Trustee Act 1956

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4. Authorised investments
5. Purchase of redeemable stocks at a premium or discount
6. Trustee carrying on business may invest in shares in cooperative enterprises
7. Discretion of trustees
8. Power to retain investment which has ceased to be authorised
9. Investment in bearer securities
10. Loans and investments by trustees not chargeable as breaches of trust
11. Liability for loss by reason of improper investment
12. Powers in relation to company securities
13. Power to pay calls

14. Powers to sell, exchange, partition, postpone, lease, purchase, etc.
15. Miscellaneous powers in respect of property
16. Power of trustee for sale to sell by auction, etc., or before date specified
17. Power to sell property on terms
18. Power to sell subject to depreciatory conditions
19. Power of trustees to give receipts
20. Power to compound liabilities
21. Power to raise money by sale or mortgage
22. Protection to purchasers and mortgagees dealing with trustees
23. Devolution of powers or trusts
24. Power to insure
25. Application of insurance money where policy kept up under any trust, power, or obligation
26. Deposit of documents for safe custody
27. Reversionary interests
28. Valuations
29. Power to employ agents
30. Power to concur with others
31. Power to delegate trusts
32. Power to carry on business
33. Power to convert business into a company

34. Protection against liability in respect of rents and covenants
35. Protection against creditors by means of advertisements
36. Protection in regard to notice
37. Exoneration of trustees in respect of certain powers of attorney
38. Implied indemnity of trustees
39. Protection of trustee who pays trust money to bankrupt in good faith and without knowledge of bankruptcy.
39 A .Protection of trustee in handing over chattels to life tenant

40. Power to apply income for maintenance, etc., and to accumulate surplus income during a minority
41. Power to apply capital for maintenance, etc.
42. Protective trusts

43. Power of appointing new trustees
44. Evidence as to a vacancy in a trust
45. Retirement of trustee
46. Discharge of trustee with assistance of Court or Registrar
47. Vesting of trust property in new or continuing trustees
48. Corporations acting as trustees
49. Advisory trustees may be appointed to assist responsible trustee
50. Custodian trustees

52. Vesting orders of land
53. Orders as to contingent rights of unborn persons
54. Vesting order in place of conveyance by infant mortgagee
55. Vesting order consequential on order for sale or mortgage of land
56. Vesting order consequential on judgment for specific performance
57. Effect of Vesting order
58. Power to appoint person to convey
59. Vesting orders as to stock and things in action
60. Vesting orders in respect of shares in ships and industrial property
61. Vesting orders of charity property
62. Orders made upon certain allegations to be conclusive evidence
63. Orders liable to stamp duty

64. Power of Court to authorise dealings with trust property and variations of trust
65. Power of Court to direct sale or lease
66. Right of trustee to apply to Court for directions
67. Persons entitled to apply to Court
68. Applications to Court to review acts and decisions of trustee
69. Protection of trustee while acting under direction of Court
70. Powers of Court to give judgment in absence of a trustee
71. Power of Court to charge costs on trust estate
72. Commissions
73. Power to relieve trustee from personal liability
74. Power to make beneficiary indemnify for breach of trust
75 Barring of claims
76. Distribution of shares of missing beneficiaries

77. Payment by trustees to Crown
78. Disposal of funds paid to Crown
79. Orders in respect of funds paid to Crown

80. Indemnity to banks and others
81. Operation on bank account of trustees
82. Inclusion of non-charitable and invalid purposes not to invalidate a trust
83. Special rules as to apportionment on purchase, sale, or transfer in certain cases
83A. Examination of accounts of trust estates administered by trustee corporations
83B. Audit of other trust estates
84. Costs and testamentary expenses to be payable out of capital of settled residuary estate of deceased
85. Application of income of settled property pending conversion
86. Fees and commission deemed a testamentary expense
87. Costs of inquiring regarding beneficiaries
88. Life tenant to have powers of a trustee in certain cases
89. Repeals, amendments, and savings Schedules

An Act to consolidate and amend certain enactments of the General Assembly relating to trusts and trustees

1. Short Title and commencement- (1) This Act may be cited as the Trustee Act 1956.

(2) This Act shall come into force on the first day of January, nineteen hundred and fifty-seven.

2. Interpretation and application-(1) In this Act, unless the context otherwise requires,-

"Authorised investments" means investments authorised for the investment of money subject to the trust by the instrument, if any, creating the trust or by this Act or any other Act:

"Bank" means a bank within the meaning of the Banking Act 1908: and includes the Reserve Bank of New Zealand established under the Reserve Bank of New Zealand Act 1933, the Post Office Savings Bank established under the Post and Telegraph Act 1928, and any trustee savings bank constituted under the Trustee Savings Banks Act 1948:

"Benefit", in relation to any person, includes insurance on the life of that person:

"Contingent right" as applied to land includes a contingent 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 or future, and whether vested or contingent:

"Conveyance", as applied to any person, includes the execution by that person of every necessary or suitable assurance for conveying, transferring, assigning, appointing, surrendering, or otherwise 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 for the validity of the conveyance: and "to convey" has a corresponding meaning:

"Government securities" or "New Zealand Government securities" means any securities issued by or under the authority of the Government by virtue of any Act, and secured upon the public revenues of New Zealand:

"Income" includes rents and profits other than profits which under any rule of law are in the nature of capital:

"Land" includes land of any tenure, and mines and minerals, whether or not severed from the surface, buildings or parts of buildings, whether the division is horizontal, vertical, or made in any other way, and any other corporeal hereditament: and also includes a rent and other incorporeal hereditaments, and an easement, right, privilege, share, interest, or benefit in, over, or derived from land: and in this definition "mines and minerals" includes any strata or seams of minerals or substances in or under any land, and powers of working and getting the same: and in this definition "hereditaments" means real property which under an intestacy might at common law have devolved on an heir:

"Mortgagee" includes every person having an estate or interest regarded at law or in equity as merely a security for money: and also includes every person deriving title to the mortgage under the original mortgagee: and "mortgage" has a corresponding meaning:

"Payment", in relation to stocks and securities, includes the deposit or transfer of the same: and "to pay" has a corresponding meaning:

"Person" includes a trustee corporation, and a corporation sole, and also a body of persons, whether corporate or unincorporate:

"Personal representative" means the executor, original or by representation, or an administrator for the time being of a deceased person:

"Possession" includes receipt of income or the right to receive the same, if any: and "possessed" applies to receipt of income of and to any vested estate less than a life interest, at law or in equity, in possession or in expectancy in any land:

"Property" includes real and personal property, and any estate, share, and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not:

"Registrar" means the Registrar of the Court for the district in which any proceeding is taken or anything is done under this Act, and includes a Deputy Registrar where there is no Registrar, or in any case where the Deputy may lawfully act for and on behalf of the Registrar:

"Rent" includes a rent service or a rentcharge, or other rent, toll, duty, royalty, or annual or periodical payment in money or money's worth reserved or issuing out of or charged upon land, but does not include mortgage interest:

"Securities" includes stock, funds, and shares: and "securities payable to bearer" includes securities transferable by delivery or by delivery and endorsement:

"Stock" includes Government securities, and share: and, so far as relates to vesting orders made by the Court under this Act, includes any fund, money, annuity, or security transferable in books kept by any corporation or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest therein:

"Transfer", in relation to stock or securities, includes the performance and execution 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 incidental to an estate conveyed by way of mortgage, but with this exception it extends to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative, or a committee or person authorised to administer the estate of any person under the Mental Health Act 1911, or a manager of a protected estate appointed under the Aged and Infirm Persons Protection Act 1912: and "trustee" has a corresponding meaning and includes a trustee corporation and every other corporation in which property subject to a trust is vested and every person who immediately before the commencement of this Act was a trustee of the settlement or in any way a trustee under the Settled Land Act 1908: and "new trustee" includes an additional trustee:

Provided that in sections fourteen, fifteen, sixteen, twenty-one, twenty-three, thirty-one, thirty-two, forty, forty-one, forty-two, forty-three, forty-four, forty-five, forty-six, forty-seven, fifty-one, sixty-five, sixty-six, and sixty-seven of this Act the term "trust" does not include the duties incident to the office of a committee or person authorised to administer the estate of any person under the Mental Health Act 1911 or a manager of a protected estate appointed under the Aged and Infirm Persons Protection Act 1912: and the term "trustee" is modified accordingly:

"Trustee corporation" means the Public Trustee or the Maori Trustee or any corporation authorised by any Act of the General Assembly to administer the estates of deceased persons and other trust estates:

"Trust for sale", in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without power at discretion to postpone the sale: and "trustee for sale" means the person (including a personal representative) holding land on trust for sale.

(2) For the purposes of this Act a person shall be deemed to be under a disability while he is not of full age or full mental capacity.

(3) This Act, except where otherwise expressly provided, applies to trusts (as hereinbefore defined) constituted or created either before or after the commencement of this Act.

(4) The powers conferred by or under this Act on a trustee who is not a corporation are in addition to the powers given by the instrument, if any, creating the trust: but the powers so conferred, unless otherwise stated, apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and have effect subject to the terms of that instrument.

(5) The powers conferred by or under this Act on a trustee that is a corporation are in addition to the powers given by the instrument, if any, creating the trust and to the powers given by or under the Act or any instrument by or under which the corporation is constituted and any other Act: but the powers so conferred, unless otherwise stated,-

(a) Apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and have effect subject to the terms of that instrument:

(b) Apply if and so far only as a contrary intention is not expressed in the Act or any instrument by or under which the corporation is constituted and any other Act and have effect subject to the terms of every such Act and instrument:

Provided that nothing in this paragraph shall affect any Act which applies to all trustees, whether corporations or not.

(6) This Act does not affect the legality or validity of anything done before the commencement of this Act except as otherwise in this Act expressly provided

Cf. Trustee Act 1925, ss. 68, 69 (U.K.): 1908, No. 200, ss. 2, 78(5), 79(3), 96(2), 98(3), 102(5), 107, 112 (2): 1924, No. 33, s. 2(3), (4): 1933, No. 32, s. 5(3): 1938, No. 20, s. 57(5), (6): 1952, No 51, s 53(2)

4. Authorised investments-(1) A trustee may invest any trust funds in his hands, whether at the time in a state of investment or not, in any investments authorised by the instrument (if any) creating the trust for the investment of money subject to the trust, or in manner following, that is to say:

(a) In any New Zealand Government securities, or in any of the stock, funds, or other securities of the Government of the Commonwealth of Australia, or of any State thereof, or of Fiji:

(b) On real securities in New Zealand to which subsection three of this section applies:

(c) In the debentures, stock, bonds, or other securities issued under any general or special statutory authority (other than this section) by any City Council, or Borough Council, or Town Council, or County Council, or Water Supply Board, or River Board, or Catchment Board, or Road Board, or Electric Power Board, or Hospital Board, [or Fire Board] in New Zealand:

(d) In any debentures, stock, bonds, or other securities issued under any general or special statutory authority (other than this section) by the Auckland Harbour Board, the Bluff Harbour Board, the Lyttelton Harbour Board, the Napier Harbour Board, the Otago Harbour Board, the Timaru Harbour Board, the Wellington Harbour Board, the Auckland Metropolitan Drainage Board, the Christchurch Drainage Board, the Dunedin Drainage and Sewerage Board, the Hutt Valley Drainage Board, the North Shore Drainage Board, the Auckland Transport Board, or the Christchurch Transport Board:

(e) In any debentures, stock, bonds, or other securities issued under any general or special statutory authority (other than this section) by the Bay of Islands Harbour Board, the Gisborne Harbour Board, the Taranaki Harbour Board, the Tauranga Harbour Board, the Wanganui Harbour Board, or the Whangarei Harbour Board, if the repayment of the loan to which those debentures, stock, bonds, or other securities relate, and interest thereon, is secured by a special rate made and levied by the borrower for the purposes of the loan:

(g) In debentures issued by any dairy finance company within the meaning of this section:

(i) In any debentures, stock, bonds, or other securities issued by the Auckland Harbour Bridge Authority or by the Christchurch-Lyttelton Road Tunnel Authority, if payment of all money secured by the debentures, stock, bonds, or securities is guaranteed by the Government of New Zealand:

(j) In any securities authorised for the investment of money subject to a trust by any Act specified in the First Schedule to this Act or by any other Act.

(3) In this section the term "real security" means a first mortgage of an estate in fee simple and a first sub-mortgage of such a first mortgage: and includes a first mortgage over the interest of the lessee or licensee of any Crown land or other land administered by the Land Settlement Board, or . . . any Maori land, where all the following conditions are satisfied, that is to say:

(a) That the land is held under a lease within the meaning of section one hundred and twenty-two of the Land Act 1948 (as set out in section thirteen of the Land Amendment Act 1950), or under a deferred payment licence within the meaning of the Land Act 1948, or under a lease for a term of years with a perpetual right of renewal:

(b) That all conditions of improvement required under the lease or licence have been complied with, and that the lease or licence is not liable to forfeiture in respect of default in complying with the aforesaid conditions:

(c) That the lessee or licensee is entitled under his lease or licence to compensation or adequate protection in respect of all improvements on the land which are made by him or in which he has an interest.

(4) For the purposes of paragraph (g) of subsection one of this section, "debenture" has the same meaning as in the Companies Act 1955: and "dairy finance company" means a company formed and registered under that Act on or after the twenty-sixth day of October, nineteen hundred and thirty-five (being the date of the passing of the Trustee Amendment Act 1935), in respect of which all the following conditions are satisfied, that is to say:

(a) That the share capital of the dairy finance company in respect of shares to which voting rights are attached has been paid up in cash to an amount not less than one hundred thousand pounds:

(b) That not less than seventy-five per cent of the authorised share capital to which voting rights are attached has been subscribed for and paid up in cash by a cooperative dairy company within the meaning of the Cooperative Dairy Companies Act 1949, and that the cooperative dairy company is prevented by the terms of its memorandum of association from transferring any shares held by it so as to reduce its holding below the minimum prescribed in this paragraph:

(c) That the object of the dairy finance company or its principal object is the making of loans to members of the cooperative dairy company aforesaid, such loans being secured by way of first mortgage of land in New Zealand:

(d) That the dairy finance company is debarred from making any loan as aforesaid in excess of two-thirds of the value of the mortgagor's interest in the land on which the loan is secured, such value being determinable in every case by an independent valuer:

(e) That the dairy finance company has established and shall at all times maintain a Reserve Fund, and that every mortgagor to that company shall be required to pay to the credit of the Reserve Fund an amount equal to two per cent of the amount of his loan, such amount, at the option of the mortgagor, to be paid in cash at the time of the making of the loan or to be added to the amount of the loan and to be secured by the mortgage as if it formed part of the loan:

Provided that no payment to the Reserve Fund in accordance with this paragraph shall be required in respect of the renewal of a loan or the execution of a new mortgage in substitution for a former mortgage securing the whole or any part of a loan in respect of which payment to the Reserve Fund has been made in accordance with this paragraph:

(f) That the Reserve Fund shall be kept invested in securities of the classes authorised by paragraphs (a), (c), (d), (e), and (i) of subsection one of this section:

(g) That the debentures in which any trust funds are invested shall constitute a charge on all the assets of the company and that that charge shall have priority over all other charges on those assets (except such statutory charges, if any, as are made a first charge on the assets of the Dairy finance company, or any charge created by a prior issue of like debentures and expressed to have priority over any later issue of debentures):

(h) That the authority of the dairy finance company to borrow money (whether on security or not) is so limited that the total amount borrowed and for the time being outstanding cannot at any time exceed an amount equal to five times the amount of the paid up capital of that company:

Provided that nothing in this paragraph shall restrict the operation of subsection three of section thirty-four of the Companies Act 1955:

(i) That the dividends payable to shareholders shall not exceed five per cent per annum cumulative.

