipts in writing of trustee sufficient discharge.
21. Power for executors and trustees to compound, etc.
22. Power of two or more trustees.
23. Exoneration of trustees in respect of certain powers of attorney.
24. Implied indemnity of trustees.

instrument.

PART Ill. Powers of the Court

Appointnient of New Trustees and Yesting Orders

25. Power of the Court to appoint new trustees.
26. Vesting order as to land.
27. Order as to contingent rights of unborn persons.
28. Vesting order in place of conveyance by an infant mortgagee.
29. Vesting order in plaG of conveyance by heir, etc., or personal

30. Vesting order consequential on judgment for sale or mortgage

31. Vesting order consequential on judgment for specific perfom-

32. Effect of vesting order.
33. Power to appoint person to convey.
34. Vesting orders as to stock and choses in action.
35. Persons entitled to apply for orders.
36. Applications to the Court to be by petition or summons.
37. Powers of new trustee appointed by court.
38. Power to charge costs on trust estate.
39. Trustees of charities.
40. Order made upon certain allegations to be conclusive evidence.

representative of mortgagee.

of land.

an-, etc.

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TRUSTEE 3

41. Trustee or executor may apply to the Court for an opinion.

42. As to form of application.
43. Power of the Court to authorize dealings with trust property.

advice. etc.

Relief for Breach of Trust

44. Power of the Court in case of a breach of trust.
45. Extent of relief for application of section 44.

Plea of Statute of Limitations

46. Statute of limitations may be pleaded by trustees.

Payment into court by Trustees

47. Payment into court by trustees.

Miscellaneous

48. Power to give judgment in absence of trustee.
49. Power to sanction sale of land or minerals separately.
50. Power to make beneficiary indemnify for breach of trust.
51. Meaning of “the Court”.

PART lV. Miscellaneous and Supplemental
52. Application to trustees under Settled Land Act of provisions as

53. Trust estates not affected by trustee becoming a convict.
54. Indemnity.

to appointment of trustee.

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TRUSTEE

THE TRUSTEE ACT

5

Cap. 393.

i [Ist January, 1897.1

1. This Act may be cited as the Trustee Act. Short title.

Interpretation

2. In this Act- Interpreta-
tion

“contingent right”, as applied to land, includes a. con-
tingent or executory interest, a possibility coupled
with an interest, whether the object of the gift or
limitation of the interest, or possibility is or is not
ascertained, also a right of entry, whether immediate
01 future, and whether vested or contingent;

“convey” and “conveyance” applied to any person
include the execution by that person of every
necessary or suitable assurance for conveying,
assigning, appointing, surrendering, or otherwise
transferring or disposing of land whereof he is seised
or possessed, or wherein he is entitled to a contingent
right, either for his whole estate or for any less
estate, together with the performance of all formalities
required by law to the validity of the conveyance;

“devisee” includes the heir of a devisee and the devisee of
an heir, and any person who may claim right by
devolution of title of a similar description;

“instrument” includes enactments of the United Kingdom
Parliament or of the Legislature of Jamaica;

“land” includes incorporeal as well as corporeal heredita-
ments, and any interest therein, and also an undivided
share of land;
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6 TRUSTEE

“mortgage” and “mortgagee” include and relate to every
estate and interest regarded in equity as merely a
security for money, and every person deriving title
under the original mortgagee;

“pay” and “payment” as applied in relation to stocks
and securities, and in connection with the expression
“into court” include the deposit or transfer of the
same in or into court;

“possessed” applies to receipt of income of, and to any
vested estate, less than a life estate, legal or equitable,
in possession or in expectancy in any land;

“property” includes real and personal property, and any
estate and interest in any property, real or personal,
and any debt, or any thing in action, and any other
right or interest, whether in possession or not;

“rights” includes estates and interests;
“securities” includes stocks, funds and shares;

“stock” includes fully paid-up shares; and so far as
relates to vesting orders made by the Court under this
Act, includes any fund, annuity, or security trans-
ferable in books kept by any company or society, or
by instrument of transfer either done or accompanied
by other formalities, and any share or interest
therein;

“transfer” in relation to stock, includes the performance
and exclusion of every deed, power of attorney, act
and thing on the part of the transferor to effect and
complete the title in the transferee;

“trust” does not include the duties incident to an estate
conveyed by way of mortgage; but with this exception
the expressions ‘‘trust’’ and “trustee” include
implied and constructive trusts, and cases where the

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TRUSTEE 7

trustee has a beneficial interest in the trust property,
and the duties incident to the office of personal
representative of a deceased person.

PART I. Investments
3. A trustee may, unless expressly forbidden by the Authorized

investments. instrument (if any) creating the trust, invest any trust
funds in his hands, whether at the time in a state of
investment or not, in manner following, that is to say-

(a) in any investment authorized by any Act of
Parliament of the United Kingdom;

(6) in any securities, the interest of which is for the
time guaranteed by any enactment of this Island
or the Government of th is Island;

(c) on real securities in this Island,
and may also from time to time vary any such investment.

4. Every power conferred by section 3, shall be exercised Discretion
Of t N S t W . according to the discretion of the trustee, but subject to

any consent required by the instrument, if any, creating
the trust with respect to the investment of the trust funds.

5. Sections 3 and 4 shall apply as well to trusts created Application
before as to trusts created after the first day of January, $=*
1897, and the powers thereby conferred mall be in addition
to the powers conferred by the instrument, if any, creating
the trust.

