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Frederick Prideaux.

Prideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) online

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in fee simple, subject to the right of redemption subsisting
therein under the said Indenture of Mortgage, on payment of tlie
said sum of £ and the interest thereon.

In witness, &c.

(e) The trusts of the mortgage debt are declared by reference to the per-
sonnlty settlement, and are not brought on to the title to the laud.



668



DISCHARGES OF TRUSTEES — GROUP B.



Parties.



State of Trust
Funds.



Desire of a
trustee to be
discharged.

Intention to

transfer

investments.



Desire to
retire.



Consent to
retirement.



No. IV.

DISCHARGE of a Trustee of a Will n-here the Trust
Property in rested in tlic Remaining Trustees (,/'), no
New Trustee being appointed.

THIS INDENTURE, made &c., Between R. T., of, &c. {retiiing
Trustee), of the one part, and C. T., of, &c., and C. C. T., of, &c.
(eontinning Trustees), of the other part.

{Recite, as in Section I., Precedent I. of Group B, pi. 639, sup.,
Will ofX. Y. appointing R. T., C. T., and C. C. T. to he executors
and trustees {defining them as the Trustees), and giving residue on
trust for sale, hut sai/ing at the end "But the said Will contained
no power of appointing new trustees thereof" {g). Deatli of
testator and probate. Realization and inrestment of residuary estate,
and assent to devises and bequests):

And whereas the residuary estate of the said testator is now
represented hy the investments mentioned in the Schedule
hereto standing in the joint names of the Trustees :

And whereas the said R. T. is desirous of being discharged
from the trusts of the recited Will :

And whereas it is intended that immediately after the

execution of these presents the [so much of the Stock

mentioned in the Schedule hereto shall be sold as shall be
necessary to satisfy the costs of and relating to the preparation
and execution of these presents or otherwise incurred in the
execution of the trusts of the recited Will shall be sold, and that
the balance of the said stock and the other (//)] investments
mentioned in the Schedule hereto shall be transferred into the
joint names of the said C. T. and C. C. T. alone :

NOW THIS INDENTURE WITNESSETH as follows :—

1. The said R. T. hereby declares that he is desirous of being
discharged from the trusts of the recited Will.

2. The said C. T. and C. C. T. hereby consent to the discharge
of the said R. T. from the trusts aforesaid, and to the vesting in
the said C. T. and C. C. T. alone of the trust property.

(/) See T. Act, 1893, ss. 11 and 12 (2), and notes to Prec. I. of this Group.
((/) If there is a power the donee must join.

(A) These words will be omitted where the costs are paid by the
beneficiaries.



OF A TRUSTEE OF A WILL. 669

3, All the parties hereto, &c. (vestinq (ledaration, if required, as Yf^«tmg

i ^ ' ' -^ declaration

/;/ Free. I. e>f tJiis Group).
In witness, &c.

The Schedule above referred to.

Section III,

EELEASES TO TEUSTEES EXECUTOES AND ADMINIS-

TEATOES ON THE WINDING UP OF TEUSTS.

Preliminary Note.

Executors and tiustees are entitled to have their accounts examined in what cases
and settled liefore they hand over the balance to the beneficiaries, and ti^ust^e°^should
it is iisual and proper in such case for the beneficiaries to execute a have a release,
formal deed of release. But if a trust is declared of a specified fund in
favour of a specified person, so that there are, in fact, no accounts to be
settled, and the trustee merely hands over the fund in its original state,
in strict accordance with the declared trust, he is not entitled to recpiire
a release under seal : Chadivlck v. lleatley (1845), 2 Coll. 137 ; King v.
Mullins (18.52), 1 Drew. 308.

Releases should be drawn so as to show on the face of the deed that How releases
the releasors are fully aware of all the ciicumstances connected with o^o'" ^° "®

•J drawn.

the subject of release, of their own rights and position, and of the
position of the intended releasees as to breaches of trust, liability, etc., and
they should also explicitly state the claims to be released. Releases
will be generally governed by the recitals, so that where the words of
the release are general, but the recitals refer only to a particular matter,
the release will be construed to relate only to the matter recited :
Ramsden v. Hylton (1751), 2 Ves. Sen. 304; Fritt v. Clay (1843),
6 Beav. 503.

The releasing parties generally execute a covenant of indemnity as Indemnity.
well as a release, but this is not essential except where there are other
persons than the releasors who can be interested in or may have claims
on the matter or property to which the release relates.

Releases extend to past acts, but indemnities may extend to the past
or future. Where a liability has been incurred {eg., the acceptance of
a mining lease) which cannot be discharged forthwith, a covenant for
indemnity ought to be given.