Cf. Trustee Act 1925, s. 1 (U.K): 1908, No. 200, ss. 77, 95(1), (3), 97: 1935, No. 37, s. 5: 1953, No. 17, s. 2

The words in square brackets were inserted in subs. (1)(c) by s 2(1) of the Trustee Amendment Act 1957.

The word "over", where it appeared in the second place in subs. (3), was omitted by s. 2(2) of the Trustee Amendment Act 1957.

As to the power of a Hospital Board to invest money held in trust in any investment authorised by this section, notwithstanding the terms of the trust, see s. 75 (1)(b) of the Hospitals Act 1957.

As to the investment by the Public Trustee of money in the Common Fund, see s. 32 of the Public Trust Office Act 1957.

5. Purchase of redeemable stocks at a premium or discount-(1) A trustee [having authority to] invest in any of the securities referred to in paragraphs (a), (c), (d), (e), and (i) of subsection one of section four of this Act [may invest in any such securities], notwithstanding that the securities may be redeemable, and that the price is greater or less than the redemption value:

Provided that, in the case of any such security (other than a New Zealand Government security) which is liable to be redeemed at par or at some other fixed rate, a trustee shall not be entitled to invest in the security-

(a) In any case where the security is liable to be so redeemed as aforesaid within a period of less than fifteen years from the date of purchase, at a price exceeding its redemption value plus one per cent in respect of each complete year of that period:

(b) In any other case, at a price exceeding fifteen per cent above its redemption value.

(2) A trustee may retain until redemption any redeemable security which may have bee been purchased in accordance with the powers of this Act, or any statute replaced by this Act.

(3) In any case where any security to which subsection one of this section applies is purchased by a trustee after the commencement of this Act at a price greater or less than its redemption value, and in terms of the trust the beneficial interest in the income from the security is not vested in the same persons as the beneficial interest in the capital thereof, then, subject to the provisions of section eighty-three of this Act,-

(a) If the purchase price exceeds the redemption value, the trustee shall recoup to the capital out of which the purchase was made by rateable instalment, from the income derived from the security over the period between the date of purchase and the earliest date on which the security can be repaid or redeemed, the amount of the difference; and the amount so recouped to capital from time to time shall be deemed to be received as capital repaid:

(b) If the redemption value exceeds the purchase price, the amount of the difference shall be distributable as if it were income accruing from day to day over the period between the date of the purchase and the latest date on which the security can be repaid or redeemed, and the trustee may by rateable instalments over the period appropriate or raise out of the capital of the security or out of the capital of other assets subject to the same trusts the amounts required from time to time to be distributed as income; and if the security is repaid or redeemed before the latest date on which the same can be repaid or redeemed any remaining balance of the difference shall on the repayment or redemption immediately become distributable as if it were income then due and payable:

Provided that, in any case where the amount to be recouped to or deducted from capital in any year in accordance with paragraph (a) or paragraph (b) of this subsection is less than one pound, it shall not be necessary for the trustee to comply with the provisions of this subsection.

Cf. Trustee Act 1925, s. 2 (U.K.); 1908, No. 200, s. 95 (4), (5); 1935, No. 37, s. 3

In subs. (1) the words in the first set of square brackets were substituted for the words "may under the powers of this Act" by s. 3 (a) of the Trustee Amendment Act 1957.

The words in the second set of square brackets were inserted by s. 3 (b) of that Act.

6. Trustee carrying on business may invest in shares in cooperative enterprises-Unless expressly forbidden by the instrument (if any) creating the trust, it shall be lawful and be deemed always to have been lawful for a trustee who is empowered to carry on any business forming part of the assets of the trust property, so long as he continues lawfully to carry on that business,-

(a) To take up and subscribe for or otherwise acquire, out of such of the trust funds as he may lawfully use in the carrying on of that business, shares in any cooperative company (whether incorporated under the Cooperative Companies Act 1956 or the Cooperative Dairy Companies Act 1949 or any other Act) or in any other cooperative enterprise, if membership of the company or enterprise is essential or highly advantageous to the carrying on of that business or the marketing of the products of that business:

(b) Subject to the provisions of any other enactment relating to the compulsory surrender of shares, to retain as part of the trust property any shares held in any such company or cooperative enterprise and, out of such of the trust funds as he may lawfully use in the carrying on of that business, to pay calls on any such shares.

7. Discretion of trustees-Every power conferred by the foregoing provisions of this Act shall be exercised according to the discretion of the trustee, but subject to any consent or direction required by the instrument, if any, creating the trust or by statute with respect to the investment of trust funds.

8. Power to retain investment which has ceased to be authorised-A trustee shall not be liable for breach of trust by reason only of his continuing to hold an investment which has ceased to be an investment authorised by the trust instrument or by the general law.

9. Investment in bearer securities-(1) A trustee may, unless expressly prohibited by the instrument creating the trust, retain or invest in securities payable to bearer which, if not so payable, would have been authorised investments:

Provided that securities to bearer retained or taken as an investment by a trustee (not being a trustee corporation) shall, until sold, be deposited by him for safe custody and collection of income with a bank.

(2) A direction that investments shall be retained or made in the name of a trustee shall not, for the purposes of sub-section one of this section, be deemed to be such an express prohibition as aforesaid.

(3) A trustee shall not be responsible for any loss incurred by reason of any such deposit, and any sum payable in respect of any such deposit and collection shall be paid out of the income of the trust property.

10. Loans and investments by trustees not chargeable as breaches of trust-(1) A trustee lending money on the security of any property on which he can properly 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, if it appears to the Court-

(a) That in making the loan the trustee was acting upon a report as to the value of the property made by a person whom he reasonably believed to be competent to value the property, being a person instructed and employed independently of any owner of the property, whether that valuer resided or carried on business in the locality where the property is situate or elsewhere; and

(b) That the amount of the loan does not exceed two-thirds of the value of the property as stated in the report; and

(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 the loan he dispensed either wholly or partly with the production or investigation of the lessor's title.

(3) This section applies to transfers of existing securities as well as to new securities and to investments made before as well as after the commencement of this Act.

11. Liability for loss by reason of improper investment-(1) Where a trustee improperly advances trust money on a mortgage security which would at the time of the investment be a proper investment in all respects for a smaller sum than is actually advanced thereon, the security shall be deemed an authorised investment for the smaller sum, and the trustee ,shall only be liable to make good the sum advanced in excess thereof with interest.

This section applies to investments made before as well as after the commencement of this Act.

12. Powers in relation to company securities-(1) Where any securities of a company are subject to a trust, the trustee may concur in any scheme or arrangement-

(b) For the sale of all or any part of the property and undertaking of the company to another company; or

(d) For the release, modification, or variation of any rights, privileges, or liabilities attached to the securities or any of them-

in like manner as if he were entitled to the securities beneficiary with power to accept any securities of any denomination or description of the reconstructed or purchasing or new company instead of or in exchange for all or any of the first-mentioned securities: and the trustee shall not be responsible for any loss occasioned by any act or thing so done in good faith, and may retain any securities so accepted as aforesaid for any period for which he could have properly retained the original securities.

(2) If any conditional or preferential right to subscribe for any securities in any company is offered to a trustee in respect of any holding in that company or any other company, he may, as to all or any of the securities, either exercise the right and apply capital money subject to the trust in payment of the consideration, or renounce the right, or assign for the best consideration that can be reasonably obtained the benefit of he right or the title thereto to any person, including any beneficiary under the trust, without being responsible for any loss occasioned by any act or thing so done by him in good faith:

Provided that the consideration for any such assignment shall be held as capital money of the trust.

(3) The powers conferred by this section shall be exercisable subject to the consent of any person whose consent to a change of investment is required by law or by the instrument, if any, creating the trust.

13. Power to pay calls-A trustee may apply capital money subject to a trust in payment of the calls on any shares subject to the same trust.

14. Powers to sell, exchange, partition, postpone, lease, purchase, etc.-(1) Subject to the provisions of this section, every trustee may exercise the following powers in respect of any property for the time being vested in him:

(b) Dispose of the property by way of exchange for other property in New Zealand of a like nature and a like or better tenure, or, where the property vested in him consists of an undivided share, concur in the partition of the property in which the share is held, and give or take any property by way of equality of exchange or partition:

(c) Postpone the sale, calling in, and conversion of the property, whether or not it is of a wasting, speculative, or reversionary nature:

Provided that nothing in this paragraph shall permit a trustee to postpone the sale, calling in, or conversion of any property of a wasting or speculative nature for longer than is reasonably necessary to permit its prudent realisation:

(d) Let or sublet the property at a reasonable rent for any term not exceeding one year, or from year to year, or for a weekly, monthly, or other like tenancy, or at will:

(e) Grant a lease or sublease of the property for any term not exceeding twenty-one years to take effect in possession Within one year next after the date of the grant of the lease or sublease at a reasonable rent, with or without a fine, premium, or foregift:

Provided that where a fine, premium, or foregift is taken, the amount thereof shall be deemed to be part of and an accretion to the rental, and shall, as between the persons beneficially entitled to the rental, be considered as accruing from day to day and apportioned over the term of the lease or sublease:

(f) At any time during the currency of a lease of the property, reduce the rent or otherwise vary or modify the terms thereof:

(g) In the case of property subject to a lease, grant to a sublessee (with the consent of the lessee) a lease direct from the trustee of the whole or any part of the land comprised in the original lease for the residue of the original term thereof.

(a) If the land being purchased adjoins other land which the trustee has power to retain and which is held by the trustee on the same trusts as the money expended in respect of the purchase of the land, and the amount so expended does not exceed one thousand pounds:

(b) If the land being purchased has a dwellinghouse thereon and is required exclusively or principally as a home for the person entitled to the income of the money being expended in respect of the purchase, and the whole of that money is derived from the sale of another dwellinghouse and the land appurtenant thereto which the trustee had power to retain.

[(2A) Any trustee may erect a dwellinghouse on land that is subject to the same trusts as the money being expended in respect of the erection, or may purchase land in New Zealand and erect a dwellinghouse thereon, if the dwellinghouse and land are required exclusively or principally as a home for the person entitled to the income of the money being expended in respect of the erection or the purchase and erection, as the case may be, and if the whole of the money is derived from the sale of another dwellinghouse and the land appurtenant thereto which the trustee had power to retain.]

(3) Any trustee may accept or concur or join with any other person in accepting a lease or sublease of any property on such terms and subject to such covenants and conditions as he thinks fit; and may surrender or concur or join with any other person in surrendering any lease or sublease; and, if lessor or sublessor, may accept or concur or join with any other person in the acceptance of the surrender of any lease or sublease.

(4) Any trustee may, on such conditions as he thinks proper, rescind or cancel or modify or vary any contract or agreement for the sale and purchase of any land, or agree to do so, or compromise with or make allowances to any person with whom such contract or agreement has been made, or who is the assignee thereof in respect of any unpaid purchase money secured on mortgage or otherwise.

(5) In exercising any power of leasing or subleasing conferred by this section or by the instrument (if any) creating the trust, a trustee may-

(a) Grant to the lessee or sublessee a right of renewal for one or more terms at a rent to be fixed or made ascertainable in a manner specified in the original lease or the original sublease, but so that the aggregate duration of the original and of the renewed terms shall not exceed the maximum single term that could be granted in exercise of the power:

(b) Subject to the provisions of this section, grant a lease with an optional or compulsory purchasing clause:

Provided that this power shall not apply to the exercise of any power of sale conferred by any mortgage unless the mortgage confers authority to do so:

(c) Grant to the lessee or sublessee a right to claim compensation for improvements made or to be made by him in, upon, or about the property which is leased or subleased.

(6) No trustee shall, without the consent of the Court, exercise any power conferred on him by this section of granting a lease with an optional or compulsory purchasing clause, or of selling or exchanging any freehold land, in any case where the value of the land (as determined under section twenty-eight of this Act) exceeds five thousand pounds:

Provided that a trustee may, without the consent of the Court, sell any such land for more than five thousand pounds in exercise of the powers conferred on him by this section, if (under section twenty-eight of this Act) he has in good faith fixed the value of the land immediately before the sale at five thousand pounds or less.

[(7) Where there is a power (statutory or otherwise) to postpone the sale of any land or authorised investment that a trustee has a duty to sell by reason only of a trust or direction for sale, then (subject to any express direction to the contrary in the instrument, if any, creating the trust) the trustee shall not be liable in any way merely for postponing the sale, in the exercise of his discretion, for an indefinite an unlimited period, whether or not that period exceeds the period during which the trust or direction for sale remains valid; nor shall a purchaser of the land or authorised investment be concerned in any case with any directions respecting the postponement of a sale:

Provided that this subsection shall not apply to any property of a wasting or speculative nature.]

