CHAPTER 119. An Ordinance respecting Trustees and Executors and the Administration of Estates. THE (Chapter 11 of 1903, 2nd Session.) HE Lieutenant Governor by and with the advice and consent of the Legislative Assembly of the Territories enacts as follows: SHORT TITLE. 1. This Ordinance may be cited as "The Trustee Ordinance." Short title INTERPRETATION. 2. Unless the context otherwise requires the expression Interpretation "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 shall also include several joint trustees. INVESTMENTS. invest trust moneys in certain 3. Trustees having trust money in their hands which it is Trustees may their duty or which it is in their discretion to invest at interest shall be at liberty at their discretion to invest the same in any stock, debentures or securities of the Government of the Dominion of Canada or of any of the provinces of Canada or any debentures or securities the payment of which is guaranteed by the Government of the Dominion of Canada or of any province of Canada or in the debentures of any municipality or school district in the Territories; or in securities which are a first charge on land held in fee simple provided that such investments are in other respects reasonable and proper and such trustees shall also be at liberty at their discretion to call in any trust funds invested in any other securities than as aforesaid and to invest the same in any such stock, debentures, or securities aforesaid, and also from time to time at their discretion to vary any such investments as aforesaid, for others of the same nature; and any such moneys already invested in any such stock, debentures or securities as aforesaid shall be held and taken to have been lawfully and properly invested. (2) This section shall apply and extend to both present and This section to future trustees. apply to all trustees, etc. 4. The powers hereby conferred are in addition to the powers Additional conferred by the instrument, if any, creating the trust: powers given Proviso When trustee not chargeable for lending on insufficient security Trustees lending more than authorized amount Liability in case of change investment Provided that nothing herein contained shall authorize any trustee to do anything which he is in express terms forbidden to do or to omit to do anything which he is in express terms directed to do by the instrument creating the trust. 5. No trustee lending money upon the security of any property shall 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 by a person whom the trustee reasonably believed to be an able practical surveyor or valuer instructed and employed independently of any owner of the property whether such surveyor or valuer carried on business in the locality where the property is situate or elsewhere and that the amount of the loan does not exceed two-thirds of the value of the property as stated in the report and that the loan was made under the advice of the surveyor or valuer expressed in the report. (2) This section shall apply to a loan upon any property on which the trustee can lawfully lend and to transfers of existing securities as well as to new securities and to investments made as well before as after the passing of this Ordinance. 6. Where a trustee has improperly advanced trust money on a mortgage security which would at the time of the investment have been a proper investment in all respects for a less sum than was actually advanced thereon the security shall be deemed an authorized investment for such less sum and the trustee shall only be liable to make good the sum advanced in excess thereof with interest. (2) This section shall apply to investments made as well before as after the passing of this Ordinance. 7. No trustee shall be liable for breach of trust by reason of character of only of his continuing to hold an investment which has ceased to be an investment authorized by the instrument of trust or by the general law and this provision shall apply to cases arising before or after the passing of this Ordinance. Every trust instrument to contain clause for the indemnity and reimbursement of the trustees RIGHTS AND LIABILITIES OF TRUSTEES. 8. Every deed, will or other document creating a trust either be deemed to expressly or by implication shall without prejudice to the clauses actually contained therein be deemed to contain a clause in the words or to the effect following that is to say: "That the trustees or trustee for the time being of the said deed, will or other instrument shall be respectively chargeable only for such moneys, stocks, funds and securities as they shall respectively actually receive notwithstanding their respectively signing any receipt for the sake of conformity and shall be answerable and accountable only for their own acts, receipts, neglects or defaults and not for those of each other nor for any banker, broker or other person with whom any trust moneys or securities may be deposited; nor for the insufficiency or deficiency of any stocks, funds or securities nor for any other loss unless the same shall happen through their own wilful neglect or default respectively; and also that it shall be lawful for the trustees or trustee for the time being of the said deed, will or other instrument to reimburse themselves or himself or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers of the said deed, will or other instrument." of new 9. Where a trustee, either original or substituted and Appointment whether appointed by the court or otherwise, dies, or desires trustees to be discharged from, or refuses or becomes unfit or incapable to act in the trusts or powers in him reposed before the same have been fully discharged and performed it shall be lawful for the person or persons nominated for that purpose by the deed, will or other instrument creating the trust, if any, or if there be no such person, or no such person able and willing to act, then for the surviving or continuing trustees or trustee for the time being, or the acting executors or executor or administrators or administrator of the last surviving and continuing trustee, or for the last retiring trustee, by writing, to appoint any other person or persons to be a trustee or trustees in place of the trustee or trustees dying, or desiring to be discharged, or refusing, or becoming unfit, or incapable to act as aforesaid; and so often as any new trustee or trustees is or are so appointed as aforesaid all the trust property, if any, which for the time being is vested in the surviving or continuing trustees or trustee, or in the heirs, executors or administrators of any trustees or trustee, shall with all convenient speed be conveyed, assigned and transferred so that the same may be legally and effectually vested in such new trustee or trustees, either solely or jointly with the surviving or continuing trustees, or a surviving or continuing trustee as the case may require; and every new trustee to be appointed as aforesaid, as well before as after such conveyance, assignment or transfer as aforesaid, and also every trustee appointed by the court either before or after the passing of this Ordinance, shall have the same powers, authorities and discretions, and shall in all respects. act as if he had originally been nominated a trustee by the deed, will, or other instrument creating the trust. (2) On the appointment of a new trustee for the whole or any part of trust property (a) The number of trustees may be increased; and (b) A separate set of trustees may be appointed for any Retirement of trustee 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 any such part of the trust property; 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 (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 has 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) This section applies to trusts created either before or after the passing of this Ordinance. 10. Where there are more than two trustees, if one 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 is 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 to have retired from the trust and shall, by the deed, be discharged therefrom under this Ordinance 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) This section applies to trusts created either before or after the passing of this Ordinance. trust property trustees conveyance 11. Where an instrument by which a new trustee is appointed Vesting of to perform any trust contains a declaration by the appointor in new or to the effect that any estate or interest in any land subject continuing to the trust, or in any chattel so subject, or the right to recover without and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of such instrument become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment but subject to the provision of any Act or Ordinance respecting the registration of titles to lands, operate to vest in those persons as joint tenants and for the purposes of the trust, that estate, interest or right. (2) Where an instrument by which a retiring trustee is discharged under this Ordinance 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 but subject as aforesaid operate to vest in the continuing 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 any share, stock, annuity, or property only transferable in books kept by a company or other body or in manner prescribed by or under an Ordinance of the Legislative Assembly of the Territories. (4) For the purposes of registration of an instrument 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 Ordinance. PURCHASE AND SALE. trustee for 12. Where a trust for sale or a power of sale of property is Power of vested in a trustee he may sell or concur with any other person sale to sell by in selling all or any part of the property either subject to prior auction, etc. 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 |