act as aforesaid, either solely or jointly with the other trustee or trustees, shall be thereupon, with all convenient speed, conveyed, assured, and transferred, in such sort and manner, and so as the same shall and may be legally and effectually vested in the surviving or continuing trustee or trustees of the same trust estates, monies, and premises respectively, and such new or other trustee or trustees jointly, or if there shall be no continuing trustee or trustees of the same trust estates, monies, and premises, then in such new trustee or trustees only, to the same uses and upon the same trusts as are hereinbefore declared of or concerning the same trust estates, monies, and premises respectively, the trustee or trustees whereof shall so die, or be desirous of being discharged, or refuse, decline, or become incapable to act as aforesaid, or to and upon such of them as shall or may be then subsisting and capable of taking effect; And that in order that such trust estates, monies, and premises may be legally and effectually conveyed to and vested in such new trustee or trustees, jointly or solely, as hereinbefore is mentioned, it shall and may be lawful to and for the person or persons nominating, substituting, or appointing such new trustee or trustees, under or by virtue of the powers or authorities hereinbefore for that purpose contained, by any writing or writings, to be by them respectively sealed and delivered in the presence of and to be attested by two or more credible witnesses, to revoke (a), determine, and make

(a) "All old powers of appointing new trustees of real estate merely express that the trustees may convey to new trustees, and do not give express powers of revocation and new appointment. Sometimes the trustees are made merely to appoint and convey' the lands to the uses, or the like; the words of the power being followed with the addition of the word appoint; and sometimes they are made to expressly revoke the uses of the settlement, and then to appoint to the new uses. Either mode will effectuate the intention.

"The power of appointing new trustees, now usually inserted in settlements, directs that, upon the appointment of a new trustee, all such conveyances shall be executed as will effectually vest the estates in the old and new trustees to the uses of the settlement, and declares that every new trustee, when appointed, shall have the same powers, &c. as if nominated in the deeds. Now it seems quite clear, that no more was originally intended by this power than that the trustees to preserve contin

void the uses, trusts, powers, and provisoes in and by these presents limited, expressed, and declared of or concerning

gent remainders should transfer the estate limited to them for that purpose (which is a vested remainder), or any other estate actually vested in them, to the new trustees, who would be enabled to exercise the different powers of sale and exchange, &c. created by the settlement under the express direction contained in the deed, that every new trustee should have the same powers as the old trustee had. But it has become usual to consider it essential that the new trustees should have a seisin to serve the uses in the same manner as the old trustees had, although it does not always happen that the trustees of the powers are the persons seised to the uses; nor is it at all necessary that they should be. To raise this new seisin two deeds are necessary; by the first, the uses of the settlement must be revoked, and the estate applied to a stranger in fee, and the old trustees must join in conveying the estate to him, and then the stranger must reconvey (which he may do by indorsement) to the uses of the settlement, in the same manner as if the new trustee's name had been inserted therein. The power of revocation and new appointment is considered to be clearly implied by the declaration in the power; and supposing no such power to exist, yet the estates to preserve contingent remainders are effectually vested in the old and new trustees by the actual conveyance. This mode assumes that there is a seisin in the releasees to serve the uses, and that that seisin is transferable, for otherwise it would not be necessary to defeat the old uses, and raise a new seisin in the old and new trustees to serve them. If it ever should become necessary to decide the point, there is little doubt but that it will be determined,

66

1st, That the power only meant that the estates actually vested in the trustees shall be transferred to the old and new trustees, which may be done by one deed operating under the Statute of Uses;

"2ndly, That they may then exercise the powers created by the settlement; and consequently,

"3rdly, That there is no seisin in the trustees to transfer, and therefore the revocation and appointment is nugatory and of no effect.

"Of course these observations do not apply to a case where the feesimple is vested in the trustees. In that case, clearly, one conveyance only is necessary. The old trustees may convey by lease and release to the new trustee, to the use of himself and the old trustees in fee upon the trusts.

"Admitting that the usual power of appointment requires the seisin (if there be any) in the old trustees to be vested in the new trustees, it will not be denied by the most strenuous supporters of this doctrine, that this ceremony is not necessary where the power expressly negatives that construction: the powers in the settlement, it is quite clear, may be executed by a person not having any seisin vested in him to serve the uses;