6. A trustee shall not be liable for breach of trust by Liabaityof
reason only of his continuing to hold an investment trustee.
authorized by the instrument of trust or by the general law.

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8 TRUSTEE

unless expressly forbidden by the instrument creating the
trust, may invest and shall be deemed to have always had
power to invest upon mortgage of property held for an
unexpired term of not less than two hundred years, and not
subject to any reservation of rent greater than ten cents
a year, or to any right of redemption, or to any conditions
for re-entry, except for non-payment of rent.

Enlargement 7. A trustee having power to invest in real securities
of express
powers of
investment.

Loans and
investments

I by trustees
not charge-
able as
breaches of
bust.

8.-(1) A trustee lending money on the security of any
property on which he can lawfully lend shall not be
chargeable with breach of trust by reason only of the
proportion borne by the amount of the loan to the value of
the property at the time when the loan was made, provided
that it appears to the Court that in making the loan the
trustee was acting upon a report as to the value of the
property made as hereinafter provided, and that the
amount of the loan does not exceed two equal third parts
of the value of the property as stated in such report, and
that the loan was made under the advice expressed in the
report. This section shall apply to a loan upon any
property of any tenure whether agricultural or house or
other property on which the trustee can lawfully lend:

Provided that the trustee shall have procured to be
made for him a report as to the value of such property-

(a) in the case of agricultural property by an
agriculturist; and

(b) in the case of other property, and property con-
sisting of buildings, apart from buildings on and
connected with agricultural property, of an able
practical builder, valuer, or other experienced
person,

such agriculturist, builder, valuer, or other experienced
person shall be instructed and employed independently of

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TRUSTEE :9

any owner of the property, and may or may not be a person
carrying on his business in the locality where the property
is situated.

(2) A trustee lending money on the security of any
leasehold property shall not be chargeable with breach of
trust only upon the ground that in making such loan he
dispensed either wholly or partly with the production or
investigation of the lessor’s title.

(3) A trustee shall not be chargeable with breach of
trust only upon the ground that in effecting the purchase
of or in lending money upon the security of any property
he has accepted a shorter title than the title which a
purchaser is, in the absence of a special contract, entitled
to require, if in the opinion of the Court the title accepted
be such as a person acting with prudence and caution would
have accepted.

9. Where a trustee improperly advances trust money Liabilityfor
on a mortgage security which would at the time of the
investment be a proper investment in all respects for a impropcrin-
smaller sum than is actually advanced thereon the am.uity
shall be deemed an authorized investment for the smaller
sum, and the trustee shall only be liable to make good the
sum advanced in excess thereof with interest.

vestments.

PART 11. Various Powers and Duties of Trustees

10.-(1) Where a trustee, either original or substituted, Power of
and whether appointed by a Court or otherwise, is dead, newtrustees.
or remains out of this Island for more than twelve months,
or desires to be discharged from all or any of the trusts or
powers reposed in or conferred on him, or refuses or is unfit
to act therein, or is incapable of acting therein, then the
person or persons nominated for the purpose of appointing

Appointment of New Trustt?es

appointing

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10 TRUSTEE

new trustees by the instrument, if any, creating the trust,
or if there is no other person, or no such person able and
willing to act, then the surviving or continuing trustees or
trustee for the time being, or the personal representatives
of the last surviving or continuing trustee, may, by
writing, appoint another person or other persons to be a
trustee or trustees in the place of the trustee dead,
remaining out of this Island, desiring to be discharged,
refusing, or being unfit or being incapable, as aforesaid.

(2) On the appointment of a new trustee for the

(a) the number of trustees may be increased, and

whole or any part of trust property-

(b) a separate set of trustees may be appointed for
any part of the trust property held on trusts
distinct from those relating to any other part or
parts of the trust property, notwithstanding that
no new trustees or trustee are or is to be
appointed for other parts of the trust property,
and any existing trustee may be appointed or
remain one of such separate set of trustees; or,
if only one trustee was originally appointed, then
one separate trustee may be so appointed for the
first mentioned part; and

(c) it shall not be obligatory to appoint more than
one new trustee where only one trustee was
originally appointed, or to fill up the original
number of trustees where more than two trustees
were originally appointed; but, except where only
one trustee was originally appointed, a trustee
shall not be discharged under this section from
his trust unless there will be at least two trustees
to perform the trust; and

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TRUSTEE 11

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(d) any assurance or thing requisite for vesting the
trust property, or any part thereof, jointly in the
persons who are the trustees, shall be executed
or done.

(3) Every new trustee so appointed, as well before
as after all the trust property becomes by law, or by
assurance, or otherwise, vested in him, shall have the
same powers, authorities, and discretions, and may in all
respects, act as if he had been originally appointed a
trustee by the instrument, if any, creating the trust.

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

(5 ) This section applies only if and as far as a
contrary intention is not expressed in the instrument, if
any, creating the trust, and shall have effect subject to the
terms of that instrument and to any provisions therein
contained.

(6) Every appointment made under this section
shall be recorded in the Record Office, or in the office of
the Registrar of Titles as to property registered under the
Registration of Titles Act of this Island.

11.-(1) m e r e there are more than two trustees, if one Retirement
of trustee. of them by deed declares that he is desirous of being

discharged from the trust, and if his co-trustees and such
other person, if any, as empowered to appoint trustees by
deed consent to the discharge of the trustee, and to the
vesting in the co-trustees alone of the trust property, then
the trustee desirous of being discharged shall be deemed

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12 TRUSTEE

to have retired from the trust, and shall, by the deed, be
discharged therefrom under this Act, without any new
trustee being appointed in his place.