As to the additional powers in respect of property of Boards incorporated under Part II of the Charitable Trusts Act 1957. see s. 21 of that Act

15. Miscellaneous powers in respect of property-(1) Every trustee may exercise the following powers in respect of any property for the time being vested in him:

(a) Expend money subject to the same trusts for the repair, maintenance upkeep, or renovation of the property, whether or not the work is necessary for the purpose of the salvage of the property; and (subject to the rules of law applicable in such cases and to any direction of the Court to the contrary) apportion the cost of the work between capital and income or otherwise among the persons entitled thereto in such manner as he considers equitable, with power, in any case where the whole or part of the cost of the work is charged to capital, to recoup capital from subsequent income if such a course would be equitable having regard to all the circumstances of the case:

(b) Expend money subject to the same trusts in the improvement or development of the property:

Provided that, in exercise of the power conferred by this paragraph, not more than five thousand pounds may be so expended by a trustee without the consent of the Court for any one purpose:

(c) Where the property is land and the land may be sold or let or leased or otherwise disposed of under any power or trust vested in the trustee, subdivide the land into sections and for that purpose construct and dedicate all such roads, streets, access ways, service lanes, and footpaths and make all such reserves, and do all such other things, and pay all such money, as be thinks necessary or as are required by any law or bylaw relating to sub divisions:

(d) Contribute out of money subject to the same trusts such sum as he thinks reasonable towards the construction and maintenance of such roads, streets, access ways, service lanes, and footpaths, and such sewerage, water, electricity, drainage and other works as are in the opinion of the trustee likely to be beneficial to the property, notwithstanding that they are intended to be constructed wholly or in part on land not subject to the same trusts:

(e) Grant easements and profits a prendre and enter into party wall agreements and agreements which relate to fencing or to which section six of the Fencing Act 1908 applies, and execute all necessary documents to give effect thereto:

(f) Pay rates, taxes, assessments, insurance premiums, and other outgoings in respect of the property out of "money subject to the same trusts:

(g) As mortgagor or mortgagee, agree to the renewal, extension, or variation of the mortgage for such period and on such terms and conditions as he thinks fit:

Provided that the powers conferred by this paragraph may be exercised by a trustee as mortgagor for the purpose of raising additional money on the security of a mortgage of any property in any case where the trustee would have power under section twenty-one of this Act to raise money by a mortgage of the property, but not otherwise:

Provided also that nothing in this paragraph shall authorise any trustee to advance any money on the security of any mortgage that would not be an authorised investment in respect of the amount advanced:

(h) Make such inquiries, by way of advertisement or otherwise, as he deems necessary for the purpose of ascertaining the next-of-kin or beneficiaries entitled to the property, and charge the cost of the inquiries and advertisements against the property:

(i) Where the property includes a life policy and there is no money or insufficient money available for the payment of premiums on the policy, surrender the policy for money, or accept instead of the policy a fully paid up policy, or vary the terms of the policy in such manner as the trustee thinks fit:

(j) Appropriate any part of the property in or towards satisfaction of any legacy payable thereout or any share thereof (whether settled, contingent, or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with section twenty-eight of this Act:

Provided that before any such appropriation is effectual notice thereof shall be given to all persons of full age and full mental capacity who are interested in the appropriation, and any such person may within one calendar month after receipt of the notice apply to the Court to vary the same, and the appropriation shall be conclusive save as otherwise directed by the Court:

Provided also that where the person interested is out of the jurisdiction the said period of one month may be extended by the Court for such period as the Court thinks fit, on the application of the of trustee or of any person interested:

(k) Where provision is made in any instrument creating a trust for payment of an annuity or other periodical payment, and notwithstanding that the annuity or payment may by the instrument be charged upon the trust property or upon any part thereof, set aside and appropriate out of property available for payment of the annuity and invest a sum sufficient in the opinion of the trustee at the time of the appropriation to provide out of the income thereof the amount required to pay the annuity or periodical payment, and, after the appropriation shall have been made, the residue of the trust property and the income thereof shall no longer be liable for the annuity, and may be distributed forthwith in accordance with the trusts declared of and concerning the same:

(l) Do or omit all acts and things, and execute all instruments necessary to carry into effect the powers and authorities given by this Act or by or under the instrument creating the trust.

(2) Where in the administration of any property employed in the production of income or from which income is derived a trustee considers that in the interests of the persons entitled or who may become entitled to the capital of the property it is equitable to set up a depreciation or replacement fund in respect of the property or in respect of any asset comprised therein, then, notwithstanding any rule of law to the contrary, it shall be lawful for but not obligatory upon him to do so, and to credit from time to time to the fund and accumulate by way of compound interest such part of the income so produced or derived as he considers equitable and also the resulting income therefrom. In any such case the fund shall follow the destination of the capital of the property and shall be subject to all the trusts, powers, and provisions applicable thereto; with further power to the trustee to apply as he thinks fit the fund and accumulations of income in or towards the replacement, repair, maintenance, upkeep, or renovation of the property or asset, or in or towards the acquisition by purchase or otherwise of property or assets of a like nature or which otherwise may advantageously be employed in conjunction with the property in producing or deriving the income as aforesaid.

16. Power of trustee for sale to sell by auction, etc., or before date specified-(1) Where a trust for sale or a power of sale of property is vested in a trustee, he may sell or concur with any other person in selling all or any part of the property, either subject to prior encumbrances or not, and either together or in lots, by public auction or by public tender or by private contract, subject to any such conditions respecting title or evidence of title or other matters 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) A trust or power to sell or dispose of land includes a trust or power to sell or dispose of part thereof, whether the division is horizontal, vertical, or made in any other way; and also includes a trust or power to sell or dispose of any buildings, fixtures, timber, or other thing's affixed to the soil apart and separately from the land itself.

(3) In exercise of any power of sale in respect of several properties held under one lease, the trustee may sell the properties separately on the terms that one of the purchasers shall take an assignment of the lease and grant subleases to the other purchasers, and that if any part of the property is not sold the trustee shall retain the lease and grant subleases of the portions sold.

(4) Where a trustee may sell any property at a fixed or specified time pursuant to any trust or power vested in him, the trustee may, with the consent of the persons (if any) entitled to the possession thereof pending the sale of the property, sell the property at any time before the date originally appointed.

Cf. Trustee Act 1925, s. 12 (U.K.); 1921-22, No. 48,s. 20 (1), (4); 1952, No. 51, s. 53

17. Power to sell property on terms-(1) A sale of [property] by a trustee in exercise of any power vested in him in that behalf by the instrument creating the trust or by or under this Act or any other enactment may be on terms of deferred payment or otherwise.

(2) The terms of deferred payment shall be such as a person acting with prudence would, if the [property] were his own, have accepted in the circumstances in order to sell the [property] to the best advantage, and, subject thereto, may provide for the payment of the purchase money or any part thereof under an agreement for sale or for the conveyance of the [property] sold and the securing of the unpaid purchase money by mortgage of the [property] sold.

(3) Whether the sale is made under the order of the Court or otherwise, the Court may make such order as it thinks fit as to the terms of deferred payment.

(4) A trustee selling [property] on terms authorised by this section or by any order of the Court shall not be affected by section four or section ten of this Act in respect of so much of the purchase money as is payable under an agreement for sale or is secured by a mortgage, and shall not be liable for any loss that may be incurred by reason only of the security being insufficient at the date of the agreement or mortgage.

(5) For the purposes of any consent or direction required by the instrument, if any, creating the trust or by statute, a trustee selling [property] on terms of deferred payment shall not be deemed to be lending money or investing trust funds.

The word "property" was substituted for the word "land" throughout this section by s. 6 of the Trustee Amendment Act 1957.

18. Power to sell subject to depreciatory conditions-(1) No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the 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 or transfer, 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 any of the grounds aforesaid.

(4) This section applies to sales made before or after the commencement of this Act.

19. Power of trustees to give receipts-(1) The receipt in writing of a trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to him under any trust or power shall be a sufficient discharge to the person paying, transferring, or delivering the same, and shall effectually exonerate that person from seeing to the application or being answerable for any loss or misapplication thereof.

(2) This section applies notwithstanding anything to the contrary in the instrument, if any, creating the trust.

(a) Accept any property, real or personal, before the time at which it is made transferable or payable; or

(d) Accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed; or

(f) Surrender any leasehold property subject to onerous covenants of such a nature that it would not be to the advantage of the person beneficially interested to retain the property; or

(g) Compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the trust or to the trust property,-

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 seem expedient, without being responsible for any loss occasioned by any act or thing so done by him in good faith.

Cf. Trustee Act 1925, s. 15 (U.K.); Trustee Act 1925, s. 35 (NSW); 1908, No. 200, s. 110; 1924, No. 33, s. 2 (2)

21. Power to raise money by sale or mortgage-Where a trustee is authorised by the instrument, if any, creating the trust or by this Act or any other Act or by law to pay or apply capital money subject to the trust for any purpose or in any manner, he shall have and shall be deemed always to have had power to raise the money required by sale, conversion, calling in, or mortgage of all or any part of the trust property for the time being in possession.

22. Protection to purchasers and mortgagees dealing with trustees-Without restricting the provisions of the Land Transfer Act 1952, it is hereby declared that no purchaser or mortgagee, paying or advancing money on a sale or mortgage purporting to be made under any trust or power (statutory or otherwise) vested in a trustee, shall be concerned to see that the money is wanted, or that no more than is wanted is raised, or otherwise as to the application thereof.

23. Devolution of powers or trusts-(1) Where a power or trust is given to or imposed on two or more trustees jointly, the same may be exercised or performed by the survivors or survivor of them for the time being.

(2) Until the appointment of a new trustee, the personal representative for the time being of a sole trustee or (where there were two or more trustees) of the last surviving or continuing trustee shall be capable of exercising or performing any power or trust which was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other the trustees for the time being of the trust:

Provided that in this subsection the term "trustee" does not include a personal representative as such.

(3) This section does not authorise the exercise or performance of any power or trust by an executor who has renounced or has not proved.

24. Power to insure-(1) A trustee may insure against loss or damage, whether by fire or earthquake or otherwise, any building or other insurable property to any amount, including the amount of any insurance already on foot, not exceeding the full insurable value of the building or property, or (with the consent of the person entitled to the income or of the Court) the full replacement value of the building or property; and may also insure against any risk or liability against which it would be prudent for a person to insure if he were acting for himself; and may pay the premiums for the insurance out of the income of the building or property concerned 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 that income.

(2) The trustee may recover the costs of any premiums paid in respect of any such insurance from the life tenant or other person entitled to or in receipt of the rents and profits of the building or property concerned.

Cf. Trustee Act 1925, s. 19 (1) (U.K.); Trustee Act 1925, s. 41 (N.S.W.); 1908, No. 200, s. 90; 1921-22, No. 48, s. 21 (2)

25 Application of insurance money where policy kept up under any trust, power, or obligation-(1) Money receivable by a trustee or any beneficiary under a policy of insurance against the loss of or damage to any property subject to a trust, whether by fire or otherwise, shall, where the policy has been kept up under any trust in that behalf or under any power, statutory or otherwise, or in performance of any covenant or of any obligation, statutory or otherwise, or by a tenant for life impeachable for waste, be capital for the purposes of the trust, except so far as it would be regarded as income under any rule of law.

(2) If any such money is receivable by any person other than the trustee of the trust, that person shall use his best endeavours to recover and receive the money, and shall pay the net residue thereof, after discharging any costs of recovering and receiving it, to the trustee of the trust, or, there is no trustee capable of giving a discharge therefor, to the Crown under section seventy-seven of this Act.

(a) If it was receivable in respect of property held upon trust for sale, shall be held upon the trusts and subject to the powers and provisions applicable to money arising by a sale under the trust:

(b) In any other case, shall be held upon trusts corresponding as nearly as may be with the trusts affecting the property in respect of which it was payable.

(4) Any such money, or any part thereof, may also be applied by the trustee, or, if held by the Crown, under the direction of the Court, in rebuilding, reinstating, replacing, or repairing the property lost or damaged, but any such application by the trustee shall be subject to the consent of any person whose consent is required by the instrument, if any, creating the trust to the investment of money subject to the trust.

(5) Nothing in this section shall prejudice or affect the right of any person to require any such money or any part thereof to be applied in rebuilding, reinstating, or repairing the property lost or damaged, or the rights of any mortgagee, lessor, or lessee, whether under any statute or otherwise.

(6) This section applies to policies effected either before or after the commencement of this Act, but only to money received after the commencement thereof.

26. Deposit of documents for safe custody-Subject to the provisions of section nine of this Act, a trustee may deposit any documents held by him relating to the trust, or to the trust property, with any bank or corporation whose business includes the undertaking of the safe custody of documents, and any sum payable in respect of any such deposit shall be paid out of the income of the trust property, and so far as there is no available income out of the capital of the trust property.

27. Reversionary interests-(1) Where trust property include any share or interest in property not vested in the trustee, or the proceeds of the sale of any such property, or any other thing in action, the trustee, on the same falling into possession or becoming payable or transferable, may-

(a) Agree or ascertain the amount or value thereof or any part thereof in such manner as he may think fit:

(b) Accept in or towards satisfaction thereof, at the market or current value, or upon any valuation or estimate of value which he may think fit, any authorised investments:

(d) Execute any release in respect of the premises so as effectually to discharge all accountable parties from all liability in respect of any matters coming within the scope of the release-

without being responsible in any such case for any loss occasioned by any act or thing so done by him in good faith.

(2) The trustee shall not be under any obligation and shall not be chargeable with any breach of trust by reason of any omission-

(a) To give any notice in respect of or apply for any charging or other like order upon any securities or other property out of or in which such share or interest or other thing in action as aforesaid is derived, payable, or charged; or

(b) To take any proceedings on account of any act, default, or neglect on the part of the persons in whom the securities or other property or any of them or any part thereof are for the time being, or had at any time been, vested -

unless and until required in writing so to do by some person, or the guardian of some person, beneficially interested under the trust, and unless also due provision is made to his satisfaction for payment of the costs of any proceedings required to be taken:

Provided that nothing in this subsection shall relieve the trustee of the obligation to get in and obtain payment or transfer of the share or interest or other thing in action on the same falling into possession.

28. Valuations-A trustee may, for the purpose of giving effect to the trust, or any of the provisions of the instrument, if any, creating the trust or of this Act or any other Act, from time to time ascertain and fix the value of any trust property, or of any property which he is authorised to purchase or otherwise acquire, in such manner as he thinks proper; and where the trustee is not personally qualified to ascertain the value of any property he shall consult a duly qualified person (whether employed by him or not) as to that value; but the trustee shall not be bound to accept any valuation made by any person whom the trustee may consult. Any valuation made by the trustee in good faith under this section shall be binding on all persons beneficially interested under the trust.

In the last sentence the word "section" appears in the statute book as "subsection", an obvious error which has been corrected in this reprint.

29. Power to employ agents-(1) A trustee may, instead of acting personally, employ and pay an agent, whether a solicitor, accountant, bank, trustee corporation, stockbroker, or other person, to transact any business or do any act required to be transacted or done in the execution of the trust or the administration of the trust property, including the receipt and payment of money, and the keeping and audit of trust accounts, and shall be entitled to be allowed and paid all charges and expenses so incurred, and shall not be responsible for the default of any such agent if employed in good faith.

(2) A trustee may appoint any person to act as his agent or attorney for the purpose of selling, converting, collecting, getting in, and executing and perfecting assurances of, or managing or cultivating, or otherwise administering any property, real or personal, movable or immovable, subject to the trust in any place outside New Zealand, or executing or exercising any discretion or trust or power vested in him in relation to any such property, with such ancillary powers and with and subject to such provisions and restrictions as he may think fit, including a power to appoint substitutes, and shall not, by reason only of his having made any such appointment, be responsible for any loss arising thereby.

(a) A trustee may appoint a solicitor to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust by permitting the solicitor to have the custody of, and to produce, a deed or instrument having in the body thereof or endorsed thereon a receipt for the money or valuable consideration or property, the deed or instrument being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration:

(b) 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 production of any such deed or instrument by the solicitor shall have the same validity and effect as if the person appointing the solicitor had not been a trustee:

(c) A trustee may appoint a bank 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 insurance, by permitting the bank or solicitor to have the custody of and to produce the policy of insurance 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:

Provided that nothing in this subsection shall exempt a trustee from any liability which he would have incurred if this Act and any enactment replaced by 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 bank or solicitor for a period longer than is reasonably necessary to enable the bank or solicitor, as the case may be, to pay or transfer the same to the trustee.