Unless there is privity of estate between executors and a lessor, the Setting aside
Court will not set aside assets to idemnify them against possible liabili- f"^i^""" ^
ties which may arise in respect of leases formerly held by their testator :
Re Nixon, 1904, 1 Ch. 638 ; 73 L. ,J. Ch. 446 ; see also Re King, 1907,
1 Ch. 72; 76 L.J. Ch. 44.

Where trust money is handed over by the trustees of one settlement Releases by
to the trustees of another settlement a release is usually given, but, it trustees.



670



RELEASES TO TRUSTEES OF SETTLEMENTS — GROUP A.



Cases in whieli
retiring
trustees are
entitled to a
release.



Stamp.



would seem, cannot be insisted upon: Re Cater's Tr^ists (1858), 25
Beav. 366. In any such case no indemnity can be required from
trustees who are giving a release or receipt. As to the powers of a
trustee to compromise, see T. Act, 1893, s. 21.

Retiring trustees are not, as a general rule, entitled to a release from
the beneficiaries, but sometimes it is expressly stipulated that they shall
have one, as where the dealings with the trust funds have not been
regular, and the irregularities have been comniitted at the instance of
the beneficiaries, who are sui juris, and see T. Act, 1893, s. 45. Again,
if, besides the appointment of new trustees, some alteration is made in
the trusts with tlie consent of the beneficiaries, such an arrangement
may properly be treated as a winding up of the old trust and the
creation of a new one, and it would be proper to give the retiring
trustees a release. If a trustee retires with a view to enable a breach
of trust to be committed, he may be held liable for the breach.

The stamp on releases of trustees is 10s.

On the other hand, releases on a sale or mortgage are liable to ad
valorem duty. As to whether a release amounts to a sale, see G. N.
Ry. Go. V. /. R. C, 1901, 1 K. B. 416 ; 70 L. J. K. B. 336.



Group A. — Eeleases to Trustees of Settlements.



Parties (/).



Release of
trustees
where one of
the bene-
ficiaries is an
infant.



Variations in
the case of an
infant.



No. I.

RELEASE to Trustees of a Personalty Settlement on
the final Distru^ution of the Trust Eunds. Variations
where a heneficiary is an infant.

THIS INDENTURE made, &c., Between A. B., of, &c. (a

heneficiari) irJio talies in dtfaidt of ap2)oint))ient and to irJiom an

(i) As an infant cannot bind himself by executing a release, he is generally
expressed to be made a party and a recital inserted to the effect that he is
an infant and that it is intended that he shall execute on attaining full age.
Before such execution he should obtain independent advice : Re Oarnett
(1885), 31 Ch. D. 1.

In such a case as above mentioned part of the funds must be retained and
the following clauses should be inserted : —

The ijarties hereto of the parts hereby jointly and

severally covenant with the Trustees and with each of them that
they the said covenanting parties and each of them will use

their best endeavours if and when the said attains full age

to induce him to execute these presents or a proper deed of
confirmation thereof :

Provided always, that these presents shall, notwithstanding



TO TRUSTEES OF A PERSONALTY SETTLEMENT. 671

advance lias been wade), of the 1st part, C. D., of, &c., and F. D.,
liis wife {F. D. is a heurtician/ irlio takes under an appointment
and has settled her sltare), of the 2nd part, M., of, &c., and N.,
of, Szc. (hereinafter called the Sub-Settlement Trustees) (Trustees
of F. Us Settlement), of the 3rd part, Z., of, &c. (hereinafter called
the Administrator) {tlie Administrator of E. B., a henejieiary u-Jto
took a vested interest in default of appointment and died intestate),
of the 4th part, and C. T., of, &c., and N. T., of, &c. (hereinafter
called the Settlement Trustees) {the Trustees of tlw Prineiped
Settlement), of the 5th part :

Wheeeas these presents are supplemental to an Indenture Reciuiof

■^ _ _ '- ^ Principal

(hereinafter called the Principal Indenture) dated the day Settlement.

