1971-HKRS28-8-38_Part02 — Page 39

Right to follow property and powers of the court in rela- tion thereto. 1923, s. 23. 1. 38.

(Cap. 29.)

Powers of personal representative

as to appropria- tion.

ter. 1925. m. 23.

* 411

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postpone the giving of an assent merely by reason of the sub- sistence of any such duties, debt or liability, if reasonable arrange- ments have been made for the discharging of the same, and an assent may be given subject to any legal estate or charge by way of legal mortgage.

(7) This section applies to assents and conveyances made after the commencement of this Ordinance, whether the testator or intestate died before or after such commencemenl.

67. (1) An assent, transfer or conveyance by a personal representative to a person other than a purchaser does not preju- dice the rights of any person to follow the property to which the assent, transfer or conveyance relates, or any property representing the same, into the hands of the person in whom it is vested by the assent, transfer or conveyance, nor of any other person (not being a purchaser) who may have received the same or in whom it may be vested.

(2) Notwithstanding any such assent, transfer or conveyance the court may, on the application of any creditor or other person interested-

(a) order a sale, exchange, mortgage, charge, lease, payment, transfer or other transaction to be carried out which the court considers requisite for the purpose of giving effect to the rights of the persons interested;

(b) declare that the person, not being a purchaser, in whom the property is vested is a trustee for those purposes;

(<) give directions respecting the preparation and execution of any conveyance or other instrument, or as to any other matter required for giving effect to the order;

(d) make any vesting order or appoint a person to convey in accordance with provisions of the Trustee Ordinance.

(3) This section does not prejudice the rights of a purchaser or a person deriving title under him, but applies whether the testator or intestate died before or after the commencement of this Ordinance.

68. (1) The personal representative may appropriate any part of the movable or immovable property, including things in action, of the deceased in the actual condition or state of invest- ment thereof at the time of appropriation in or towards satisfac- tion of any legacy bequeathed by the deceased, or of any other interest or share in his property, whether settled or not, as to the personal representative may seem just and reasonable, according

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to the respective rights of the persons interested in the property of the deceased,

(2) Notwithstanding the provisions of subsection (1)— (a) an appropriation shall not be made under this section so as to affect prejudicially any specific devise or bequest; (b) an appropriation of property, whether or not being an investment authorized by law or by the will, if any, of the deceased for the investment of money subject to the trust, shall not (save as hereinafter mentioned) be made under this section except with the following consents-

(i) when made for the benefit of a person absolutely and beneficially entitled to possession, the consent of that person:

(ii) when made in respect of any settled legacy, share or înterest, the consent of either the trustee thereof, if any (not being also the personal representative) or the person who may for the time being be entitled to the income, and if the person whose consent is so required as afore- said is a minor or a mentally disordered person, the con- sent shall be given on his behalf by bis parents or parent, testamentary or other guardian, committes or receiver. or if, in the case of a minor, there is no such parent or guardian, by the court on the application of his next friend:

(c) no consent (save of such trustee as aforesaid) shall be required on behalf of a person who may come into exist- ence after the time of appropriation, or who cannot be found or ascertained at that time:

(d) if no committee or receiver of a mentally disordered person has been appointed, then, if the appropriation is of an investment authorized by law or by the will, if any, of the deceased for the investment of money subject to the trust, no consent shall be required on behalf of the mentally disordered person;

(e) if. independently of the personal representative, there is no trustee of a settled legacy, share or interest, and no person of full age and capacity entitled to the income thereof, no consent shall be required to an appropriation in respect of such legacy, share or interest so long as the appropriation is of an investment authorized as aforesaid.

(3) Any property duly appropriated under the powers con- ferred by this section shall thereafter be treated as an authorized investment, and may be retained or dealt with accordingly.