(4) Subsection three of this section shall apply whether the money or valuable consideration or property was or is received before or after the commencement of this Act.

30. Power to concur with others-Where an undivided share in any property is subject to a trust, the trustee may (without prejudice to any trust or power in relation to the entirety of the property) execute or exercise any trust or power vested in him in relation to that share in conjunction with the persons entitled to or having power in that behalf over the other share or shares, and notwithstanding that the trustee or any one or more of several trustees may be entitled to or interested in any such other share, either in his or their own right or in a fiduciary capacity.

31. Power to delegate trusts-(1) A trustee who for the time being is out of New Zealand or is about to depart therefrom or who is or may be about to become, by reason of physical infirmity, temporarily incapable of performing all his duties as a trustee may, notwithstanding any rule of law or equity to the contrary, by power of attorney executed as a deed, delegate to any person the execution or exercise during his absence from New Zealand or during his incapacity, as the case may be, of all or any trusts, powers, authorities, and discretions vested in him as such trustee, whether alone or jointly with any other person or persons:

Provided that a person being the only other co-trustee and not being a trustee corporation shall not be appointed to be an attorney under this subsection.

(2) Where any such delegation has been duly made to and accepted by any person and is for the time being in operation, that person shall have, within the scope of the delegation, the same trusts, powers, authorities, discretions, liabilities, and responsibilities as he would have if he were then the trustee.

(3) In any proceedings brought by any person beneficially interested under the trust against the donor of a power of attorney given under this section in respect of any act or default of the donee of the power it shall be a defence for the donor to prove that the donee was appointed by him in good faith and without negligence.

(4) All jurisdiction and powers of any Court shall apply to the donee of the power of attorney in the same manner, so far as respects the execution of the trust or the administration of the estate to which the power of attorney relates, as if the donee were acting in relation to the trust or estate in the same capacity as the donor of the power.

(5) The power of attorney shall not come into operation unless and until the donor is out of New Zealand or is incapable of performing all his duties as a trustee, and shall be deemed to be revoked by his return or by his recovery of that capacity, as the case may be.

(6) In favour of any person dealing with the donee of a power of attorney given under this section, any act done or instrument executed by the donee shall, notwithstanding that the power has never come into operation or has been revoked, whether by the act of the donor of the power or by operation of law, be as valid and effectual as if the power had come into operation and remained unrevoked at the time when the act was done or the instrument executed, unless that person had at that time actual notice that the power had never come into operation or of the revocation of the power.

(7) A statutory declaration by the donee of a power of attorney relating to any trust or estate that the power has come into operation, or that in any transaction the donee is acting in the execution of the trust or the administration of the estate, shall in favour of a person dealing with the donee of the power be conclusive evidence of that fact.

(8) The fact that it appears from any power of attorney given under this section, or from any evidence required for the purposes of any power of attorney or otherwise, that in any transaction the donee of the power is acting in the execution of a trust shall not be deemed for any purpose to affect any person dealing in good faith with the donee with any notice of the trust.

(9) For the purpose of executing or exercising the trusts, powers, authorities, and discretions delegated to him the donee may exercise any of the powers, authorities, and discretions conferred on the donor as trustee by statute or by the instrument creating the trust, except the power of delegation conferred by this section.

Cf. Trustee Act 1925, s. 25 (U.K.); Trustee Act 1925, ss. 64 (1), (4), 66 (N.S.W.); 1908, No. 200, ss. 103-105

32. Power to carry on business-(1) Subject to the provisions of any other Act, if at the time of his death any person (whether alone or in partnership) is engaged in carrying on a business, trade, or occupation, it shall be lawful for his trustee to continue to carry on the same in the same manner for any one or more of the following periods:

(b) Such period as may be necessary or desirable for the winding up of the business:

(2) In exercise of the powers conferred by this section or by the instrument creating the trust, a trustee may employ any part of the deceased's estate which is subject to the same trusts; and may from time to time increase or diminish the part of the estate so employed; and may purchase stock, machinery, implements, and chattels for the purposes of the business; and may employ such managers, agents, servants, clerks, workmen, and others as he thinks fit; and may at any time enter into a partnership agreement to take the place of any partnership agreement subsisting immediately before the death of the deceased or at any time thereafter.

(3) Application to the Court for leave to carry on a business may be made by the trustee or any person beneficially interested in the estate at any time, whether or not any previous authority to carry on the business has expired; and the Court may make such an order, or may order that the business be not carried on, or be carried on subject to conditions, or may make such other order as in the circumstances seems proper.

(4) Nothing in this section shall prejudice any other authority to do the acts thereby authorised to be done.

(5) Where a trustee is in any manner interested or concerned in a trade or business, he may make such subscription as it would be prudent for him to make if he were acting for himself out of the income of the assets affected to any fund created for objects or purposes in support of trades or businesses of a like nature and subscribed to by other persons engaged in the like trade or business.

33. Power to convert business into a company - A trustee may at any time, at the expense of the trust property, convert or join in converting any business into a company limited by shares in such manner as he may think fit; and may, at the like expense, promote and assist in promoting a company for taking over the business; and may sell or transfer the business and the capital and assets and goodwill thereof, or any part thereof, to the company, or to any company having for its objects the purchase of such a business, in consideration, in either case, wholly or in part of ordinary or preference shares wholly or partially paid u. of any such company, or wholly, or in part of debentures, debenture stock, or bonds of any such company, and as to the balance (if any) in cash payable immediately, or by any with or without security.

34. Protection against liability in respect of rents and covenants-(1) Where a trustee liable as such for-

(b) Any rent, covenant, or agreement payable under or contained in any grant made in consideration of a rentcharge; or

(c) Any indemnity given in respect of any rent, covenant, or agreement referred to in either of the foregoing paragraphs-

satisfies all liabilities under the lease or grant which may have accrued and been claimed up to the date of the conveyance hereinafter mentioned, and, where necessary, sets apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum which the lessee or grantee agreed to lay out on the property demised or granted, although the period for laying out the same may not have arrived, then and in any such case the trustee may convey the property demised or granted to a purchaser, legatee, devisee, or other person entitled to call for a conveyance thereof, and thereafter-

(i) He may distribute the trust estate (other than the fund, if any, set apart as aforesaid) to or amongst the persons entitled thereto, without appropriating any part, or any further part, as the case may be, of the trust estate to meet any future liability under the said lease or grant:

(ii) Notwithstanding the distribution, he shall not be personally liable in respect of any subsequent claim under the said lease or grant.

(2) For the purposes of this section a trustee shall be deemed to be liable as such for any liabilities arising from privity of estate which he may incur under the obligations contained in a lease or grant if he is entitled to reimburse himself out of the trust property for all expenses he may incur in respect of the liabilities.

(3) This section operates without prejudice to the right of the lessor or grantor, or the persons deriving title under the lessor or grantor, to follow the trust property or any part thereof or any property representing the same into the hands of the persons amongst whom the same may have been respectively distributed, and applies notwithstanding anything to the contrary in the instrument, if any, creating the trust.

(4) In this section "lease" includes a sublease and an agreement for a lease or sublease and any instrument giving any such indemnity as aforesaid or varying the liabilities under the lease; "grant" applies to a grant whether the rent is created by limitation, grant, reservation, or otherwise, and includes an agreement for a grant and any instrument giving any such indemnity as aforesaid or varying the liabilities under the grant; and "lessee" and "grantee" include persons respectively deriving title under them.

35. Protection against creditors by means of advertisements-(1) Where a trustee has given notice by advertisement published at least once in a newspaper circulating in each locality in which in the opinion of the trustee claims are likely to arise requiring creditors to send to the trustee, within the time fixed in the notice, particulars of their claims to which this section applies and warning them of the consequences of their failure to do so, then, at the expiration of that time or at any time thereafter the trustee may administer or transfer or distribute the property or any part thereof to which the notice relates to or among the persons entitled thereto having regard only to the claims, whether formal or not, of which the trustee then has notice; and he shall not, as respects the property so administered or transferred or distributed, be liable to any person of whose claim the trustee has not had notice at the time of the administration or transfer or distribution:

Provided that nothing in this section shall prejudice any right which the person may have to follow the property or any part thereof or any property representing the same into the hands of any person who may have received it.

(2) The time to be fixed as aforesaid by any such notice shall not be less than one month from the date on which the notice is given:

Provided that where the notice is given in a newspaper circulating mainly outside New Zealand the time to be fixed as aforesaid shall be not less than two months.

(3) In any case where the personal representative of a deceased person gives any such notice, the localities specified in subsection one of this section shall include each locality in which the deceased resided or carried on business at any time during the year immediately preceding his death.

(4) Where the trustee is in doubt as to what advertisements should be published under this section he may apply to the Court for directions.

(5) Any advertisement published under this section may relate to more than one estate or trust property.

(6) This section shall apply notwithstanding anything to the contrary in the instrument, if any, creating the trust.

(7) This section shall apply to the following claims by creditors against a trustee:

(a) Claims against or in respect of the estate of the deceased person or the trust property:

(b) Claims against the trustee personally by reason of his being under any liability in respect of which he is entitled to reimburse himself out of the estate or property that he is administering for all expenses which he may incur in respect of the liability.

Cf. Trustee Act 1925, s. 27 (U.K); 1908, No. 159, s. 50; 1952, No. 56, s. 25 (1), (2)

36. Protection. in regard to notice-A trustee acting for the purposes of more than one trust shall not, in the absence of fraud, be affected by notice of any instrument, matter, fact, or thing in relation to any particular trust if he has obtained notice thereof merely by reason of his acting or having acted for the purposes of another trust.

37. Exoneration of trustees in respect of certain powers of attorney-A trustee acting or paying money in good faith in reliance on any power of attorney and on a statutory declaration or other sufficient evidence that the power of attorney has not been revoked shall not be liable for any such act or payment by reason of the fact that at the time of the act or payment, the person who gave the power of attorney was subject to any disability, or bankrupt, or dead, or had done or suffered some act or thing to avoid the power, if this fact was not known to the trustee at the time of his so acting or paying:

(a) Nothing in this section shall affect the right of any person entitled to the money against the person to whom the payment is made:

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

38. Implied indemnity of trustees-(1) A trustee shall 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 bank, broker, or other person with whom any trust money 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.

(2) A trustee may reimburse himself or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers; but, except as provided in this Act or any other Act or as agreed by the persons beneficially interested under the trust, no trustee shall be allowed the costs of any professional services performed by him in the execution of the trusts or powers unless the contrary is expressly declared by the instrument .creating the trust:

Provided that the Court may on the application of the trustee allow such costs as in the circumstances seem just.

39. Protection of trustee who pays trust money to bankrupt in good faith and without knowledge of bankruptcy-(1) If a trustee in good faith, without negligence, and without actual knowledge of the bankruptcy of any person, pays or transfers to or to the order of that person any trust money or trust property which he would have been entitled to receive (whether as a beneficiary or otherwise) if he had not been adjudged bankrupt, the trustee shall not be liable to the assignee in bankruptcy of the estate of the bankrupt for any money so paid or any property so transferred:

Provided that nothing in this section shall prejudice the right of the assignee in bankruptcy to follow the money or property or any part thereof into the hands of the persons who have received the same.

(2) For the purposes of this section a trustee shall not be deemed to have actual knowledge of the bankruptcy of any person by reason merely of the fact that notice of the adjudication has been published in any newspaper or in the Gazette.

(3) This section applies with respect to payments of money or transfers of property made by a trustee before or after the commencement of this Act.

[39A. Protection of trustee in handing over chattels to life tenant-(1) Where any chattels are, under the provisions of any will, bequeathed to any person for life or for any limited interest, the trustee may cause an inventory to be made of the chattels, which inventory shall be signed by that person and retained by the trustee, and a copy of the inventory shall be delivered to that person.

(2) The trustee may thereupon deliver the chattels to that person on such terms and conditions as the trustee thinks fit and shall not thereafter be bound to see to the repair or insurance of the chattels, and shall not be subject to any liability whatsoever by reason of the loss or destruction of the chattels or the neglect of that person to effect any such repairs or insurance.

(3) A copy of any such inventory, signed by that person and by the trustee, shall be deemed to be an instrument within the meaning of the Chattels Transfer Act 1924, and may be registered accordingly.]

40. Power to apply income for maintenance, etc., and to accumulate surplus income during a minority-(1) Where any property is held by a trustee in trust for any person for any interest whatsoever, whether vested or contingent, then, subject to any prior interests or charges affecting that property,-

(a) During the infancy of any such person, if his interest so long continues, the trustee may, at his sole discretion, pay to his parent or guardian, if any, or otherwise apply for or towards his maintenance or education (including past maintenance or education) or his advancement or benefit, the whole or such part, if any, of the income of that property as may, in all the circumstances, be reasonable, whether or not there is-

(ii) Any person bound by law to provide for his maintenance, education, advancement, or benefit: and;

(b) If the person on attaining the age of twenty-one years has not a vested interest in that income, the trustee shall thenceforth pay the income of that property and of any accretion thereto under subsection two of this section to him until he either attains a vested interest therein or dies, or until failure of his interest:

Provided that in deciding whether the whole or any part of the income of the property is during a minority to be paid or applied for the purposes aforesaid, the trustee shall have regard to the age of the infant and his requirements and generally to the circumstances of the case, and in particular to what other income, if any, is applicable for the same purposes; and where the trustee has notice that the income of more than one fund is applicable for those purposes, then, so far as practicable, unless the entire income of the funds is paid or applied as aforesaid or the Court otherwise directs, a proportionate part only of the income of each fund shall be so paid or applied.

(2) During the infancy of any such person, if his interest so long continues, the trustee shall accumulate all the residue of that income in the way of compound interest by investing the same and the resulting income thereof from time to time in authorised investments, and shall hold those accumulations as follows:

(i) Attains the age of twenty-one years, or marries under that age, and his interest in the income during his infancy or until his marriage is a vested interest: or

(ii) On attaining the age of twenty-one years or on marriage under that age becomes entitled to the property from which the income arose in fee simple absolute or determinable, or absolutely -

the trustee shall hold the accumulations in trust for that person absolutely, but without prejudice to any provision with respect thereto contained in any settlement by him made under any statutory powers during his infancy, and so that the receipt of that person after marriage, and though still an infant, shall be a good discharge; and

(b) In any other case the trustee shall, notwithstanding that that person had a vested interest in the income, hold the accumulations as an accretion to the capital of the property from which the accumulations arose and as one fund with that capital for all purposes, -

but the trustee may, at any time during the infancy of that person if his interest so long continues, apply those accumulations or any part thereof, as if they were income arising in the then current year.

(3) This section applies in the case of a contingent interest only if the limitation or trust carries the intermediate income of the property but it applies to a future or contingent legacy by the parent of, or a person standing in the place of a parent to the legatee, if and for such period as, under the general law, the legacy carries interest for the maintenance of the legatee, and in any such case as last aforesaid the rate of interest shall (if the income available is sufficient and subject to any rules of Court to the contrary) be four per cent per annum.