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

(3) This section applies only if and as far as a
contrary intention is not expressed in the instrument, if
any, creating the trust, and shall have effect subject to
the terms of that instrument and to any provisions therein
contained.

(4) Every such deed or assurance made under this
section, and every order of court appointing a new
trustee, shall be recorded in the Record Office, or in thc
office of the Registrar of Titles as to property registered
under the Registration of Titles Act of this Island.

Vesting 12.-(1) Where a deed by which a new trustee is
propertyin appointed to perform any trust contains a declaration by
newor the appointor to the effect that any estate or interest in
trustees. any land subject to the trust, or in any chattel so subject,

or the right to recover and receive any debt or other thing
in action so subject, shall vest in the persons who by
virtue of the deed become and are the trustees for
performing the trust, that declaration shall, without any
conveyance or assignment, operate to vest in those persons,
as joint tenants, and for the purposes of the trust, that
estate, interest, or right.

(2) Where a deed by which a retiring trustee i s
discharged under this Act contains such a declaration as
is in this section mentioned by the retiring and continuing
trustees, and by the other person, if any, empowered to
appoint trustees, that declaration shall, without any
conveyance or assignment, operate to vest in the con-

trust

continuing

)

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TRUSTEE 13

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tinuing trustees alone, as joint tenants and for the
purposes of the trust, the estate, interest, or right to which
the declaration relates.

(3) This section does not -extend to land conveyed
by way of mortgage for securing money subject to the
trust, or to any such share, stock, annuity, or property as
is only transferable in books kept by a company or other
body, or in manner directed by or under any Statute of
Parliament of the Unitcd Kingdom or of this Island

(4) For purposes of registration of the deed in the
Record Office, or in the office of the Registrar of Titles,
the person or persons making the declaration shall be
deemed the conveying party or parties, and the conveyance
shall be deemed to be made by him or them under a power
conferred by this Act.

( 5 ) This section applies only to deeds executed after
the 30th day of Novembcr, 1889.

Purchase and Sale
13.-(1) Where a trust for Sale or a power of sale of Exerciseof

trusts and property is vested in a trustee, he may sell or concur with powers of
any other person in selling all or any part of the property, -10.
either subject to prior charges or not, and either together
or in lots, by public auction or by private contract, subject
to any such conditions respecting title or evidence of title
or other matter as the trustee thinks fit, with power to
vary any contract for sale, and to buy in at any auction,
or to rescind any contract for sale and to resell, without
being answerable for any loss.

(2) This section applies only if and as far as a
contrary intention is not expressed in the instrument
creating the trust or power, and shall have effect subject
to the terms of that instrument and to the provisions
therein contained.
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14 TRUSTEE

(3) This section applies only to a trust or power
created by an instrument coming into operation after the
thirtieth day of November, 1889.

Powertosell 14.-(1) No sale made by a trustee shall be impeached
depreciatory by any beneficiary upon the ground that any of the
conditions. conditions subject to which the sale was made may have

been unnecessarily depreciatory, unless it also appears
that the consideration for the sale was thereby rendered
inadequate.

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

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

subject to

Powa to 15. A trustee who is either a vendor or a purchaser
Vendonand may sell or buy without excluding the application of
hasem em section 3 of the Vendors and Purchasers Act which

provides rules for regulating obligations and rights of
vendors and purchasers.

sell under

Act.

Various Powers and Liabilities
Power to 16.-(1) A trustee may appoint a solicitor to be his
authorize receipt of agent to receive and give a discharge for any money or
m o w by valuable consideration or property receivable by the
solicitor. trustee under the trust, by permitting the solicitor to have

the custody of, and to produce, a deed containing any
such receipt as is referred to in section 57 of the
Conveyancing Act, which provides that a receipt for

banker or

TRUSTEE 15

consideration of money or securities shall be a sufficient
discharge; and a trustee shall not be chargeable with
breach of trust by reason only of his having made or
concurred in making any such appointment; and the
producing of any such deed by the solicitor shall have the
same validity and effect under the said section as if the
person appointing the solicitor had not been a trustee.

(2) A trustee may appoint a banker or solicitor to
be his agent to receive and give a discharge for any money
payable to the trustee under or by virtue of a policy of
assurance, by permitting the banker or solicitor to have
the custody of and to produce the policy of assurance with
a receipt signed by the trustee, and a trustee shall not
be chargeable with a breach of trust by reason only of
his having made or concurred in making any such
appointment.

(3) Nothing in this section shall exempt a trustee
from any liability which he would have incurred if this
Act had not been passed, in case he permits any such
money, valuable consideration, or property to remain in
the hands or under the control of the banker or solicitor
for a period longer than is reasonably necessary to enable
the banker or solicitor (as the case may be) to pay or
transfer the same to the trustee.

(4) Nothing in this section shall authorize a trustee
to do anything which he is in express terms forbidden to
do, or to omit anything which he is in express term
directed to do, by the instrument creating the trust.

17.-(1) A trustee may insure against loss or damage cows-
by fire any building or other insurable property to any bddiw. inaura
amount (including the amount of any insurance already
on foot) not exceeding three equal fourth parts of the
full value of such building or property, and pay the

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TRUSTEE

premiums for such insurance out of the income thereof or
out of the income of any other property subject to the same
trusts, without obtaining the consent of any person who
may be entitled wholly or partly to such income.

