Acts and Regulations

T-15 - Trustees Act

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Repealed on 1 June 2016
CHAPTER T-15
Trustees Act
Repealed: 2015, c.21, s.94.
I
INTERPRETATION
Definitions
1In this Act
“contingent right,” as applied to lands, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of such interest or possibility is or is not ascertained; also a right of entry whether immediate or future, and whether vested or contingent;(droit éventuel)
“convey” or “conveyance,” applied to any person, includes the execution by that person of every necessary or suitable assurance for conveying, assigning, appointing, surrendering or otherwise transferring or disposing of land whereof he is seized 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 to the validity of the conveyance, including the acts to be performed by married women to bar dower or convey their interest in real property;(transférer) ou (transfert)
“Court” or “Judge” means The Court of Queen’s Bench of New Brunswick or the Court of Appeal as the context requires or a Judge thereof;(Cour) ou (juge)
“devisee” includes the heir of a devisee and the devisee of an heir, and any person who claims right by devolution of title of a similar description;(légataire)
“Instrument” includes an Act of Legislature and any Statute in force in the Province;(instrument)
“lands” includes messuages, tenements and hereditaments, corporeal and incorporeal, of every tenure or description, whatever may be the estate or interest therein;(biens-fonds)
“mortgage” includes and relates to every estate and interest regarded in equity as merely a security for money, and “mortgagee” has a corresponding meaning;(hypothèque)
“pay” or “payment” as applied in relation to stocks and securities, and in connection with the expression “into court”, includes the deposit or transfer of the same in or into court;(payer) ou (paiement)
“possessed” applies to receipt of income of, and to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in any land;(en possession de)
“property” includes real and personal property, and any estate and interest in any property, real or personal, and any debt, and anything in action, and any other right or interest, whether in possession or not;(biens)
“rights” includes estates and interests;(droits)
“stock” includes fully paid up shares; and, so far as relates to vesting orders made by the Court under this Act, includes any fund, annuity, or security transferable in books kept by any incorporated bank, company or society or by instrument of transfer, either alone or accompanied by other formalities, and any share or interest therein;(fonds sociaux)
“transfer” in relation to stock, 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;(cession)
“trust” includes implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of personal representative of a deceased person, but does not include the duties incident to an estate conveyed by way of mortgage.(fiducie)
R.S., c.239, s.1; 1971, c.73, s.1; 1979, c.41, s.123
II
INVESTMENTS
Investments
2Unless a trustee is otherwise authorized or directed by an express provision of the law or of the will or other instrument creating the trust or defining his powers and duties, he may invest trust money in any kind of property, real, personal or mixed, but in so doing, he shall exercise the judgment and care that a man of prudence, discretion and intelligence would exercise as a trustee of the property of others.
R.S., c.239, s.2; 1955, c.80, s.1, 2, 3; 1964, c.58, s.1; 1965, c.44, s.1; 1967, c.66, s.1; 1971, c.73, s.2
Investments
2.1(1)When acting in accordance with section 2, a trustee may
(a) obtain and rely on the advice of another person in relation to the investment of trust money under that section, and
(b) delegate to another person his or her authority to make investments under that section.
2.1(2)A trustee who delegates his or her authority under paragraph (1)(b) shall exercise the judgment and care described in section 2 in
(a) selecting the delegate,
(b) establishing the terms of the authority delegated, and
(c) monitoring the performance of the delegate.
2000, c.29, s.1
Investments
3A trustee may, pending the investment of any trust money, deposit it during such time as is reasonable in the circumstances in any bank or trust company or in any other corporation empowered to accept money for deposit that has been approved for such purpose by the Lieutenant-Governor in Council.
1971, c.73, s.2
Investments
4Sections 2 and 3 apply to trustees acting under trusts arising before or after the commencement of this Act.
1971, c.73, s.2
III
POWER AND DUTIES OF TRUSTEES
Insurance
5(1)A trustee may insure against loss or damage by fire any building, or other insurable property, to an amount, including the amount of any insurance already in force, not exceeding three-quarters of the full value of the building or property, and may pay the premiums for such insurance out of the income thereof, 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 such income.
5(2)This section does not apply to a building or property that a trustee is bound forthwith to convey absolutely to any beneficiary upon being requested so to do.
5(3)Nothing in this section authorizes any trustee to do anything that he is in express terms forbidden to do, or to omit to do anything that he is in express terms directed to do, by the instrument creating the trust.
R.S., c.239, s.9
Delegation of power of attorney
6(1)A trustee resident out of the Province, or intending to remain out of the Province for a period exceeding one month, may notwithstanding any rule of law or equity to the contrary, by power of attorney delegate to any person the execution or exercise during his absence from the Province of all or any trusts, powers and discretions vested in him as such trustee, either alone or jointly with any other person or persons; but a trustee may not delegate to a co-trustee if there is only one co-trustee and that co-trustee is not a trust corporation.
Liability of donor
6(2)The donor of a power of attorney given under this section is liable for the acts or defaults of the donee in the same manner as if they were the acts or defaults of the donor.
Coming into force of power of attorney
6(3)The power of attorney does not come into operation unless and until the donor is out of the Province, and is revoked by his return.
Execution and filing of power of attorney
6(4)The power of attorney shall be executed and acknowledged as required under the provisions of the Registry Act and shall be filed in The Court of Queen’s Bench of New Brunswick with an affidavit or statutory declaration of the donor that he resides out of the Province or intends to remain out of the Province for a period exceeding one month from the date of such affidavit or declaration, or from a date therein mentioned.