(4) This section applies to a vested annuity in like manner as if the annuity were the income of property held by a trustee in trust to pay the income thereof to the annuitant for the same period for which the annuity is payable, save that in any case accumulations made during the infancy of the annuitant shall be held in trust for the annuitant or his personal representatives absolutely.

41. Power to apply capital for maintenance, etc.- A trustee may at any time or times pay or apply any capital money or other capital asset subject to a trust, for the maintenance or education (including past maintenance or education), or the advancement or benefit, in such manner as he may in his absolute discretion think fit, of any person entitled to the capital of the trust property or of any share thereof, whether absolutely or contingently on his attaining any specified age or on the occurrence of any other event, or subject to a gift over on his death under any specified age or on the occurrence of any other event, and whether in possession or in remainder or reversion, and any such payment or application may be made notwithstanding that the interest of that person is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which he belongs:

(a) The money or asset so paid or applied for the maintenance, education, advancement, or benefit of any person shall not exceed altogether half of the presumptive or vested share or interest of that person in the trust property where the value of that share or interest exceeds one thousand pounds, and in any other case shall not exceed altogether five hundred pounds in amount or value; and

(b) If that person is or becomes absolutely and indefeasibly entitled to a share in the trust property the money or asset so paid or applied shall be brought into account as part of that share; and

(c) No such payment or application shall be made so as to prejudice any person entitled to any prior life or other interest, whether vested or contingent, in the money or asset paid or applied unless that person is in existence and of full age and consents in writing to the payment or application, or unless the Court, on the application of the trustee, so orders.

42. Protective trusts-(1) Where any income, including an annuity or other periodical income payment, is directed to be held on protective trusts for the benefit of any person (in this section called the principal beneficiary) for the period of his life or for any less period, then during that period (in this section called the trust period) the said income shall, without prejudice to any prior interest, be held on the following trusts, namely:

(a) Upon trust for the principal beneficiary during the trust period or until he, whether before or after the termination of any prior interest, does or attempts to do or suffers any act or thing, or until any event happens, other than an advance under any statutory or express power, whereby, if the said income were payable during the trust period to the principal beneficiary absolutely during that period, he would be deprived of the right to receive the same or any part thereof, in any of which cases, as well as on the termination of the trust period, whichever first happens, this trust of the said income shall fail or determine:

(b) If the trust aforesaid fails or determines during the subsistence of the trust period, then, during the residue of that period, the said income shall be held upon trust for the application thereof for the maintenance or support, or otherwise for the benefit, of all or any one or more exclusively of the other or others of the following persons, that is to say:

(i) The principal beneficiary and his or her wife or husband, if any, and his or her children or more remote issue, if any: or

(ii) If there is no wife or husband or issue of the principal beneficiary in existence, the principal beneficiary and the persons who would, if he were actually dead, be entitled to the trust property or the income thereof or to the annuity fund, if any, or arrears of the annuity, as the case may be;

as the trustee in his absolute discretion, without being liable to account for the exercise of such discretion, thinks fit.

(2) This section shall not apply to trusts coming into operation before the commencement of this Act, and has effect subject to any variation of the implied trusts aforesaid contained in the instrument creating the trust.

(3) Nothing in this section shall operate to validate any trust which would, if contained in the instrument creating the trust, be liable to be set aside.

43. Power of appointing new trustees-(1) Where a trustee (whether original or substituted, and whether appointed by the Court or otherwise)-

(b) Remains out of New Zealand for the space of twelve months during which no delegation of any trusts, powers, or discretions vested in him as such trustee remains in operation under section thirty-one of this Act; or

(g) Being a corporation, has ceased to carry on business, is in liquidation, or is dissolved, then-

the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by deed appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the first-mentioned trustee.

(2) On the appointment of a trustee or trustees for the 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, and whether or not new trustees are or are to be appointed for other parts of the trust property; and any existing trustee may be appointed or remain one of the 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 unless there will be either a trustee corporation or at least two individuals to act as 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) Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, as if he were dead, or, in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly.

(4) The power of appointment given by subsection one of this section or any similar previous enactment to the personal representatives of a last surviving or continuing trustee shall be and shall be deemed always to have been exercisable by the executors for the time being (whether original or by representation) of that surviving or continuing trustee who have proved the will of their testator or by the administrators for the time being of that trustee without the concurrence of any executor who has renounced or has not proved:

Provided that a sole or last surviving executor intending to renounce, or all the executors where they all intend to renounce, shall have and shall be deemed always to have had power, at any time before renouncing probate, to exercise the power of appointment given by this section, or by any similar previous enactment, if willing to act for that purpose and without thereby accepting the office of executor.

(5) Where a sole trustee, other than a trustee corporation, is or has been originally appointed to act in a trust, or where, in the case of any trust, there are not more than three trustees (none of them being a trustee corporation) either original or substituted and whether appointed by the Court or otherwise, then and in any such case-

(a) The person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or

(b) If there is no such person, or no such person able and willing to act, then the trustee or trustees for the time being -

may, by writing, appoint a person or persons (whether or not being the person or persons exercising the power) to be an additional trustee or additional trustees, but it shall not be obligatory to appoint any additional trustee, unless the instrument, if any, creating the trust, or any statutory enactment provides to the contrary.

(6) Every new trustee appointed under this section 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 discretion, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

(7) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee whether sole or otherwise in a will, and who dies 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.

(8) The provisions of this section relative to a person nominated for the purpose of appointing new trustees apply whether the appointment is made in a case specified in this section or in a case specified in the instrument, if any, creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument.

[(9) In this section the term "trustee" does not include a personal representative as such.]

Cf. 1908, No. 200, s. 78; Trustee Act 1925, ss 36, 37 (U.K.); Trustee Act 1925, s. 6 (10) (N.S.W.)

44. Evidence as to a vacancy in a trust-(1) A statement contained in any instrument coming into operation after the commencement of this Act by which a new trustee is appointed for any purpose connected with land as to how a vacancy in the office of trustee occurred shall, in favour of a purchaser of the land, be conclusive evidence of the matter stated.

(2) In favour of any such purchaser any appointment of a new trustee depending on that statement, and any vesting declaration, express or implied, consequent on the appointment shall be valid.

(a) If one of them by deed declares that he is desirous of being discharged from the trust, and

(b) 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 of the trust property in the co-trustees alone-

then, subject to the provisions of subsection three of this section, 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 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 and done.

(3) Except where only one trustee was originally appointed, a trustee shall not be discharged under subsection one of this section unless there will be either a trustee corporation or at least two individuals to act as trustees to perform the trust.

46. Discharge of trustee with assistance of Court or Registrar-(1) Where any trustee is desirous of being discharged from his trust he shall be entitled to retire therefrom on passing his accounts before the Registrar, and giving notice of his retirement to his co-trustees (if any) and to such other person (if any) as is empowered to appoint new trustees.

(2) If such co-trustees, or such. other person as aforesaid empowered to appoint new trustees, or any of them, refuse or neglect to appoint a new trustee or to consent to such appointment in place of the trustee so retiring, or if the retiring trustee is the sole trustee having power to appoint a new trustee, but the exercise of that power is impracticable or difficult without the assistance of the Court, it shall be lawful for the retiring trustee to apply to the Court for the appointment of a new trustee in his place.

(3) The Court may, upon any such application, make an order appointing some proper person as trustee in place of the trustee so desirous of being discharged from his trust, and direct any accounts and inquiries to be made, and make an order discharging the trustee from the trust and from all liability in respect thereof, and may make such order as to costs or otherwise as it thinks fit, and may exercise any of the powers contained in Part V of this Act; and the person who upon the making of the order becomes trustee shall have the same rights and powers as he would have had if appointed by judgment in an action duly instituted.

(4) If on any such application the Court thinks proper to appoint the Public Trustee to be trustee instead of the retiring trustee, it shall be the duty of the Public Trustee to undertake the trust.

47. Vesting of trust property in new or continuing trustees-(1) Where by a deed a new trustee is appointed to perform any trust, then-

(a) If the deed contains a declaration by the appointor to the effect that, any estate or interest in any land that is subject to the trust and is not under the Land Transfer Act 1952 or excluded from the operation of this section by subsection four thereof or in any chattel so subject, or the right to recover or receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become or are the trustees for performing the trust, the deed shall operate, without any conveyance or assignment, to vest in those persons as joint tenants and for the purposes of the trust the estate or interest or right to which the declaration relates: and

(b) If the deed is made after the commencement of this Act and does not contain such a declaration, the deed shall, subject to any express provision to the contrary therein contained, operate as if it had contained such a declaration by the appointor extending to all the estates, interests, and rights with respect to which a declaration could have been made.

(2) Where by a deed a retiring trustee is discharged under the statutory power without a new trustee being appointed, then-

(a) If the deed contains such a declaration as aforesaid by the retiring and continuing trustees, and by the other person (if any) empowered to appoint trustees, the deed shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate or interest or right to which the declaration relates; and

(b) If the deed is made after the commencement of this Act and does not contain such a declaration, the deed shall, subject to any express provision to the contrary therein contained, operate as if it had contained such a declaration by such persons as aforesaid extending to all the estates, interests, and rights with respect to which a declaration could have been made.

(3) An express vesting declaration, whether made before or after the commencement of this Act, shall, notwithstanding that the estate or interest or right to be vested is not expressly referred to, and provided that the other statutory requirements were or are complied with, operate and be deemed always to have operated (but without prejudice to any express provision to the contrary contained in the deed of appointment or discharge) to vest in the persons respectively referred to in subsections one and two of this section, as the case may require, such estates, interests, and rights as are capable of being and ought to be vested in those persons.

(a) To land conveyed by way of mortgage for securing money subject to the trust, except land conveyed on trust for securing debentures or debenture stock:

(b) To land held under a lease (including a sublease and an agreement for a lease or sublease) which contains any covenant, condition, or agreement against assignment or disposing of the land without licence or consent, unless (before the execution of the deed containing expressly or impliedly the vesting declaration) the requisite licence or consent has been obtained, or unless (by virtue of any statute or rule of law) the vesting declaration, express or implied, would not operate as a breach of covenant or give rise to a forfeiture:

(c) To any share, stock, annuity, or property which is transferable only in books kept by a company or other body, or in manner directed by or under any Act.

(5) For purposes of registration of the deed in any registry, the person or persons making the declaration expressly or impliedly 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.

48. Corporations acting as trustees-(1) Any trustee corporation may be appointed and may lawfully act as the sole trustee in respect of any trust, notwithstanding that the instrument creating the trust may provide for or direct the appointment of two or more trustees. Nothing in this subsection shall prevent any other corporation from acting as a trustee in accordance with any authority vested in it in that behalf, whether by its memorandum of association or otherwise:

Provided that no corporation shall administer the estate of any deceased person unless expressly authorised to do so by any Act.

(2) This section shall not permit the appointment of a corporation as trustee if the instrument creating the trust forbids the appointment of the corporation.

(3) This section shall extend to all trusts and instruments, and to all appointments of trustees, whether created or made before or after the commencement of this Act.

49. Advisory trustees may be appointed to assist responsible trustee-(1) In the administration of any trust property any trustee may act, to the extent hereinafter provided, with an advisory trustee, which term includes, in its application to the estate of a mentally defective person, an advisory committee or advisory administrator of the estate; and also includes, in its application to the estate or any part of the estate of any person in respect of whom a protection order is made under the Aged and Infirm Persons Protection Act 1912, an advisory manager of the estate, or any part thereof.

(2) An advisory trustee may be appointed in respect of all or any part of the trust property -

(a) By the testator, settlor, or other creator of the trust, in the instrument creating the trust: or

(b) By order of the Court made on the application of any beneficiary or trustee or of any person on whose application the Court would have power to appoint a new trustee: or

(d) In respect of the estate of a mentally defective person, by order of the Court made on the application of the committee or person authorised to administer the estate or of any person on whose application the Court would have power under the Mental Health Act 1911 to appoint a committee of that estate: or

(e) In respect of the estate or any part of the estate of any person in respect of whom a protection order is made under the Aged and Infirm Persons Protection Act 1912, by order of the Court made on the application of the manager of the protected estate or of any person on whose application the Court would have power to make the protection order.

(3) Where a trustee acts with an advisory trustee the trust property shall be vested in the first-mentioned trustee (hereafter in this section referred to as the responsible trustee), who shall have the sole management and administration of the estate and its trusts as fully and effectually as if he were the sole trustee:

(a) The responsible trustee may consult the advisory trustee on any matter relating to the trusts or the estate:

(b) The advisory trustee may advise the responsible trustee on any matter relating to the trusts or the estate, but shall not be a trustee in respect of the trust:

(c) Where any advice or direction is tendered or given by the advisory trustee, the responsible trustee may follow the same and act thereon, and shall not be liable for anything done or omitted by him by reason of his following that advice or direction:

(d) In any case where the responsible trustee is of opinion that such advice or direction conflicts with the trusts or any rule of law, or exposes him to any liability, or is otherwise objectionable, he may apply to the Court for directions in the matter, and the decision and order therein shall be final and shall bind the responsible trustee and the advisory trustee, and the Court may make such order as to costs as appears proper:

Provided that nothing in this paragraph shall make it necessary for the responsible trustee to apply to the Court for any such directions:

(e) Where advisory trustees are not unanimous, and tender to the responsible trustee conflicting advice or directions, the responsible trustee may similarly apply to the Court for directions.

(4) No person dealing with the responsible trustee in relation to any trust property shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee, or be affected by notice of the fact that the advisory trustee has not concurred.

(5) Subject to the provisions of the instrument (if any) creating the trust and to any order made by the Court, in any case where remuneration is payable to the trustee of any trust property, remuneration or commission may be paid to both the responsible trustee and the advisory trustee, and subject as aforesaid the amount thereof shall be determined,-

(a) Where the responsible trustee is the Public Trustee or the Maori Trustee, by or under regulations made under [the Public Trust Office Act 1957] or the Maori Trustee Act 1953, as the case may be:

(b) In any other case, by the responsible trustee if he is entitled to fix his own remuneration, or by the Court.

(6) Nothing in [section forty-eight of the Public Trust Office Act 1957] shall prevent the Public Trustee from accepting appointment or acting as trustee in respect of any trust property in respect of which an advisory trustee is appointed under this section.

In subs. (5) (a) the Public Trust Office Act 1957, being the corresponding enactment in force at the date of this reprint, has been substituted for the repealed Public Trust Office Act 1908.

In subs. (6), s. 48 of the Public Trust Office Act 1957, being the corresponding enactment in force at the date of this reprint, has been substituted for subs. (3) of s. 12 of the repealed Public Trust Office Act 1908, as amended by s. 3 of the repealed Public Trust Office Amendment Act 1948. See also the proviso to s. 48 of the Public Trust Office Act 1957.

50. Custodian trustees-(1) Subject to the provisions of this section and to the instrument (if any) creating the trust, any corporation may be appointed to be custodian trustee of any trust in any case where it could be appointed to be trustee, in the same manner as it could be so appointed.

