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may, by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deccused, remaining out of the Colony, desiring to be discharged, refusing, or being unfit or being incapable, or being an infant, as aforesaid.
(2) 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 desired to be discharged from the trust, and the provisions of this section shall apply accord. ingly, but subject to the restrictions imposed by this Ordinance on the number of trustees,
(8) Where a corporation being a trustee is or has been dissolved, either before or after the commence- ment of this Ordinance, then, for the purposes of this section and of any enactment replaced thereby, the corporation shall be deemed to be and to have been from the date of the dissolution incapable of acting in the trusts or powers reposed in or conferred on the corporation.
(4) The power of appointment given by sub-section 1) 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 al- ways to have been exercisable by the executors for the time being (whether original or by representation) ot such surviving or continuing trustee who have proved the will of their testator or by the adminis- trators for the time being of such trustee without the concurrence of any executor who has renounced or has not proved.
(5) But 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, 1 willing to act for that purpose and without thereby accepting the office of executor.
(6) Where a sole trustee, other than a trust cor- poration 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 trust 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 pur- pose of appointing new trustees by the instru. ment, 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 another person or other persons to be an additional trustee or additional trus- tees, but it shall not be obligatory to appoint any additional trustee, unless the instrument, if any, creating the trust, or any statutory enactment pro- vides to the contrary, nor shall the number of trustees be increased beyond four by virtue of any such ap pointment.
(7) 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 discre. tions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.
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(8) The provisions of this section relating to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.
(9) Where a lunatic or person of unsound mind, being a trustee, is also entitled in possession to some beneficial interest in the trust property, no appoint- ment of a new trustee in his place shall be made by the continuing trustees or trustee, under this section, unless leave has been given by the court to make the appointment.
38.-(1) On the appointment of a trustee for the Supple- whole or any part of trust property-
as to
mental provisions (a) the number of trustees may, subject to the
appoint- restrictions imposed by this Ordinance on the ment of trustees. number of trustees, be increased; and
15 Geo. 5, c. 19, s. 37.
(b) a separate set of trustees, not exceeding four, may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property, notwithstanding that no new trustees or trustee are or is to be appointed for other parts of the trust property, and any existing trustee may be appointed or remain one of such separate set of trustees, or, if only one trustee was originally appoint. ed, then, save as hereinafter provided, one separate trustee may be appointed; and
new
(c) it shall not be obligatory, save as hereinafter
provided, to appoint more than one 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, and a sole trustee when appointed will be able to give valid receipts for all capital money, a trustee shall not be discharged from his trust unless there will be either a trust 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, in a sole trustee, or jointly in the persons who are the trustees, shall be executed or done.
(2) Nothing in this Ordinance shall authorise the appointment of a sole trustee, not being a trust cor- poration, where the trustee, when appointed, would not be able to give valid receipts for all capital money arising under the trust.
commencement as to a
39.-(1) A statement, contained in any instrument Evidence coming into
the operation after of this Ordinance by which a new trustee is appointed vacancy in for any purpose connected with land, to the effect that a trust. a trustee has remained out of the Colony for more c. 19, s. 38. than twelve months or refuses or is unfit to act, or is incapable of acting, or that he is not entitled to
a beneficial interest in the trust property in posses- sion, shall, in favour of a purchaser of a legal estate, be conclusive evidence of the matter stated.
(2) In favour of 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.
15 Geo. 5.
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