the said trust estates, monies, and premises, or any of them, or any part or parts thereof respectively; And by the same or any other writing or writings, sealed and delivered and attested as aforesaid, to limit, declare, direct, or appoint any use or uses, estate or estates, trust or trusts of the said trust estates, monies, and premises which it shall be thought necessary or expedient to limit, declare, direct, or appoint for the purpose of conveying and vesting such estates, monies, and premises to or in such new trustee or trustees, jointly or solely, as hereinbefore is mentioned; And it is hereby further agreed and declared between and by the said parties to these presents, that any such new trustee and trustees shall and may in all things act and assist in the management, carrying on, and execution of the trusts to which he or they shall be so appointed, in conjunction with the other then surviving or continuing trustee or trustees of the same trust estates, monies, and premises respectively, if there shall be any such continuing; if not, then by himself and themselves respectively, as fully and effectually, and with all the same power and powers, authority and authorities of consent, approbation, discretion, calling in, laying out and investing, giving and signing receipts, and effectual indemnifications and discharges to purchasers, mortgagees, and others, and all powers and authorities whatsoever, to all intents, effects, constructions, and purposes whatsoever, as if he or they had been originally in and by these presents nominated and appointed a trustee or trustees for the purposes for which a new trustee or trustees respectively shall be appointed trustee or

therefore, to prevent the necessity of this artificial, circuitous mode of appointing new trustees, it might be advisable to expressly declare in the deed creating the power, that upon the appointment of any new trustee the estate of the trustees to preserve contingent remainders shall be conveyed to the continuing and new trustees; and that every new trustee may act in the execution of the powers, without being invested with the seisin (if any) in the old trustees to serve the contingent or future uses. The usual power of revocation and new appointment introduced into this power of appointing new trustees is, however, to be preferred, as its operation is now generally known; a circumstance which is, in practice, of infinitely greater importance than the expense of an additional deed."—Sugd. Pow. ii. 527-529.

VOL. 11.

trustees; and as the trustee or trustees, in and by these presents named, his or their heirs, executors, or administrators, in or to whose place such new trustee or trustees shall respectively come and succeed, is or are enabled to do, or could or might have done under and by virtue of these presents, if then living and continuing to act in the trusts hereby reposed in them or him, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. Provided also, and it is hereby further agreed and declared between and by the said parties to these presents, that the said several trustees hereby nominated and appointed, or to be nominated and appointed by virtue of the proviso hereinbefore contained, and each and every of them shall be charged and chargeable respectively only for such monies as he or they shall respectively actually receive by virtue of the trusts hereby in them reposed, notwithstanding his or their or any of their giving or signing, or joining in giving or signing any receipt or receipts for the sake of conformity, and any one or more of them shall not be answerable or accountable for the other or others of them, but each and every of them only for his and their own acts, receipts, neglects, or defaults respectively; and that he, they, or any of them shall not be answerable or accountable for any banker, broker, or other person with whom or in whose hands or custody any part of the said trust monies shall or may be deposited or lodged for safe custody, or otherwise in the execution of the trusts hereinbefore mentioned; and that they or any of them shall not be answerable or accountable for the insufficiency or deficiency of any security or securities, stocks, or funds, in or upon which the said funds, or any part thereof, shall be placed out or invested, or for the defect of title of any lands to be purchased by them or any of them as aforesaid; nor for any other misfortune, loss, or damage which may happen in the execution of the aforesaid trusts, or in relation thereunto, except the same shall happen by or through their own wilful default respectively; And also that it shall and may be lawful to and for them the said trustees, in and by these presents named, and such future trustee or trustees to be appointed as hereinbefore is mentioned, and every or any of them, their and every or any of their heirs, executors, administrators,

and assigns, by and out of the monies which shall come to their respective hands by virtue of the trusts aforesaid, to retain and reimburse himself and themselves respectively, and also to allow to his and their co-trustee and co-trustees all costs, charges, damages, and expenses which they or any of them shall or may suffer, sustain, expend, disburse, be at or be put unto in or about the execution of the aforesaid trusts, or in relation thereunto.

CL. Provided always (a), and it is hereby further declared and agreed by and between the said parties to these presents, that in case all, any, or either of them the said trustees named and appointed by these presents, or any trustee or trustees to be appointed under this present provision, in their, any, or either of their place, shall depart this life, or desire to be discharged from the aforesaid trusts, or shall go to reside beyond seas, or shall neglect or refuse or become incapable to act in the said trusts before the said trusts shall be fully executed and performed, then and in that case, and as soon and as often as the same shall happen, it shall or may be lawful to and for the (b) said A. B. and

(a) If the donee of the power is to appoint additional trustees, the fol- To appoint lowing form should be used :

:

"Provided always, and it is hereby further declared, &c., that it shall or may be lawful to and for the said I. S. and E. his wife, during their joint lives, and to and for the said I. S. after the decease of the said E. his wife in his lifetime, to nominate and appoint any one or two fit person or persons to be a trustee or trustees of these presents, in addition to or in conjunction with the trustees hereby named, or who shall be appointed from time to time in their or either of their stead, under the provisions next hereinafter contained; And also, that in case both or either of them the said" &c.

(b) Or,

"the person or persons for the time being entitled to the estate of immediate freehold of and in the same hereditaments." When several persons or their representatives are invested with the power, then say :-" the said A. B., C. D., E. F., &c,

additional trus

tees.