(2) Subject to the provisions of the instrument (if any) creating the trust, where a custodian trustee is appointed of any trust-

(a) The trust property shall be vested in the custodian trustee as if the custodian trustee were sole trustee, and for that purpose vesting orders may, where necessary, be made under this Act:

(b) The management of the trust property and the exercise of all powers and discretions exercisable by the trustee under the trust shall remain vested in the managing trustees as fully and effectually as if there were no custodian trustee:

(c) The sole function of the custodian trustee shall be to get in and hold the trust property, and invest its funds, and dispose of the assets, as the managing trustees in writing direct, for which purpose the custodian trustee shall execute all such documents and perform all such acts as the managing trustees in writing direct:

(d) For the purposes of paragraph (c) of this subsection a direction given by the majority of the managing trustees where there are more than one, shall be deemed to be given by all the managing trustees:

Provided that if the custodian trustee is of opinion that any such direction conflicts with the trusts or the law, or exposes the custodian trustee to any liability, or is otherwise objectionable, the custodian trustee may apply to the Court for directions under section sixty-six of this Act; and any order giving any such directions shall bind both the custodian trustee and the managing trustees; and the Court may make such order as to costs as it thinks proper:

(f) The custodian trustee shall not be liable for any act or default on the part of any of the managing trustees:

(g) All actions and proceedings touching or concerning the trust property shall be brought or defended in the name of the custodian trustee at the written direction of the managing trustees, and the custodian trustee shall not be liable for the costs thereof apart from the trust property:

(h) No person dealing with the custodian trustee shall be concerned to inquire as to the concurrence or otherwise of the managing trustees, or be affected by notice of the fact that the managing trustees have not concurred:

(i) The power of appointing new trustees, when exercisable by the trustee, shall be exercisable by the managing trustees alone, but the custodian trustee shall have the same power as any other trustee of applying to the Court for the appointment of a new trustee.

(3) On the application of the custodian trustee, or of any of the managing trustees, or of any beneficiary, and on satisfactory proof that it is the general wish of the beneficiaries, or that on other grounds it is expedient to terminate the custodian trusteeship, the Court may make an order for that purpose, and may also make such vesting orders and give such directions as in the circumstances seem to the Court to be necessary or expedient.

(4) Subject to the provisions of the instrument (if any) creating the trust and to any order made by the Court, in any case where remuneration or commission is payable to the trustee of any trust property, remuneration may be paid to both the custodian trustee and the managing trustees, and subject as aforesaid the amount thereof shall be determined, -

(a) As regards the custodian trustee in any case where the custodian trustee is the Public Trustee or the Maori Trustee, by or under regulations made under [the Public Trust Office Act 1957] or the Maori Trustee Act 1953 the case may be:

(b) In any other case, by the managing trustees if they are entitled to fix their own remuneration, or by the Court.

(5) Nothing in [section forty-eight of the Public Trust Office Act 1957] shall prevent the Public Trustee from accepting appointment or acting as custodian trustee in respect of any trust property in respect of which managing trustees are appointed under this section.

In subs. (4) (a) the Public Trust Office Act 1957, being the corresponding enactment in force at the date of this reprint, has been substituted for the repealed Public Trust Office Act 1908.

In subs. (5), s. 48 of the Public Trust Office Act 1957, being the corresponding enactment in force at the date of this reprint, has been substituted for subs (3) of s. 12 of the repealed Public Trust Office Act 1908, as amended by s. 3 of the repealed Public Trust Office Amendment Act 1948. See also the proviso to s. 48 of the Public Trust Office Act 1957.

51. Power of Court to appoint new trustees-(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing 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.

(2) In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who -

(a) Has been held by the Court to have misconducted himself in the administration of the trust: or

(b) Is convicted, whether summarily or on indictment, of a crime involving dishonesty as defined by section two hundred and thirty-seven of the Crimes Act 1908: or

(c) Is a mentally defective person within the meaning of the Mental Health Act 1911, or whose estate or any part thereof is subject to a protection order made under the Aged and Infirm Persons Protection Act 1912: or

(e) Is a corporation which has ceased to carry on business, or is in liquidation, or has been dissolved.

(3) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

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

(5) Every trustee appointed by the Court shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, 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.

52. Vesting orders of land-(1) Subject to the provisions of subsections two and three of this section, in any of the following cases, namely-

(a) Where the Court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of Court under any statutory or express power;

(b) Where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person-

(iv) Being a corporation, has ceased to carry on business or is in liquidation or has been dissolved;

(c) Where it is uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any interest in land;

(d) Where it is uncertain whether the last trustee known to have been entitled to or possessed of any interest in land is alive or dead;

(e) Where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;

(f) Where a deceased person was entitled to or possessed of any interest in land and his personal representative is under disability;

(g) Where a trustee jointly or solely entitled to or possessed of any interest in 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 interest or a release of the right, to convey the land or interest or to release the right, and has wilfully refused or neglected to convey the land or interest or release the right for twenty-eight days after the date of the requirement;

(h) Where land or any interest therein is vested in a trustee whether by way of mortgage or otherwise, and it appears to the Court to be expedient,

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

(2) Where any such order is consequential on the appointment of a trustee, the land or interest therein shall be vested for such estate as the Court may direct in the persons who on the appointment are the trustees.

(3) Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee is under disability or out of the jurisdiction of the Court or cannot be found, or (being a corporation) has ceased to carry on business or is in liquidation or has been dissolved, the land, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the Court may appoint.

Cf. Trustee Act 1925, s. 44 (U.K.); 1908, No. 200, ss. 3, 4, 8, 9, 11, 12, 13, 15,16, 17, 19

53. Orders as to contingent rights of unborn persons-Where any interest in land is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence would, in respect thereof, become entitled to or possessed of that interest on any trust, the Court may make an order releasing the land or interest therein from the contingent right, or may make an order vesting in any person the estate or interest to or of which the unborn person or class of unborn persons would, on coming into existence, be entitled or possessed in the land.

54. Vesting order in place of conveyance by infant mortgagee-Where any person entitled to or possessed of any interest in land, or entitled to a contingent right in land, by way of security for money, is an infant, the Court may make an order vesting or releasing or disposing of the interest in the land or the right in like manner as in the case of a trustee under disability.

55. Vesting order consequential on order for sale or mortgage of land-Where the Court gives a judgment or makes an order directing the sale or mortgage of any land, every person who is entitled to or possessed of any interest in the land, or entitled to a contingent right therein, 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 for the purposes of this Act, and the Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate or interest as the Court thinks fit in the purchaser or mortgagee or in any other person.

56. Vesting order consequential on judgment for specific performance-Where a judgment is given for the specific performance of a contract concerning any interest in land, or for sale or exchange of any interest in land, or generally where any judgment is given for the conveyance of any interest in land, either in cases arising out of the doctrine of election or otherwise, the Court may declare-

(a) That any of the parties to the action are trustees of any interest in the land or any part thereof within the meaning of this Act; or

(b) That the interests of unborn persons who might claim under any party to the action, or under the will or voluntary settlement of any deceased person who was during his lifetime a party to the contract or transaction 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 thereupon the Court may make a vesting order relating to the rights of those persons, born and unborn, as if they had been trustees.

57. Effect of vesting order-(1) A vesting order under any of the foregoing provisions shall, in the case of a vesting order consequential on the appointment of a trustee, have the same effect-

(a) As if the persons who before the appointment were the trustees, if any, had duly executed all proper conveyances of the land for such estate or interest as the Court directs; or

(b) If there is no such person or no such person of full age and full mental capacity, as if such person had existed and been of full age and full mental capacity and had duly executed all proper conveyances of the land for such estate or interest 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 age and full mental capacity and had executed a conveyance or release to the effect intended by the order.

(2) This section shall, as regards land under the Land Transfer Act 1952, be read and construed subject to section ninety-nine of that Act.

58. Power to appoint person to convey-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 any interest therein or release the contingent right, and a conveyance, or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.

59. Vesting orders as to stock and things in action-(1) Subject to the provisions of subsections two, three, and four of this section, in any of the following cases, namely-

(a) Where the Court appoints or has appointed a trustee, or where a trustee has been appointed out of Court under any statutory or express power;

(b) Where a trustee entitled, whether by way of mortgage or otherwise, alone or jointly with another person to stock or to a thing in action-

(iv) Being a corporation, has ceased to carry on business or is in liquidation or has been dissolved; or

(v) Neglects or refuses to transfer stock or receive the dividends or income thereof, or to sue for or recover a thing in action, according to the direction of the person absolutely entitled thereto for twenty-eight days next after a request in writing has been made to him by the person so entitled; or

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

(d) Where it is uncertain whether a trustee entitled alone or jointly with another person to stock or to a thing in action is alive or dead;

(e) Where there is no personal representative of a deceased person entitled to stock or to a thing in action or where it is uncertain who is the personal representative of a deceased person who is entitled to stock or to a thing in action;

(f) Where stock is standing in the name of a deceased person whose personal representative is under disability;

(g) Where stock or a thing in action is vested in a trustee whether by way of mortgage or otherwise and it appears to the Court to be expedient -

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 the thing in action in any person as the Court may appoint.

(2) Where any such order is consequential on the appointment of a trustee, the right shall be vested in the persons who, on the appointment, are the trustees.

(3) Where the person whose right is dealt with by any such 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.

(4) No such order shall be made vesting shares that are not fully paid up in any person unless he applies for the order or consents to the making of the order.

(5) 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; and without restricting the powers of the Court under this subsection it is hereby declared that the person appointed to make or join in making a transfer of stock may be some proper officer of the bank or company or society or association in whose books the stock is to be transferred.

(6) 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 all banks, societies, associations, companies, and persons shall obey every order under this section according to its tenor.

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

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

Cf. Trustee Act 1925, s. 51 (U.K.); 1908, No. 200, ss. 5, 6, 7, 10, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 40, 44

60. Vesting orders in respect of shares in ships and industrial property-The provisions of this Act as to vesting orders shall apply to shares in ships registered in New Zealand under the Shipping and Seamen Act 1952, and to patents, designs, trade marks, and copyright, as if they were stock.

61. Vesting orders of charity property-The powers conferred by this Act as to vesting orders may be exercised for vesting any interest in any land, stock, or thing 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.

62. Orders made upon certain allegations to be conclusive evidence-Where a vesting order is made as to any land under this Act or under any other Act founded on an allegation of any of the following matters namely -

(b) That a trustee or mortgagee or the personal representative of or other person deriving title under a trustee or mortgagee is out of the jurisdiction of the Court or cannot be found, or (being a corporation) has ceased to carry on business or is in liquidation or has been dissolved: or

(c) That it is uncertain which of two or more trustees, or which of two or more persons interested in a mortgage, was the survivor: or

(d) That it is uncertain whether the last trustee or the personal representative of or other person deriving title under a trustee or mortgagee, or the last surviving person interested in a mortgage is living or dead: or

(e) That any trustee or mortgagee has died intestate without leaving a person beneficially interested under the intestacy or has died and it is not known who is his personal representative or the person interested -

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 surrender or the payment of costs occasioned by any such order if improperly obtained.

63. Orders liable to stamp duty-(1) Every order made under this Act which has the effect of a conveyance or assignment of any land, or a transfer of any stock which can only be transferred by stamped deed or instrument, shall be chargeable with the like amount of stamp duty as it would have been chargeable with if it had been executed or made by the person seised or possessed of the land or entitled to the stock.

(2) Every such order shall be duly stamped for denoting the payment of the said duty.

64. Power of Court to authorise dealings with trust property and variations of trust-(1) Subject to the provisions of subsections four and five of section two of this Act, where in the management or administration of any property vested in a trustee, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, retention, expenditure, or other transaction, is in the opinion of the Court expedient, but it is inexpedient or difficult or impracticable to effect the same without the assistance of the Court, or the same cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument, if any, or by law, the Court may by order confer upon the trustee, 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 authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

(2) Where it is desired to rearrange the trusts to which any property is subject, but the rearrangement cannot be effected because those who take or may take any beneficial interest under the trusts include unborn or unascertained or unknown persons or persons under a disability, the Court may approve the rearrangement on behalf of the unborn or unascertained or unknown persons and the persons under a disability if the rearrangement is not to their detriment; and in determining whether any such rearrangement is to the detriment of any person the Court may have regard to all benefits which may accrue to him directly or indirectly in consequence of the rearrangement, including the welfare and honour of the family to which he belongs. Any rearrangement so made shall be binding on all persons on whose behalf it is approved by the Court.

(3) The Court may from time to time rescind or vary any order made under this section, or may make any new or further order:

Provided that no such rescission or variation of any order shall affect any act or thing done in reliance on the order before the person doing the act or thing became aware of the application to the Court to rescind or vary the order.

(4) An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

As to the exercise by the Compensation Court of the powers conferred on the Supreme Court by this section, see s. 62 (2) of the Workers' Compensation Act 1956.

65. Power of Court to direct sale or lease-(1) Notwithstanding anything to the contrary in the instrument (if any) creating the trust, and notwithstanding the wishes of any trustee or person beneficially interested, the Court may, in any proceedings in which all trustees and persons who are or may be beneficially interested are parties or are represented, direct a sale or lease of any property subject to the trust on such terms, and subject to such provisions and conditions (if any) as the Court may think fit.

66. Right of trustee to apply to Court for directions-(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of any such property, or respecting the exercise of any power or discretion vested in the trustee.

(2) Every such application shall be served upon, and the hearing may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

67. Persons entitled to apply to Court- (1) An order under this Act for the appointment of a new trustee or concerning any property subject to a trust may be made on the application of any person beneficially interested in the property, whether under disability or not, or on the application of any person duly appointed trustee thereof or intended to be so appointed.

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

68. Applications to Court to review acts and decisions of trustee-(1) Any person who is beneficially interested in any trust property, and who is aggrieved by any act or omission or decision of a trustee in the exercise of any power conferred by this Act, or who has reasonable grounds to anticipate any such act or omission or decision of a trustee by which he will be aggrieved, may apply to the Court to review the act or omission or decision or to give directions in respect of the anticipated act or omission or decision; and the Court may require the trustee to appear before it, and to substantiate and uphold the grounds of the act or omission or decision that is being reviewed, and may make such order in the premises as the circumstances of the case may require:

(a) Disturb any distribution of the trust property made without breach of trust before the trustee became aware of the making of the application to the Court:

(b) Affect any right acquired by any person in good faith and for valuable consideration.

(a) If any question of fact is involved, direct how the question shall be determined:

(b) If the Court is being asked to make an order that may prejudicially affect the rights of any person who is not a party to the proceedings, direct that any such person shall be made a party to the proceedings.

69. Protection of trustee while acting under direction of Court-Any trustee acting under any direction of the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the direction, notwithstanding that the order giving the direction is substantially invalidated, overruled, set aside, or otherwise rendered of no effect:

Provided that this subsection shall not extend to indemnify any trustee in respect of any act done in accordance with any such direction if he has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the direction or in acquiescing in the Court making the order giving the direction.