(2) This section does not apply to any building or
property which a trustee is bound forthwith to convey
absolutely to any beneficiary upon being requested to do
so.

Power of
t rus tas of
renewable
leaseholds
renew.

18.-(1) A tiustee of any leaseholds for lives or years
which are renemable from time to time, either under any

to covenant or contract, or by custom or usual practice, may,
if he thinks fit, and shall, if thereto required by any person
having any beneficial interest, present or future, or
contingent, in the leaseholds, use his best endeavours to
obtain from time to time a renewed lease of the same
hereditaments on the accustomed and reasonable terms,
and for that purpose may from time to time make or
concur in making a surrender of the lease for the time
being subsisting, and do all such other acts as are
requisite :

Provided that, where by the terms of the settlement or
will the person in possession for his life or other limited
interest is entitled to enjoy the same without obligation
to renew or to contribute to the expenses of renewal, this
section shall not apply, unless the consent in writing of
that person is obtained to the renewal on the part of the
trustees.

(2) If money is required to pay for the renewal, the
trustee affecting the renewal may pay the same out of
any izoney then in his hands in trust for the persons
beneficially interested in the lands to be comprised in the
renewed lease, and if he has not in his hands sufficient
money for the purpose, he may raise the money required

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TRUSTEE €7

by mortgage of the hereditaments to be comprised in the
renewed lease, or of any other hereditaments for the time
being subject to the uses or trusts to which those heredita-
ments are subject, and no person advancing money upon
a mortgage purporting to be under this power shall be
bound to see that the money is wanted, or that no more
is raised than is wanted for the purpose.

19. Nothing in sections 17 and 18 shall authorize any Sections 17
trustee to do anything which he is in express terms toauthorize
forbidden to do, or to omit to do anything which he is in gr%snby
express terms directed to do, by the instrument creating EAimtru-
the trust.

and I8 not

20. The receipt in writing of any trustee for any Receiptsin

payable, transferable, or deliverable to him under any ~ ~ ~ ; ~ .
trust or power shall be a sufficient discharge for the same,
and shall effectually exonerate the person paying,
transferring, or delivering the same from seeing to the
application or being answerable' for any loss or mis-
application thereof.

money, securities, or other personal property or effects writing trustee of

21.41) An executor or administrator may pay or allow Powerfor
any debt or claim on any evidence that he thinks a n d t m k s
sufficient. pound, etc.

executors

to com-

(2) An executor or administrator, or two or more
trustees, acting together, or a sole acting trustee where
by the instrument, if any, creating the trust a sole trustee
is authorized to execute the trusts and powers thereof,
may, if and as he or they may think fit, accept any
composition or any security, real or personal, for any debt
or for any property, real or personal, claimed, and may
allow any time for payment of any debt, and may
compromise, compound, abandon, submit to arbitration,

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18 TRUSTEE

or otherwise settle any debt, account, claim, or thing
whatever relating to the testator’s or intestate’s estate
or to the trust, and for any of those purposes may enter
into, give, execute, and do such agreements, instruments
of composition or arrangement, releases, and other things
as to him or them seem expedient, without being
responsible for any loss occasioned by any act or thing so
done by him or them in good faith.

(3) This section applies only if and as far as a
contrary intention is not expressed in the instrument, if
any, creating the trust, and shall have effect subject to
the terms of that instrument, and to the provisions therein
contained .

Power of

a-.
22.41) Where a power or trust is given to or vested

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

(2) This section applies only to trusts constituted
after or created by instruments coming into operation after
the thirtieth day of November, 1889.

two or more

Exoneration

inraw
Ofcertain

attorney.

23. A trustee acting or paying money in good faith
under or in pursuance of any power of attorney shall not
be liable for any such act or payment by reason of the
fact that at the time of the payment or act the person
who gave the power of attorney was dead or has done
some act to avoid the power, if this fact was not known
to the trustee at the time of his so acting or paying:

Provided that nothing in this section shall affect the
right of any person entitled to the money against the
person to whom the payment is made, and that the person

of trustees

powers of

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TRUSTEE 19

so entitled shall have the same remedy against the person
to whom the payment is made as he would have had
against the trustee.

24. A trustee shall, without prejudice to the provisions Implied
of the instrument, if any, creating the trust, be chargeable ~~~~~~.
only for money and securities actually received by him
notwithstanding his signing any receipt for the sake of
conformity, and shall be answerable and accountable only
for his own acts, receipts, neglects, or defaults, and not
for those of any other trustee, nor for any banker or other
person with whom any trust moneys or securities may be
deposited, nor for the insufficiency or deficiency of any
securities, nor for any other loss, unless the same happens
through his own wilful default; and may reimburse
himself, or pay or discharge out of the trust premises all
expenses incurred in or about the execution of his trust
or powers.

PART In. Powers of the Court

25.-(1) The Court may, whenever it is expedient to Powerofthe
Appointment of New Trustees and Vesting Orders

appoint a new trustee or new trustees, and it is found
inexpedient, difficult, or impracticable so to do without the trustees.
assistance of the Court, make an order for the appointment
of a new trustee or new trustees either in substitution for
or in addition to any existing trustee or trustees, or
although there is no existing trustee. In particular and
without prejudice to the generality of the foregoing
provision, the Court may make an order for the appoint-
ment of a new trustee in substitution for a trustee who is
convicted of felony, or is a bankrupt.