of , and made between X, B. (since deceased) of the 1st

part, Jane H., Spinster (afterwards and hereinafter called Jane B.),
of the 2nd part, and D. T. (since deceased) and the said C. T. of
the 3rd part (being a Settlement made in consideration of the
marriage, shortly afterwards solemnised, between the said X. B.
and Jane B.), whereby certain investments and reversionary
interests (hereinafter, with the investments for the time being
representing the same, collectively called the Trust Fund) were
directed to be held by the parties thereto of the 3rd part Upon
trusts for the benefit of the said X. B. and Jane B. successively
during their lives, and after the death of both, as to capital and
income. In trust for the issue of the said marriage in such shares
and manner as the said X. B. and Jane B. by deed jointly or the
survivor of them by deed or will should appoint, And in default
of and subject to any such appointment, In trust for the children
or child of the said marriage who should attain the age of twenty-
one years, or, being daughters, marry under that age, and if
more than one in equal shares, with the usual hotchpot provision
and power of advancement, And the Principal Indenture contained
a power for the said X. B. and Jane B. during their joint lives
and for the survivor of them during his or her life to appoint a
new trustee or new trustees thereof :

And whereas there was issue of the said marriage three cbiidren of the
children and no more (namely), the said A. B., F. B,, and E. B. ''^'^^^^'^«*'"
(deceased), all of whom attained the age of twenty-one years :

that the said shall neglect or refuse on attaining full age

to execute these presents or such deed of confirmation, be binding
on the other parties hereto as from the date hereof.



672 RELEASES TO TRUSTEES OF SETTLEMENTS GROUP A.

Marriage of ^ND WHEREAS Oil the dav of — — the Said F. I), (theii F. B.)

appointment intermarried with the said C. v., and in contemplation of such

settimnent of marriage by a Deed Poll dated the day of under the

the appointed }iands aiid seals of the said X. B. and Jane B. one-third share of

snare.

the Trust Fund was (subject to the respective life interests of the
said X. B. and Jane B.) appointed to the said F. D. absolutely,
which share was by an Indenture (hereinafter called the Sub-
Settlement) dated the day of , and made between the

said C. D. of the 1st part, the said F, D. (then F. B., Spinster) of

the 2nd part, and the Sub-Settlement Trustees of the 3rd part,

assigned by the said F. D. to the Sub-Settlement Trustees upon

certain trusts for the benefit of herself, her husband and issue,

but no issue of such marriage has yet attained a vested interest

in the property thereby settled (/.) :

Death of one And WHEREAS the Said E. B. (who had attained the age of

attained a' tweuty-OHo years as aforesaid, and was accordingly defeasibly

unmaniecrrnci entitled to a one-tliird share (liable to decrease) in default of

intestate. appointment in the Trust Fund (/)) died on the day of

intestate without ever having been married :

Death of a And WHEREAS the Said D. T. died on the day of

ai^pohitment of ^^d by ail Indenture of Appointment dated the day

oFtheprlndpai ^^ ' ^^^^ made between the said X. B. and Jane B. of the

Settlement. 1st part, the Said C. T. of the 2nd part, the said N. T. of the
3rd part, and the Settlement Trustees of the 4tli part, the said
N. T. was appointed to be a trustee of the Principal Indenture
in the place of the said D. T. (deceased) and to act jointly with
the said C. T., and the investments then held on the trusts of
the Principal Indenture (the said reversionary interest having
fallen into possession) were thereupon transferred into the joint
names of the Settlement Trustees :

Advance to a And WHEREAS ill the year the sum of £ was, with

^°"' the consent in writing of the said X. B. and Jane B., advanced

under the power for that purpose contained in the Principal
Indenture to the said A. B. as part of his expectant share in
the Trust Fund :



(/i) If the children are of full age they should join.

[1) The donees of the power of appointment could have avoided this
intestacy by appointing the whole of the trust fund to the other two children
after the death of E. B.



TO TRUSTEES OF A PERSONALTY SETTLEMENT. 673

Axi) WHEREAS the said X. B. died on the day of and P'^^i^t'ii of

_ "■ . lather and.

the said Jane B. died on the day of without either of mothei'

them having executed any further appointment of any interest further
in the Trust Fund : ' '^l^'

And whereas on the • day of , 19 — , Letters of 'Appointment

among issue.

Administration to the estate of the said E. B. were granted out Letters of
of the Prohate Kegistry to the Administrator : Administration

^ J _ to the estate of

And whereas the first Schedule hereto contains particulars of the deceased
the Trust Fund at the date of the execution of the Principal Reference to
Indenture : first schedule

— orignial

And whereas the second Schedule hereto contains particulars investments.
of the various dealings with the capital of the Trust Fund and Reference to

° ^ _ _ _ second

particulars of the investments representing the same immedi- schedule («).
ately before the sale and transferthereof as hereinafter mentioned:

And whereas all income received in respect of the Trust Payment of
Fund during the lives of the said X. B. and Jane B. was duly deatii of"both
paid to them and the survivor of them in manner directed by the mother!^'"
Principal Indenture, and the income accruing during the lifetime
of the said Jane B., but received after her death, has been duly
accounted for to her legal personal representatives :

(m) If the father had survived the mother (who would generally be
restrained from anticipation), he might have taken out administration to the
estate of the deceased child, released his power of ai)pointment, and claimed
one-third of the fund subject to duties being paid.