70. Powers of Court to give judgment in absence of a trustee-Where in any proceedings 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 proceedings 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 proceedings in any other character.

71. Power of Court to charge costs on trust estate-The Court may order the costs and expenses of and incidental to any application for any order under this Act, or of and incidental to any such order, or any conveyance or assignment in pursuance thereof, to be raised and paid out of the property 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.

72. Commission -(1) The Court may, out of the property subject to any trust, allow to the trustee for the time being, in passing his accounts, any such commission or percentage, not exceeding five pounds per cent, for his pains and trouble as is just and reasonable.

(2) No such allowance shall be made to any trustee without a special order of the Court on the final passing of accounts, unless the Court otherwise orders.

(3) Where the Court allows a commission or percentage under this section in any case in which there are or have been two or more trustees, whether acting at the same time or at different times, the Court may, in its discretion, apportion the total amount allowed among the trustees in such manner as it thinks fit, and, in particular, may divide the amount in unequal shares or may make the allowance to one or more of the trustees to the exclusion of the other or others.

73. Power to relieve trustee from personal liability-If it appears to the Court that a trustee, whether appointed by the Court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed the breach, then the Court may relieve him either wholly or partly from personal liability for the same.

74. Power to make beneficiary indemnify for breach of trust-(1) Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the Court may, if it thinks fit, and notwithstanding that the beneficiary may be a married woman 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 persons claiming through him.

(2) This section applies to breaches of trust committed as well before as after the commencement of this Act.

75. Barring of claims-(1) Where a trustee desires to reject a claim that has been made, or that he has reason to believe may be made, against -

(b) The trustee personally by reason of his being under any liability in respect of which he is entitled to reimburse himself out of the estate or property that he is administering for all expenses which he may incur in respect of the liability -

the trustee may serve upon the person by whom or on whose behalf the claim is made or expected a notice calling upon him, within a period of three months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.

(2) At the expiration of that period the trustee may apply to the Court for an order under subsection three of this section, and shall serve a copy of the application on the person concerned.

(3) If on the hearing of that application that person does not satisfy the Court that he has commenced the proceedings and is prosecuting them with all due diligence, the Court may make an order-

(a) Extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim: and

(b) Imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as to the Court seems just.

(4) This section shall apply to every such claim as aforesaid, whether the claim is or may be made under the Law Reform (Testamentary Promises) Act 1949 or as creditor or next of kin or beneficiary under the trust or otherwise:

Provided that nothing in this section shall apply to any claim under the Family Protection Act 1955, and no order made under this section shall affect any application for revocation of any grant of administration, whether that application is made before or after the order.

(5) Any such notice may be given either by delivering it to the person for whom it is intended or by sending it by post in a registered letter addressed to that person at his usual or last known place of abode or business. Where a notice is sent by post as aforesaid it shall be deemed to be served at the time at which the letter would have been delivered in the ordinary course of post.

(6) On an application by a trustee under this section, the persons beneficially entitled to the estate or property need not be made parties to the proceedings, and no order made by the Court on the application shall prejudice their right to contest the claim of the trustee to be entitled to indemnify himself out of the estate or property that he is administering if they have not been parties to the proceedings in which the order was made.

The powers given by this section are in addition to the powers given to the Public Trustee by s. 105 of the Public Trust Office Act 1957; see subs. (3) of that section.

76. Distribution of shares of missing beneficiaries-(1) Where any real or personal property is held by a trustee and the property or any part thereof cannot be distributed by reason of the fact that it is not known to the trustee whether any person or class of persons who is or may be entitled thereto is in existence or whether any such person or class of persons ever has been in existence or whether any person or any member of any class of persons is alive or dead or where any such person is, the trustee may publish such advertisements (whether in New Zealand or elsewhere) as are appropriate in the circumstances calling upon every such person to send in his claim within a time to be specified in the advertisements, not being less than two months in any case from the date on which the advertisement is published. Where the trustee is in doubt as to what advertisements should be published under this subsection or what notices should be given under subsection two of this section, he may apply to the Court for directions in that regard.

(2) Upon proof by affidavit of the circumstances and of the inquiries that have been made and that such advertisements as aforesaid have been published and that no person to whom the order will relate has sent in any claim, the Court may authorise the trustee to distribute the property or part thereof, subject to such conditions as the Court may impose, as if every person to whom the order relates and every member of any class to which the order relates had died before a date or event specified in the order, whether or not any such person is known to have survived the date or event, and whether or not it is known whether any person or any member of any class has ever been in existence. Any such order may be made notwithstanding that there has not been strict compliance with any directions as to advertisements previously given by the Court.

(3) Any such order shall exonerate the trustee from any further liability in respect of the property or any part thereof distributed in accordance with the order:

Provided that nothing in this subsection shall prejudice any right which any person may have to follow the property or any part thereof or any property representing the same into the hands of the person who has received it.

(4) In making any order under this section no regard shall be had to any presumption which may arise by reason of any person not having been heard of for seven years or more.

(5) Any such order may provide that the order shall not be acted on for such period as is specified in the order, and may provide that the effect of the order shall during that period be advertised in such manner and form as may be specified in the order, or that the order be served upon such person or persons as are specified therein; and in the event of the Court exercising the jurisdiction conferred by this subsection it may in the order direct that the same shall be of no effect in the event of any person specified therein instituting proceedings in New Zealand to enforce his claim and serving the proceeding upon the trustee within such period as is specified in the order.

(6) Any order made under this section may direct how the costs of the order and of advertising under or for the purposes of the order shall be borne.

(7) Nothing in this section shall prejudice the right of the trustee (if he so desires) to distribute under any other law or statutory provision or prejudice the protection thereby afforded when he makes distribution pursuant to any such law or provision.

77. Payment by trustees to Crown-(1) Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may, on filing in the Court nearest to which they or the majority of them reside an affidavit describing the instrument creating the trust and giving particulars of the persons beneficially entitled under the trust according to the best of their knowledge and belief, and on serving a copy of the affidavit on the Secretary to the Treasury, pay the money or transfer the securities (if they can legally be so transferred) to the Crown in the matter of the particular trust, which shall be described in the affidavit by the names of the parties as accurately as may be for the purpose of distinguishing it. All money and securities so paid or transferred shall be administered in the Treasury. All such money and all money derived from securities which have been transferred to or vested in the Crown under this section shall be credited by the Secretary to the Treasury to a deposit account established under section thirty-eight of the Public Revenues Act 1953 to be dealt with as hereafter provided in this Act.

(2) The receipt of the Secretary to the Treasury shall be a sufficient discharge to the trustees for the money or securities paid or transferred to the Crown under this section.

(3) Where money or securities are vested in any persons as trustees, and the majority are desirous of paying or transferring the same to the Crown as aforesaid, but the concurrence of the other or others cannot be obtained, the Court may order the payment or transfer to the Crown to be made by the majority without the concurrence of the other or others.

(4) Where any such money or securities are deposited with any banker, broker, or other depositary, the Court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment or transfer to the Crown.

(5) 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 money and securities so transferred, paid, or delivered.

(6) The Secretary to the Treasury may at any time sell any securities held by the Crown under this section.

(7) Where any securities have been transferred to or deposited with any Registrar under section sixty-seven of the Trustee Act 1908 or under the corresponding provisions of any former enactment and are held by him at the commencement of this Act, those securities shall thereupon vest without transfer or assignment in the Crown.

(8) Where any trustee has obtained or is seeking a discharge in respect of any money or securities under this section or has obtained such a discharge under the corresponding provisions of any former section, the Secretary to the Treasury may at any time require that trustee to give such information in his possession or control as he may require in relation to the persons beneficially entitled to the money or securities, including information as to the steps taken to trace those persons; and if any person refuses or wilfully neglects to give any such information that is in his possession or control when so required, or wilfully gives any false information in answer to any such requisition, he commits an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds.

78. Disposal of funds paid to Crown-(1) At the end of each financial year the Secretary to the Treasury shall publish in the Gazette a statement of all money and securities then held by the Crown under section seventy-seven of this Act, being -

(a) Money which has not previously been credited to the Consolidated Fund under subsection four of this section; and

(b) Securities which were transferred to the Crown within the immediately preceding six years or which were transferred or deposited into or in the name of any Registrar under section sixty-seven of the Trustee Act 1908 within the immediately preceding six years.

(2) Every statement so published in the Gazette shall contain sufficient particulars to show the matters in which the money and securities are held by the Crown and the amount held in respect of each matter.

(3) All money and securities for the time being held by the Crown under section seventy-seven of this Act (whether or not they are held in the Consolidated Fund) shall be so held to attend the order of the Court:

Provided that any such money or securities may be paid or transferred by the Secretary to the Treasury to the person entitled thereto upon his establishing a claim thereto or may be paid or transferred to the person from whom they were received to be held by him as trustee if that person so requests:

Provided also that all costs and expenses reasonably incurred by the Crown or the Secretary to the Treasury in connection with any, such money or securities may be deducted out of the money or securities or out of any other money and securities which are for the time being held by the Crown and are subject to the same trusts.

(4) The Secretary to the Treasury shall from time to time transfer to the Consolidated Fund all money held under section seventy-seven of this Act, being money which was -

(b) Derived from securities which were transferred to the Crown, or transferred or deposited in the name of any Registrar, more than six years previously.

(5) Any money previously transferred to the Consolidated Fund under subsection four of this section which is paid or required to be paid under subsection three of this section may be paid out of the Consolidated Fund without further appropriation than this subsection.

(6) Under no circumstances shall the liability of the Crown or the Secretary to the Treasury in respect of any securities which are transferred to or vested in the Crown under section seventy-seven of this Act exceed the value of those securities and of any other securities and money which are held by the Crown and subject to the same trusts at the time when demand is made for satisfaction of the liability. If the said securities and money are insufficient to meet any such liability, the claimant shall, in respect of any unpaid balance of the liability, have the same rights and remedies against the person beneficially entitled to the securities in respect of which the liability arose as he would if those securities were transferred to that person.

(7) Neither the Crown nor the Secretary to the Treasury shall have the duties or liabilities of a trustee in respect of any money or securities for the time being held by the Crown under section seventy-seven of this Act (whether in the Consolidated Fund or not); and no interest shall be payable by the Crown or the Secretary to the Treasury in respect of any money so held.

(8) Where any money or securities paid or transferred to any claimant under this section are afterwards claimed by any other person, the Crown and the Secretary to the Treasury shall not be responsible for the payment or transfer thereof, but that person shall have recourse against the claimant to whom the money was paid or the securities were transferred.

79. Orders in respect of funds paid to Crown-(1) Upon application made ex parte by such person or persons as are competent or necessary in that behalf, the Court may from time to time make such order as it thinks fit in respect of any money or securities for the time being held by the Crown under section seventy-seven of this Act (whether in the Consolidated Fund or not), and for the payment, transfer, and administration thereof:

Provided that the Court may direct service of the application on such persons as it thinks fit.

(2) Every such order shall have the same authority and effect and shall be subject to rehearing and appeal in the same manner as if it had been made in any action regularly instituted in the Court: and if it appears that any such money or securities cannot be safely distributed without the institution of one or more actions, the Court may direct any such action to be instituted.

80. Indemnity to banks and others-This Act, and every order purporting to be made under this Act, shall be a complete indemnity to all banks, companies, societies, associations, and persons for any acts done pursuant thereto, and it shall not be necessary for any bank, company, society, association, or person to inquire concerning the propriety of the order, or whether the Court had jurisdiction to make it.

81. Operation on bank account of trustees-(1) Where there are more trustees than one, and the trustees, by writing under their hands communicated to a bank at which their account is kept, arrange that the account may be operated upon by cheques or drafts signed by one or more of them, or by one of them and a delegate or delegates named in the writing of another or others of them, the bank shall be entitled to honour and pay the cheques or drafts as if they had been signed by all the trustees, until the bank receives notice in writing of the revocation, by death or otherwise, of the arrangement.

(2) Nothing in this section or in any rule of law shall prevent trustees from opening a bank account named as an imprest account and from authorising any one or more of their number or any other person or persons to operate upon the imprest account.

82. Inclusion of non-charitable and invalid purposes not to invalidate a trust-(1) In this section the term "imperfect trust provision" means any trust under which some non-charitable and invalid as well as some charitable purpose or purposes is or are or could be deemed to be included in any of the purposes to or for which an application of the trust property or any part thereof is by the trust directed or allowed; and includes any provision declaring the objects for which property is to be held or applied, and so describing those objects that, consistently with the terms of the provision, the property could be used exclusively for charitable purposes, but could nevertheless (if the law permitted and the property was not used as aforesaid) be used for purposes which are non-charitable and invalid.

(2) No trust shall be held to be invalid by reason that the trust property is to be held or applied in accordance with an imperfect trust provision.

(3) Every trust under which property is to be held or applied in accordance with an imperfect trust provision shall be construed and given effect to in the same manner in all respects as if-

(b) No holding or application of the trust property or any part thereof to or for any such non-charitable and invalid purpose had been or could be deemed to have been so directed or allowed.

(4) This section shall apply to every trust under which property is to be held or applied in accordance with an imperfect trust provision, whether the trust is declared before or after the commencement of this Act:

Provided that this section shall not apply to any trust declared by the will of any testator dying before, or to any other trust declared before, the twenty-sixth day of October, nineteen hundred and thirty-five (being the date of the passing of the Trustee Amendment Act 1935), if before the commencement of this Act -

(a) The trust has been declared to be invalid by any order or judgment made or given in legal proceedings begun before the commencement of this Act; or

(b) Property subject to the imperfect trust provision or income therefrom has been paid or conveyed to, or applied for the benefit of, or set apart for, the persons entitled by reason of the invalidity of the trust.

[83. Special rules as to apportionment on purchase, sale, or transfer in certain cases-(1) For the purposes of this section-

(a) The term "fixed-income asset" means an asset coming within any of the following classes:

(i) The securities mentioned in paragraphs (a), (c), (d), (e), (f), (g), and (i) of subsection one of section four of this Act:

(ii) Debentures, bonds, and stock (other than shares) in which the trustee is authorised to invest trust money:

(iii) Any other asset bearing interest or carrying the right to a dividend if the interest or dividend is payable at a fixed rate and if the interest or dividend has been paid regularly in respect of the asset for at least five years before the material date and if the trustee has no reason to believe that the interest or dividend in respect of the period to which the apportionment relates will not be paid reasonably promptly after the same falls due:

(b) The term "shares" means shares or stock of any company, whether incorporated in or outside New Zealand, except any such shares or stock which constitutes a fixed income asset in accordance with subparagraph (iii) of paragraph (a) of this sub-section:

(c) An appropriation of shares (whether pursuant to the power conferred by paragraph (j) of subsection one of section fifteen of this Act or otherwise) shall be deemed to be a transfer of those shares to which subsection four of this section applies.