(2) An order under this section, and any con-
sequential vesting order or conveyance, shall not operate
further or otherwise as a discharge to any former or

court to

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20 TRUSTEE

continuing trustee than an appointment of new trustees
under any power for that purpose contained in any
instrument would have operated.

(3) Nothing in this section shall give power to
appoint an executor or administrator.

Vesting 26. In any of the following cases, namely-
order as to
land. (4 where the Court appoints or has appointed a new

trustee; and
where a trustee entitled to or possessed of any
land, or entitled to a contingent right therein,
either solely or jointly with any other person-

(i) is an infant; or
(ii) is out of the jurisdiction of the Court; or
(iii) cannot be found; and

where it is uncertain who was the survivor of
two or more trustees jointly entitled to or
possessed of any land; and
where, as to the last trustee known to have been
entitled to or possessed of any land, it is
uncertain whether he is living or dead; and
where there is no heir or personal representative
to a trustee who was entitled to or possessed of
land and has died intestate as to that land, or
where it is uncertain who is the heir or personal
representative or devisee of a trustee who was
entitled to or possessed of land and is dead; and
where a trustee jointly or solely entitled to or
possessed of any land, or entitled to a contingent
right therein, has been required, by or on behalf
of a person entitled to require a conveyance of
the land or a release of the right, to convey the

[The inclusion of this page is authorized by L.N. 480/1973]

TRUSTEE 21

land or to release the right, and has wilfully
refused or neglected to convey the land or release
the right for twenty-eight days after the date
of the requirement,

the Court may make an order (in this Act called a
vesting order) vesting the land in any such person in any
such manner and for any such estate as the Court may
direct, or releasing or disposing of the contingent right to
such person as the Court may direct :

Provided that-

(i) where the order is consequential on the appoint-
ment of a new trustee the land shall be vested
for such estate as the Court may direct in the
persons who on the appointment are the trustees;
and

(ii) where the order relates to a trustee entitled
jointly with another person, and such trustee is
out of the jurisdiction of the Court or cannot be
found, the land or right shall be vested in such
other person, either alone or with some other
person.

27. Where any land is subject to a contingent right Orderasto
contingent in an unborn person or class of unborn persons who, on riehtsof

coming into existence would, in respect thereof, become
entitled to or possessed of the lands on any trust, the
Supreme Court may make an order relieving the land from
the contingent right, or may make an order vesting in any
person the estate to or of which the unborn person or
class of unborn persons would, on coming into existence
be entitled or possessed in the land.

me inclwion of this page b authorized by L.N. 480119733

22 TRUSTEE

Vesting 28. Where any person entitled to or possessed of land,
placeof or entitled to a contingent right in land, by way of security
conveyance for money, is an infant, the Court may make an order
mortgagee. vesting or releasing or disposing of the land or right in

like manner as in the case of an infant trustee.

order in

by an infant

Vesting
order in
place of
conveyance
by heir, etc.,
or personal
representa-
tive of
mortgagee.

29. Where a mortgagee of land has died without having
entered into the possession or into the receipt of the rents
and profits thereof, and the money due in respect of the
mortgage has been paid to a person entitled to receive
the same, or that last-mentioned person consents to any
order for the reconveyance of the land, then the Court
may make an order vesting the land in such person or
persons in such manner and for such estate as the Court
may direct in any of the following cases, namely-

(a) where an heir or personal representative or
devisee of the mortgagee is out of the jurisdiction
of the Supreme Court or cannot be found; and

(b) where an heir or personal representative or
devisee of the mortgagee on demand made by or
on behalf of a person entitled to require a con-
veyance of the land has stated in writing that
he will not convey the same or does not convey
the same for the space of twenty-eight days next
after a proper deed for conveying the land has
been tendered to him by or on behalf of the person
so entitled; and

(c) where it is uncertain which of several devisees
of the mortgagee was the survivor; and

(d) where it is uncertain as to the survivor of several
devisees of the mortgagee or as to the heir or
personal representative of the mortgagee
whether he is living or dead; and

me inclusion of this page is authorized by L.N. 48011973)

TRUSTEE 23

(e) where there is no heir or personal representative
to a mortgagee who has died intestate as to the
land, or where the mortgagee has died and it is
uncertain who is his heir or personal representa-
tive or devisee.

30. Where any Court gives a judgment or makes an Vesting
order directing the sale or mortgage of any land, every sequential
person who is entitled to or possessed of the land, or ;b:':$z:"
entitled to a contingent right therein, as heir, or under :;;!gage0
the will of a deceased person for payment of whose debts
a judgment was given or order made, and is a party to
the action or proceeding in which the judgment or order
is given or made or is otherwise bound by the judgment
or order, shall be deemed to be so entitled or possessed,
as the case may be, as a trustee within the meaning of
this Act; and the Court may, if it thinks expedient, make
an order vesting the land or any part thereof for such
estate as that Court thinks fit in the purchaser or
mortgagee or in any other person.

order con-

31. Where a judgment is given for the specific perform- Vesting
ance of a contract concerning any land, or for the ~~$~~~~~
partition, or sale in lieu of partition, or exchange, of any ;:i;2z;t
land, or generally where any judgment is given for the performance,
conveyance of any land either in cases arising out of the
doctrine of election or otherwise, the Court may declare
that any of the parties to the action are trustees of the
land or any part thereof within the meaning of this Act,
or may declare that the interests of unborn persons who
might claim under any party to the action, or under the
will or voluntary settlement of any person deceased who
was during his lifetime a party to the contract or
transactions concerning which the judgment is given, are
the interests of persons who, on coming into existence,
would be trustees within the meaning of this Act, and

etc.