(«) Where complicated accounts have been carefully kept, or it is not Recital of
desired to refer to all the dealings in the release, the following recital can be dealings with

, . - trust fund

substituted :— ^vhei-e com-

And whereas the parties hereto of the first four parts have accmmts have
examined the capital accounts kept by the Settlement Trustees, ^'^^^ '^'^p*-
and have fully approved of the dealings with the Trust Fund
as therein mentioned, and as evidence of such approval have
respectively signed all such accounts at the foot thereof.

Or where accounts have been made out for the pur^joses of the release the
following recital can be used : —

And whereas the Settlement Trustees have rendered to each of
the parties hereto of the first four parts accounts of the Trust
Fund and of the application, disposal and distribution thereof,
and each of such parties has examined and approved such
accounts, and as evidence of such approval has signed the same
at the foot thereof.

p. — VOL. II. 43



1674



RELEASES TO TRUSTEES OF SETTLEMENTS — GROUP A.



As to income
accruing after
the death of
the mother.

[Sale of stock
for payment of
duties and

costs.]



Apportion-
ment and
transfer of
Trust Fund.



Agreement for
release (2).



Duties.



Succession
dvity between
husband and
wife.



Duties on
death of
deceased
child.



Breaches of
trust.



And whereas the Settlement Trustees have duly accounted for
all income accruing since the death of the said Jane B., as the
Ijarties hereto of the first four parts herehy acknowledge :

[And avhereas the Settlement Trustees have with the approval
of the other parties hereto sold the investment numhered — in'
the second Schedule hereto, and have out of the net proceeds

applied the sum of J6 in payment of the duties payahle on

the deaths of the said X. B. (0), Jane B., or either of them, and

have paid the sum of i, in respect of the costs of and

incidental to the preparation and execution of these presents
and of the transfers hereinafter mentioned, and have applied the
balance of the said proceeds of sale in manner appearing in the
third Schedule hereto (;?) :]

And whereas the Settlement Trustees have with the approval
of the other parties hereto apportioned, paid and transferred the
balance of the Trust Fund (after payment of duties and costs)
in manner appearing in the third Schedule hereto, and have in
such distribution made the necessary deductions in respect of the
sum of M advanced to the said A. B. as aforesaid :

And whereas, the parties hereto of the first four parts being
satisfied with all matters and things relating to the execution of
the trusts of the Principal Indenture, it was agreed that on such
payments and transfers being made as aforesaid such release

((') It would seem that estate duty was payable on the death of X. B. ia
respect of pi'operty settled by him, bixt that no dutj' would be payable on
the property (if any) settled by Jane B., the survivor, until her death,
whether she gave her husband the first life interest in her property or not :
Fin. Act, 1894, s. 21 (5).

Succession duty is now made jiayable as between husband and wife :
Fin. (1909-10) Act, 1910, s. aS (2).

( p) It is generally more convenient to omit this recital, bringing the capital
account up to date and showing therein the payment of the duties and
costs. With regard to the estate duty payable on the share of E. B., the
deceased child, the personal representatives are accountable for such duty on
all property of which the deceased was at the time of his death comj)etent to
dispose: Fin. Act, 1894, ss. 8 (3) and 2 (1) (a). On E. B.'s death he had a
vested reversionary share liable to be divested by an appointment, and
s. 2 (1) (a) includes fi-ee personalty in reversion, see Austen-Cartmell,
4th ed., 12. Hence, it would seem that the administrator is the proper
person to pay the duty and not the settlement trustees. S. 8 (4) only makes
trustees accountable where the personal representative is not.

(7) If any breaches of trust are known to have occurred they should be
expressly stated and referred to as such.