(2) Where any payment received by a trustee in respect of a sale of any fixed-income asset is or includes payment for the right to receive income accrued from that asset at the time of sale, though the income may not then be due, the amount of the accrued income shall, for the purposes of the trust, be deemed to have been received as income in respect of the period during which it so accrued.

(3) Where any payment made by a trustee in respect of a purchase of any fixed-income asset is or includes payment for the right to receive any income accrued from that asset at the time of the purchase, though the income may not then be due, the amount of the accrued income when received shall, for the purposes of the trust, be deemed to have been received as purchase money repaid.

(4) Where a trustee transfers any shares (not being a fixed-income asset) to the person entitled thereto under the trust, then, unless the trustee in his absolute discretion having regard to all the circumstances of the case thinks that it is equitable, practicable, and convenient to make an apportionment, there shall be no apportionment of any dividends which have accrued at the date of transfer but have not then been declared, and no person who would have been beneficially interested in any such dividends if they had been declared and paid to the trustee shall have any claim in respect thereof against the trustee or against the transferee of the shares.

(5) Where a trustee sells any shares that are not a fixed-income asset, no part of the proceeds of the sale shall, for the purposes of the trust, be deemed to have been paid for the right to receive dividends which have accrued in respect of the shares at the time of the sale, but have not then been declared, and there shall accordingly be no apportionment of the proceeds as between capital and income.

(6) Where a trustee purchases any shares that are not a fixed-income asset, no part of the purchase price shall, for the purposes of the trust, be deemed to be paid for the right to receive any dividends which have accrued in respect of the shares at the time of the purchase but have not then been declared, and there shall accordingly be no apportionment of the purchase price as between capital and income, nor shall any part of the dividends received by the trustee be deemed to have been received as purchase money repaid.

(7) Except as herein expressly provided, nothing in this section shall affect the rights and obligations of the trustee or of any other person in respect of apportionment of income on the sale or purchase of any asset or the transfer thereof to any person beneficially entitled thereto.

(8) Anything done by a trustee before the commencement of this section which would have been authorised by this section if then in force shall be deemed to have been authorised by this section.

(9) The provisions of this section shall apply if and so far only 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.]

This section was substituted for the original s. 83 by s. 9 of the Trustee Amendment Act 1957

[83A. Examination of accounts of trust estates administered by trustee corporations - In the case of any trust estate administered by a trustee corporation, a solicitor or accountant authorised in writing by a beneficiary shall be entitled as of right to examine at any reasonable time the accounts of that estate, and for that purpose shall have access to the trustee corporation's books and vouchers (but not the file) relating to that estate, and to the securities and documents of title held by the trustee corporation on account of that estate.

[83B. Audit of other trust estates - (1) Subject to the provisions of any regulations made under this Act, and unless the Court otherwise orders, the condition and accounts of any trust estate (being an estate which is not being administered by a trustee corporation) shall, on an application being made and notice thereof being given in the prescribed manner by or on behalf of any trustee or beneficiary in that estate, be investigated and audited by such solicitor or such member of the New Zealand Society of Accountants as may be agreed on between the applicant trustee and his co-trustees and the Public Trustee, or between the applicant beneficiary and the trustees and the Public Trustee, as the case may be, or, in default of any such agreement, by a solicitor or a member of the New Zealand Society of Accountants appointed by the Public Trustee:

(a) Except with the leave of the Court, such an investigation or audit shall not be required within twelve months after any such previous investigation or audit; and

(b) A beneficiary shall not be appointed under this section to make an investigation or audit; and

(c) The Public Trustee may require the applicant to deposit a sum of money covering the costs of the investigation and audit, as estimated by the Public Trustee, or to secure the same to the Public Trustee's satisfaction before proceeding with the application.

(2) The person making the investigation or audit (in this section called "the auditor") shall have a right of access to the books, accounts, and vouchers of the trustees, and to any securities and documents of title held by them on account of the estate, and may require from them such information and explanations as may be necessary for the performance of his duties.

(3) Upon the completion of the investigation and audit, the auditor shall forward to the applicant, and to every trustee, and to the Public Trustee, a copy of the accounts of the estate, together with a report thereon, and a certificate signed by him to the effect that the accounts correctly show the state of the affairs of the estate, and that he has had the securities of the trust fund investments (if any) produced to and verified by him, or (as the case may be) that such accounts are deficient in such respects as may be specified in that certificate.

(4) Every beneficiary shall, subject to the provisions of any regulations made under this section, be entitled at all reasonable times to inspect and take copies of the accounts, report, and certificate, and, at his own expense, to be furnished with copies thereof or extracts therefrom.

(5) The auditor may be removed by order of the Court: and if any auditor is removed, or resigns, or dies, or becomes bankrupt or incapable of acting before the investigation and audit are completed, a new auditor may be appointed in his place in like manner as the original auditor was appointed.

(6) The remuneration of the auditor and the other expenses of the investigation and audit (including the Public Trustee's charges) shall be such as may be prescribed by regulations under this section or (in the absence of any such prescription) as may be determined by the Court, and shall unless the Court otherwise orders, be borne by the estate; and, in the event of the Court so ordering, such expenses shall be borne by the trustees personally or any of them, or by the applicant, or be apportioned between them or any of them, or between them and any of them and the estate, in such .proportions as the Court thinks just.

(7) If any person having the custody of any books, accounts, vouchers, securities, or documents to which the auditor has a right of access under this section fails or refuses to allow him to have access thereto, or in anywise obstructs the investigation or audit, the auditor may apply to the Court, and thereupon the Court shall make such order as it thinks just.

(8) Subject to any rules of Court, applications under or for the purposes of this section to the Court shall be made to a judge in Chambers.

(9) If any person in any statement of accounts, report, or certificate required for the purposes of this section wilfully makes a statement that is false in any material particular, he shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, and in either case to a fine not exceeding one hundred pounds instead of or in addition to that imprisonment.

(10) The Public Trustee shall not be liable for any expenses or costs under this section.

(11) All expenses and costs for which the estate is liable under this section shall be a charge on the assets of the estate, and that charge may be enforced in such manner as the Court directs.

(12) The Governor-General may from time to time, by Order in Council, make all such regulations as may in his opinion be necessary or expedient for specifying the procedure and regulating the remuneration, expenses, charges, and other matters in regard to the investigation and audit of trust estates. All regulations that have been made under the Public Trust Office Act 1908 for the purposes of section eleven of the Public Trust Office Amendment Act 1913 and are in force at the commencement of this section shall continue and have effect as if they had been made under this subsection and as if this subsection had been in force when they were made.

(13) All regulations made under this section shall be laid before Parliament within twenty-eight days after the date of the making thereof if Parliament is then in session and, if not, shall be laid before Parliament within twenty-eight days after the date of the commencement of the next ensuing session.]

84. Costs and testamentary expenses to be payable out of capital of settled residuary estate of deceased-(1) Where, under the provisions of the will of a person dying after the commencement of this Act (in this section referred to as the deceased) any real or personal property included either by specific or general description in a residuary gift is settled by way of succession, no part of the income of that property shall be applicable in or towards the payment of the funeral, testamentary, and administration expenses, death duties, debts, legacies, and liabilities, or of the interest (if any) thereon up to the date of the death of the deceased:

Provided that this subsection shall not apply to any commission which is payable to the trustee in respect of any such income or to any testamentary or administration expense which, apart from this subsection, would be payable wholly out of income.

(2) The income of the settled property shall be applicable in priority to any other assets in payment of the interest (if any) accruing due on the funeral, testamentary, and administration expenses, death duties, debts, legacies, and liabilities, after the date of the death of the deceased and up to the payment thereof, and the balance of that income shall be payable to the person for the time being entitled to the income of the property.

(3) Where, after the death of the deceased, income of assets comprised in the settled property which are ultimately applied in or towards payment of the funeral, testamentary, and administration expenses, death duties, debts, legacies, and liabilities arises pending that application, that income shall, for the purposes of this section, be deemed income of the residuary estate of the deceased.

(4) This section shall only affect the rights of beneficiaries under the will as between themselves, and shall not affect the rights of creditors of the deceased or limit any other powers of the trustee.

(5) The provisions of this section shall apply if and so far only as a contrary intention is not expressed in the will, and shall have effect subject to the terms of the will and of any Act as to charges on property of the deceased.

85. Application of income of settled property pending conversion-(1) Subject to the provisions of this section, where under the will of any person any real or personal property included (either by specific or general description) in a residuary gift is settled by way of succession, then, notwithstanding that the property may be of a wasting, speculative, or reversionary nature,-

(a) Pending any sale, calling in, or conversion of the settled property, the whole of the net income of property actually producing income shall be applied as income and no part thereof shall be appropriated to capital; and

(b) On any such sale, calling in, or conversion, or on the falling in of any reversionary property, no part of the proceeds of the sale, calling in, conversion, or falling in, shall be applied as past income.

(b) Other persons so far as their estates were administered by the Public Trustee at the date of the commencement of this Act and were subject to corresponding provisions immediately prior thereto.

(3) The provisions of this section shall apply if and so far only as a contrary intention is not expressed in the will of the deceased, and shall have effect subject to the terms of that Will.

86. Fees and commission deemed a testamentary expense-The fees, commission, remuneration, and other charges payable to a trustee in respect of the administration of the estate of a deceased person shall be deemed to be testamentary expenses.

87. Costs of inquiring regarding beneficiaries-The costs, expenses, and charges of the trustee of any property in respect of any inquiries made by him to ascertain the existence and identity of any person or persons entitled to any legacy, money, or distributive share in the property or otherwise incurred in relation thereto shall be borne by and paid out of the legacy, money, or distributive share of the person or persons in respect of whom the inquiries were made.

88. Life tenant to have powers of a trustee in certain cases-In any case where there is no trustee of any land, but the land is for the time being lawfully vested in any person entitled to the possession thereof or to the receipt of the rents and profits therefrom for an estate for life, or for a term of years determinable with his life, or for any greater estate, that person may exercise all the powers conferred on a trustee by this Act, and the Court may confer on that person all the powers which it could confer on a trustee under this Act; and anything done by any such person in exercise of any such power shall have the same force and effect as if it had been done by a trustee:

Provided that nothing in this section shall authorise any such person to sell any such land, or to raise any capital money by a mortgage thereof or other dealing therewith, unless the money paid on the sale or the capital money so raised is paid to a trustee who is duly appointed and entitled to receive it.

89. Repeals, amendments, and savings-(1) The enactments specified in the Second Schedule to this Act are hereby repealed.

(2) The enactments specified in the Third Schedule to this Act are hereby amended in the manner indicated in that Schedule.

(3) Regulation thirty of the regulations under the Public Trust Office Act 1908 made on the twentieth day of August nineteen hundred and twenty-three (Gazette 1923, Vol. II, page 2257) shall continue in force until it is otherwise revoked, notwithstanding the repeal of section four of the Public Trust Office Amendment Act 1913.

(4) Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby declared that the repeal of any provision by this Act shall not affect any document made or any thing whatsoever done under the provision so repealed or under any corresponding former provision, and every such document or thing, so far as it is subsisting or in force at the time of the repeal and could have been made or done under this Act, shall continue and have effect as if it had been made or done under the corresponding provision of this Act and as if that provision had been in force when the document was made or the thing was done.

1953, No. 1 (Local)-The Nelson Harbour Board Empowering Amendment Act 1953: Section 3.

Part of this Schedule was impliedly repealed by s. 135 (1) of the Local Authorities Loans Act 1956.

1903, No. 17 (Local)-The Timaru Harbour District and Harbour Board Act 1903: Section 4.

1908, No. 159-The Public Trust Office Act 1908: Sections 29 (2) and 50; and paragraphs (a), (b), (c), (f), (g), and (p) of section 29 (1). (1931 Reprint, Vol. VIII, p. 922.)

1912, No. 26-The Aged and Infirm Persons Protection Act 1912: Section 17. (1931 Reprint, Vol. II, p. 890.)

1913, No. 19-The Public Trust Office Amendment Act 1913: Sections 4 to 8, 10, 21 (r), (u), (v), and (w), and 25. (1931 Reprint, Vol. VIII, p. 972.)

1914, No. 14 (Local)-The Napier Harbour Board Empowering and Loan Act 1914: Section 15.

1915, No. 23-The Settled Land Amendment Act 1915. (1931 Reprint, Vol. VIII, p. 231.)

1921-22, No. 48-The Public Trust Office Amendment Act 1921-22: Sections 20 (3), (4), 21, 64, 74, and 94; and paragraphs (a), (b), (d), (e), (g), (i), (j), (k), (l) (m), (p), (q), (r), (s), (v), and (w) of section 20 (1); and paragraphs (a) and (b) of section 20 (2). (1931 Reprint, Vol. VIII, p. 997.)

1921, No. 2 (Local)-The Dunedin District Drainage and Sewerage Amendment Act 1921: Section 7.

1921-22, No. 17 (Local)-The Auckland Electric Power Board Act 1921-22: Section 87.

1922, No. 44-The Settled Land Amendment Act 1922. (1931 Reprint, Vol. VIII, p. 232.)

1925, No. 38-The Electric Power Boards Act 1925: Section 116.(1931 Reprint, Vol. III, p. 53.)

1944, No. 8 (Local)-The Auckland Metropolitan Drainage Act 1944: Section 56 (6).

1950, No. 65-The Limitation Act 1950: So much of the Second Schedule as relates to the Trustee Act 1908.

1951, No. 17 (Local)-The Auckland Harbour Board Loan and Empowering Act 1951: Section 7.

1951, No. 21 (Local)-The Christchurch District Drainage Act 1951: Section 63 (6).

1952, No. 17 (Local)-The Wellington Harbour Board Loan and Empowering Act 1952: Section 7.

1952, No. 21 (Local)-The Lyttelton Harbour Board Loan and Empowering Act 1952: Section 5.

1952, No. 23 (Local)-The Taranaki Harbour Board Empowering Amendment Act 1952: Section 3.

1953, No. 3 (Local)-The Gisborne Harbour Board Empowering Amendment Act 1953: Section 3.

1953, No. 12 (Local)-The Bay of Islands Harbour Board Empowering Amendment Act 1953.

1954, No. 51-The Penal Institutions Act 1954: So much of the First Schedule as relates to the Trustee Amendment Act 1933.

1954, No. 6 (Local)-The Whangarei Harbour Board Vesting and Empowering Amendment Act 1954.

1954, No. 15 (Local)-The Wanganui Harbour District and Empowering Amendment Act 1954: Section 9.

1956, No. 7 (Local)-The Tauranga Harbour Board Loan and Empowering Act 1956: Section 9.

Enactment Amended
___________________________________________

1920, No. 15 (Local)-
The Christchurch Tramway District Act 1920

Nature of Amendment
____________________________________________

By omitting from section 69 (1) the words "of section ninety-five of the Trustee Act 1908 and".

Part of this Schedule was impliedly repealed by s. 142 (1) of the Public Trust Office Act 1957.

Other amendments specified in this Schedule have been incorporated in the enactments affected, where they appear in this reprint.

New Zealand Legislation for Cook Islands

Trustee Act 1956