[The inclusion of this page is authorized by L.N. 480/1973]

24 TRUSTEE

thereupon the Court may make a vesting order relating
to the rights of those persons, born and unborn, as if they
had been trustees.

Effect of 32. A vesting order under any of the foregoing
provisions shall in the case of a vesting order consequen-
tial on the appointment of a new trustee, have the same
effect as if the persons who before the appointment were
the trustees (if any) had duly executed all proper con-
veyances of the land for such estate as the Court directs,
or if there is no such person, or no such person of full
capacity, then as if such person had existed and been of
full capacity and had duly executed all proper conveyances
of the land for such estate as the Court directs, and shall
in every other case have the same effect as if the trustee
or other person or description or class of persons to whose
rights or supposed rights the said provisions respectively
relate had been an ascertained and existing person of full
capacity, and had executed a conveyance or release to the
effect intended by the order.

vesting
order.

Power to

personto
convey.

33. In all cases where a vesting order can be made under
any of the foregoing provisions, the Court may, if it is
more convenient, appoint a person to convey the land or
-elease the contingent right, and a conveyance or release
3y that person in conformity with the order shall have the
iame effect as an order under the appropriate provision.

appoint

Vesting
orders as to
stock and
choses in
action.

3 4 . 4 1) In any of the following cases, namely-
(i) where the Court appoints or has appointed a

new trustee; and
(ii) where a trustee entitled alone or jointly with

another person to stock or to a chose in action-
(a) is an infant; or
(b) is out of the jurisdiction of the Court; or

me inclusion of this page is authorized by LN. 480119731

TRUSTEE 25

(c) cannot be found; or
(d) neglects or refuses to transfer stock or

receive the dividends or income thereof, or
to sue for or recover a chose in action, for
twenty-eight days next after a request in
writing has been made to him by the person
so entitled; or

(e) neglects or refuses to transfer stock or
receive the dividends or income thereof, or
to sue for or recover a chose in action for
twenty-eight days next after an order of
the Court for that purpose has been
served on him; or

(iii) where it is uncertain whether a trustee entitled
alone or jointly with another person to stock or
to a chose in action is alive or dead,

the Court may make an order vesting the right to transfer
or call for a transfer of stock, or to receive the dividends or
income thereof, or to sue for or recover a chose in action,
in any such person as the Court may appoint :

Provided that-
(a) where the order is consequential on the appoint-

ment by the Court of a new trustee, the right
shall be vested in the persons who, on the
appointment, are the trustees; and

(b) where the person whose right is dealt with by
the order was entitled jointly with another
person, the right shall be vested in that last-
mentioned person either alone or jointly with
any other person whom the Court may appoint.

(2) In all cases where a vesting order can be made
under this section, the Court may, if it is more convenient
appoint some proper person to make or join in making
the transfer.

[The inclusion of this page is authorized by L.N. 480/1973]

26 TRUSTEE

(3) The person in whom the right to transfer or call
for the transfer of any stock is vested by an order of the
Court under this Act, may transfer the stock to himself
or any other person, according to the order, and banks
and all other companies and persons shall obey every
order under this section according to its tenor.

(4) After notice in writing of an order under this
section it shall not be lawful for any bank or any other
company or person to transfer any stock to which the
order relates or to pay any dividends thereon except in
accordance with the order.

(5) The Court may make declarations and give
directions concerning the manner in which the right to
any stock or chose in action vested under the provisions
of this Act is to be exercised.

(6) The provisions of this Act as to vesting orders
shall apply to shares in ships registered under the Statutes
relating to merchant shipping as if they were stock.

Persons

applyfor
orden.

35.-(1) An order under this Act for the appointment
of a new trustee or concerning any land, stock, or chose
in action subject to a trust, may be made on the applica-
tion of any person beneficially interested in the land, stock,
or chose in action, whether under disability or not, or on
the application of any person duly appointed trustee thereof.

entitled to

(2) An order under this Act concerning any land,
stock or chose in action subject to a mortgage may be
made on the application of any person beneficially
interested in the equity of redemption, whether under
disability or not, or of any person interested in the
money secured by the mortgage.

me inclusion of this page is authorized by L.N. 480119131

TRUSTEE 21

\

36. Every application to the Court under this Act shall Applications
to the Court
to be by
petition summ s. or

be by petition or by summons at Chambers.

37. Every trustee appointed by a court of competent Powersof
jurisdiction shall, as well before as after the trust new appointedby trustee
property becomes by law, or by assurance, or otherwise, court.
vested in him, have the same powers, authorities and
discretions, and may in all respects act as if he had been
originally appointed a trustee by the instrument, if any,
creating the trust.

38. The Court may order the costs and expenses of and Powerto
charge costs

incident to any application for an order appointing a new on trust
trustee, or for a vesting order, or of and incident to any estate.
such order, or any conveyance or transfer in pursuance
thereof, to be paid or raised out of the land or personal
estate in respect whereof the same is made, or out of the
income thereof, or to be borne and paid in such manner
and by such persons as to the Court may seem just.

39. The powers conferred by this Act as to vesting Trusteesof
charities. orders may be exercised for vesting any land, stock, or

cbose in action in any trustee of a charity or society over
which the Court would have jurisdiction upon action duly
instituted, whether the appointment of the trustee was
made by instrument under a power or by the Court under
its general or statutory jurisdiction.