TO TRUSTEES OF A PERSONALTY SETTLEMENT. 675

and covenants for indemnity should be given as are hereinafter
contained :

NOW THIS INDENTUEE WITNESSETH as follows :—

1. In pursuance of the said agreement and in consideration of Release,
the several sums and investments paid or transferred to them as
aforesaid and of the premises, the parties hereto of the first

four parts, according to their several respective rights, and
interests, do and each of them doth hereby release and discharge
the Settlement Trustees and each of them and the estates and
effects of each of them, and also the estate and effects of the said
D. T. (deceased), from all the investments and money mentioned
in the first, second and third Schedules hereto, and from all
other (if any) the investments and money received or which ought
to have been received in respect of the reversionary interests
assigned by the Principal Indenture, and from all other (if any)
the investments or money held upon the trusts of that Indenture
and from all income thereof, and from all proceedings, costs,
claims and demands in respect thereof or in respect of any sale,
investment, receipt, payment, breach of trust, act, deed, matter
or thing whatsoever and wheresoever, whether hereinbefore or in
the Schedules hereto mentioned or referred to or not, ever made,
done, executed, omitted or neglected in the execution of the
trusts of the Principal Indenture, or otherwise howsoever in
relation to the premises (r).

2. In further pursuance of the said agreement and in con- Covenant for
sideration of the premises, the said A. B., C. D., and F. D. hereby ''''^^''''''^^' ^'^■
jointly and severally covenant with the Settlement Trustees and

with each of them that they, the said covenanting parties and
each of them and their respective estates and effects, will from
time to time and at all times hereafter save harmless and keep
indemnified the Settlement Trustees and each of them and
their respective estates and effects, and also the estate and effects



(?•) This clause can be readily adapted to a release to term trustees on Release to
payment of the money secured by the term. The recitals will show (1) the ^'^^^ trustees,
creation of the term ; (2) the beneficiaries under the term, e.g., the number
of children or issue who take under the portions term, and the devolution of
their interests ; (3) the instrument (if any) under which the money was
raised ; and (4) the payment off of all the beneficiaries under the term.

(s) This covenant does not attract further stamp duty. The sub-settle-
ment trustees and the administrator do not of course join in this covenant.

43—2



076 RELEA.SES TO TRUSTEES OF SETTLEMENTS — GROUP A.

of the said I). T. (deceased), from and against all proceedings,
costs, claims and demands, losses, charges, damages and
expenses which they or either of them, or the heirs, executors,
administrators, estates or effects of them or either of them, or
the estate and effects of the said D. T. (deceased), may sustain,
incur or pay by reason of any sale, investment, receipt, pay-
ment, breach of trust, act, deed, matter or thing whatsoever or
wheresoever, whether hereinbefore or in the Schedules hereto
mentioned or referred to or not, ever made, done, executed,
omitted or neglected in the execution of the trusts of the
Principal Indenture, or otherwise howsoever in relation to or
affecting the 'premises.
Acknowiedg- 3. The Sub-Settlemeut Trustees hereby acknowledge the right

to^prodiicfion. of the Settlement Trustees to production of the Sub-Settlement
and to delivery of copies thereof.
In witness, &c.

The Fikst Schedule above referred to.

Particulars of investments and reversionary interest as
originally settled by the Principal Indenture.

{If there is a HushaiuVs and ]Jlfe's Trust Fund, divide into tiro
jMrts.)

The Second Schedule above referred to.

Particulars of dealings with the Trust Fund.

{This ivill contain a Debtor and Creditor Accotoit brought up to
date, and Kill show hy a statement at the end the present state of the
Trust Fund appUecdde for distriliution after panment of duty and
costs.)

The Third Schedule above referred to.
Particulars of the distribution of the Trust Fund.

First Part.
Cash and investments transferred to the said A. B.

Second Part.
Cash and investments transferred to the Sub- Settlement
Trustees.

Third Part.
Cash and investments transferred to the Adminietrafor.



TO TRUSTEES OF A REALTY SETTLEMENT. G77



No. 11.

RELEASE to Trustees of a Realty Settlement iclicn' tlie
entail lias been barred.

THIS INDENTURE, made, Sec, Between A. B., of, .Ic. {tenant Parties.
in fee simple in ])ossession), of the one part, and C. T., of. Sec,
and C. C. T., of, &c. (hereinafter called the Trustees), of the
other part :

Whereas these presents are supplemental to an Indenture Recital of
(heremafter called the Principal Indenture) dated, S:c., and made, Dlsenunhig"'
&c. (being a Settlement of certain freehold, copyhold and lease- . :^^^^™[^^^j^

hold hereditaments in the Counties of and certain capital a. b. is seised

money for the purposes of the Settled Land Acts, 1882 to 1890, simple (O-
and chattels settled to devolve as heirlooms with the said free-
hold hereditaments), and are also supplemental to the several
Indentures of Appointment of New Trustees and other documents
mentioned in the first Schedule hereto and to an Indenture



Online LibraryFrederick PrideauxPrideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) → online text (page 80 of 138)