40. Where a vesting order is made as to any land under Ordermade
this Act, or under any law relating to lunacy in Jamaica, allegatians
founded on an allegation of the personal incapacity of a t&b;z-
trustee or mortgagee, or on an allegation that a trustee evidence.
01 the heir or personal representative or devisee of a
mortgagee is out of the jurisdiction of the Court or cannot
be found, or that it is uncertain which of several trustees
or which of several devisees of a mortgagee was the

upon certain

me inclusion of this page is authorized by L.N. 480/1973]

28 TRUSTEE

survivor, or whether the last trustee or the heir or
personal representative or last surviving devisee of a
mortgagee is living or dead, or on an allegation that any
trustee or mortgagee has died intestate without an heir
or has died and it is not known who is his heir or personal
representative or devisee, the fact that the order has been
so made shall be conclusive evidence of the matter so
alleged in any Court upon any question as to the validity
of the order; but this section shall not prevent the Court
from directing a reconveyance or the payment of costs
occasioned by any such order if improperly obtained.

k ~ o r

may apply
to the

opinion,

41. Any trustee, executor, or administrator shall be at
liberty, without the institution of a suit, to apply to the
Court for an opinion, advice, or direction on any question
respecting the management or administration of the trust
money or the assets of any testator or intestate, such
application to be served upon, or the hearing thereof to
be attended by all persons interested in such application,
or such of them as the Court shall think expedient; and
the trustee, executor, or administrator acting upon the
opinion, advice, or direction given by the Court shall be
deemed, so far as regards his own responsibility, to have
discharged his duty as such trustee, executor, or adminis-
trator in the subject matter of the said application:

executor

Court for an

advice, etc

Provided nevertheless, that this Act shall not extend
to indemnify any trustee, executor, or administrator in
respect of any act done in accordance with such opinion,
advice, or direction as aforesaid, if such trustee, executor,
or administrator shall have been guilty of any fraud or
wilful coxicealment or misrepresentation in obtaining such
opinion, advice,. or direction, and the costs of such
application as aforesaid shall be in the discretion of the
Court.

[The inclusion of this page is authorized by L.N. 480/1973]

i

TRUSTEE 29

42. Where any such application shall be made under ~ s t o f o m
of applica- the provisions of section 41, the Judge of the Court may tion.

require the petitioner to attend him by counsel either in
Chambers or in Court, where he deems it necessary
to have the assistance of counsel.

43.-(1) Where in the management or administration Power of
of any property vested in trustees, whether or not such
trustees are trustees of the settlement for the purposes of 22;gst
the Settled Land Act, any sale, lease, mortgage, prcpcrti.
surrender, release or other disposition or any purchase,
investment, acquisition, expenditure or other transactioii
is, in the opinion of the Court, expedient, but the same
cannot be effected by reason of the absence of any power
for that purpose vested in the trustees by the trust
instrument, if any, or by law, the Court may by order
confer upon the trustees either generally or in any
particular instance the necessary power for the purpose,
on such terms, and subject to such provisions and
conditions, if any, as the Court may think fit and may
direct in what manner any money authorized to be
expended, and the costs of any transaction, are to be paid
or borne as between capital and income.

(2) The Ccmrt may from time to time rescind or
vary any order Baade under this section or may make any
neworfurth&qpdg,

(3) An qpkation to the Comt under this section
may be made by the trustees or by any of them, or by
m y person bendkially interested under the trust.

Relief for Breach of Trust
44. If it appears to the Court that a trustee whether powerof

liabie for any breach of trust, but has acted honestly and Epd
reasonably, and ought fairly to be excused for the breach

the Court in appointed by the Court or not, is or may be personally case of a

includon of this pap is authorized by LN. 480/1973]

30 TR VSTEE

of trust, and for omitting to obtain the directions of the
Court in the matter in which he committed such breach
then the Court may relieve the trustee either wholly or
partly from personal liability for the same.

Extent of 45. The provisions of section 44 shall apply as well to
,,ppli,~ion trusts created before as to trusts created after the first day
of^^^^- of October, 1925, and the relief hereby proposed to be

given or conferred shall be in addition to such as may be
given or conferred by the law or instrument, if any, creating
tiie trust.

relief for

Plea of Statute of Limitations

Stat?:t.: cf 46.-(1) In any action or other proceeding against a
nz2vbe trustee or any person claiming through him, except where
pieddcd^ay the claim is founded upon any fraud or fraudulent breach

of trust to which the trustee was party or privy, or is
to recover trust property or the proceeds thereof still
retained by the trustee, or previously received by the
trustee, and converted to his use, the following provisions
shall apply-

(a) all rights and privileges conferred by any statute
of limitations shall be enjoyed in the like manner,
and to the like extent, as they would have been
enjoyed in such action or other proceeding if the
trustee or person claiming through him had not
been a trustee or person claiming through him;

(b) if the action or other proceeding is brought to
recover money or other property, and is one to
which no existing statute of limitations applies,
the trustee or person claiming through him shall
be entitled to the benefit of and be at liberty to
plead the lapse of time as a bar to such action
or other proceeding in the like manner, and to
the like extent, as if the claim had been against

!:mititIoar

trustees.

me inclusion of this page is authorized by L.N. 480/1?731

TRUSTEE 31

him in an action of debt for money had and
received, but so nevertheless that the statute
shall run against a married woman entitled in
possession for her separate use, whether with or
without a restraint upon anticipation, but shall
not begin to run against any beneficiary unless
and until the interest of such beneficiary shall be
an interest in possession.

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

(3) This section shall not deprive any executor or
administrator of any right or defence to which he is
entitled under any existing statute of limitations.

(4) In this section the expression “trustee” shall
be deemed to include an executor or administrator, and a
trustee whose trust arises by construction or implication
of law as well as an express trustee, and the person for
the time being executing the office of Administrator-
General of Jamaica as constituted by law.

Payment into Court by Trustees
47.-(1) Trustees, or the majority of trustees, having Payment

into court
in their hands or under their control money or securities by trustees.
belonging to a trust, may pay the same into court; and
the same shall, subject to rules of court, be dealt with
according to the orders of the Court.

(2) The receipt or certificate of the proper officer
shah be a sufEicient discharge to trustees for the money or
securities so paid into court.

p h e inclusion of this page is authorized by LN. 480/1973]

32 TRUSTEE

Power to
give judg-
ment in
absence of
trustee.

Power to
sanction
sale of land
or minerals
separately.

(3) Where any moneys or securities are vested in
any persons as trustees, and the majority are desirous of
paying the same into court, but the concurrence of the
other or others cannot be obtained, the Court may order
the payment into court to be made by the majority without
the concurrence of the other or others; and where any such
moneys or securities are deposited with any banker or
other depository, the Court may order payment or delivery
of the moneys or securities to the majority of the trustees
for the purpose of payment into court, and every transfer,
payment and delivery made in pursuance of any such
order shall be valid and take effect as if the same had
been made on the authority or by the act of all the persons
entitled to the moneys and securities so transferred, paid,
or delivered.

Miscellaneous
48. Where in any action the Court is satisfied that

diligent search has been made for any person, who in the
character of trustee is made a defendant in any action
to serve him with a process of the Court, and that he
cannot be found, the Court may hear and determine the
action and give judgment therein against that person in
his character of a trustee, as if he had been duly served,
or had entered an appearance in the action, and had also
appeared by his counsel and solicitor at the hearing, but
without prejudice to any interest he may have in the
matters in question in the action in any other character.

49.-(1) Where a trustee or other person is for the time
being authorized to dispose of land by way of sale,
exchange, partition or enfranchisement, the Court may
sanction his so disposing of the land with an exception or
reservation of any minerals, or so disposing of the
minerals, with or without the said rights or powers,
separately from the residue of the land.

me inclusion of this page is authorized by LN. 480/1973]

TRUSTEE 33

(2) Any such trustee or other person, with the said
sanction previously obtained, may unless forbidden by the
instrument creating the trust or direction, from time to
time, without any further application to the Court, so
dispose of any such land or minerals.

(3) Nothing in this section shall derogate from the
power which a trustee may have under the Settled Land
Act or otherwise.

50.-(1) Where a trustee commits a breach of trust at Power to
the instigation or request or with the consent in writing
of a beneficiary, the Court may, if it thinks fit, and E;~J$
notwithstanding that the beneficiary may be a married oftrust.
woman entitled for her separate use and restrained from
anticipation, make such order as to the Court seems just,
for impounding all or any part of the interest of the
beneficiary in the trust estate by way of indemnity to the
trustee or person claiming through him.

(2) This section shall apply to breaches of trust
committed as well before as after the passing of this Act,
but shall not apply so as to prejudice any question in an
action or other proceeding pending on the first day of
January, 1897.

51.-(1) In this Act “the Court” shall mean the Supreme Meaningof
“the Court”. Court and also a Resident Magistrate’s Court where that

Court has jurisdiction.

(2) The procedure in the Resident Magistrate’s
Court under this Act shall be in accordance with the
enactments and rules regulating the procedure of those
Courts.

[The inclusion of this page is authorized by L.N. 480119731

34 TRUSTEE

I PART IV. Miscellaneous and Supplemental
I Application 52.-(1) All the powers and provisions contained in this

Act with reference to the appointment of new trustees,
Land Act and the discharge and retirement of trustees, are to apply
ofprovislons to and include trustees for the purposes of the Settled
appoint- Land Act, whether appointed by the Court or by the
trustee. settlement, or under the provisions contained in the

settlement.
(2) This section applies and is to have effect with

respect to an appointment or a discharge and retirement
of trustees taking place before as well as after the first
day of January, 1897.

(3) This section is not to render invalid or
prejudice any appointment or any discharge and retire-
ment of trustees effected before the first day of January,
1897, .otherwise than under the provisions of the
Conveyancing Act.

to trustees
under

I

as to

ment of

Trustestates 53. Property vested in any person on any trust or by
bytrustee way of mortgage shall in case of that person being
becominga convict. sentenced to death or penal servitude by a court of

competent jurisdiction remain (subject to the provisions
hereinbefore contained) in the trustee or mortgagee, or
survive to his co-trustee or descend to his representative
as if he had not become a convict :

Provided, that this enactment shall not affect the title
to the property so far as relates to any beneficial interest
therein of any such trustee or mortgagee.

54. This Act and every order purporting to be made
under this Act shall be a complete indemnity to all
persons, for any acts done pursuant thereto; and it shall
not be necessary for any person to enquire concerning the
propriety of the order, or whether the Court by which it
was made had jurisdiction to make the same.

not affected

Indemnity.

me inclusion of this page is authorized by L.N. 480/1973]

c

t 41