Corporation
6(5)Where the donor or donee is a corporation any affidavit or statutory declaration under this section may be made by any officer of the corporation duly authorized, and having knowledge of the facts.
Registration of power of attorney
6(6)If the power of attorney confers a power to dispose of or deal with land, or a charge upon land, a copy certified as a true copy under the seal of The Court of Queen’s Bench of New Brunswick and the hand of the clerk of that Court in whose office the power of attorney is filed shall be registered in the Registry Office for the county wherein the lands are situate.
Evidence
6(7)The affidavit or statutory declaration aforesaid, and an affidavit or statutory declaration by the donee of the power of attorney that the power of attorney has come into operation and has not been revoked by the return of the donor, shall be conclusive evidence of the facts stated in favour of any person dealing with the donee.
Acts done under inoperative power of attorney
6(8)In favour of a person dealing with the donee, an act done or instrument executed by the donee shall, notwithstanding that the power has never come into operation or has become revoked by death or otherwise, be valid and effectual as if the donor were alive and of full capacity, and had himself done such act or executed such instrument, unless the person had actual notice that the power had never come into operation or of the revocation of the power before such act was done or instrument executed.
Powers of donee
6(9)For the purpose of executing or exercising the trusts or powers delegated to him, the donee may exercise any of the powers conferred on the donor as trustee by statute or by the instrument creating the trust, including power, for the purpose of the transfer of any registered stock, himself to delegate to an attorney power to transfer, but not including the power of delegation conferred by this section.
Stock transactions of donee
6(10)The fact that it appears from any power of attorney given under this section, or from any evidence required for the purposes of any such power of attorney or otherwise, that in dealing with any stock the donee of the power is acting in the execution of a trust shall not be deemed for any purpose to affect any person in whose books the stock is registered with any notice of the trust.
R.S., c.239, s.10; 1979, c.41, s.123; 1980, c.32, s.42
PURCHASE AND SALE
Power of trustee to sell property
7Where 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 charges or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale and to resell, without being answerable for any loss.
R.S., c.239, s.11
Receipt
8The receipt in writing of a trustee for any money, securities or other personal property or effects payable, transferable or deliverable to him under a trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring or delivering the same from seeing to the application, or being answerable for any loss or misapplication thereof.
R.S., c.239, s.12
Application of purchase money
9In cases of sales of real or personal estate, duly made by trustees, executors or mortgagees, the purchasers are not bound to see to the application of the purchase money.
R.S., c.239, s.13
Settlement of debt, account or claim
10(1)An executor, or two or more trustees acting together, or a sole acting trustee where by the instrument creating the trust a sole trustee is authorized to execute the trusts and powers thereof, may, if and as he or they think fit, accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed, and may allow any time for payment for a debt, and may compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the testator’s or intestate’s estate or to the trust, and for any of those purposes may enter into, give and execute such agreements, instruments of composition or arrangement, releases and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done in good faith.
Power of trustee to sell property
10(2)Sections 7 and subsection (1) apply only if and so far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained.
R.S., c.239, s.14
LEASEHOLDS
Leaseholds
11(1)A trustee of any leaseholds for lives or years, that are renewable from time to time, either under any covenant or contract or by custom or usual practice, may if he thinks fit and shall, if required by any person having any beneficial interest, present or future or contingent, in the leaseholds, use his best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose may make or concur in making a surrender of the lease for the time being subsisting, and do all such other acts as are requisite; but where by the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew or to contribute to the expense of renewal, this section does not apply unless the trustee obtains the consent in writing of that person to the renewal.
11(2)If money is required to pay for the renewal, the trustee effecting the renewal may pay the same out of any money then in his hands in trust for the persons beneficially interested in the lands to be comprised in the renewal lease, and if he has not in his hands sufficient money for the purpose, he may raise the money required by mortgage of the hereditaments to be comprised in the renewal lease, or of any other hereditaments for the time being subject to the uses or trusts to which those hereditaments are subject, and no person advancing money upon a mortgage purporting to be under this power is bound to see that the money is wanted, or that no more is raised than is wanted, for the purpose.
11(3)Nothing in this section authorizes any trustee to do anything that he is in express terms forbidden to do, or to omit to do anything that he is in express terms directed to do, by the instrument creating the trust.
R.S., c.239, s.15
SURVIVING TRUSTEE
Surviving trustee
12When a power or trust is given to or vested in two or more trustees jointly, unless the contrary is expressed in the instrument, if any, creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being.
R.S., c.239, s.16
WHEN TRUSTEE CHARGEABLE ONLY
WITH HIS OWN ACTS, RECEIPTS OR
DEFAULTS
When trustee chargeable only with his own acts, receipts and defaults
13(1)A trustee, without prejudice to the provisions of any instrument creating the trust, is chargeable only for money and securities actually received by him or by any attorney lawfully appointed by him, notwithstanding his signing any receipt for the sake of conformity, and is answerable and accountable only for his own or his attorney’s acts, receipts, neglects or defaults, and not for those of any other trustee, or for any banker, 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 or his attorney’s wilful default.
13(2)A trustee may reimburse himself, or pay or discharge out of the trust premises, all expenses incurred in or about the execution of his trusts or powers.
R.S., c.239, s.17
MAINTENANCE OF MINORS
1986, c.4, s.54
Maintenance of minors
14(1)Where property is held in trust for a minor either for life or for any greater interest, and whether absolutely or contingently on his attaining the age of nineteen years or on the occurrence of any event before his attaining that age, the trustees may, at their sole discretion, pay to the minor’s parent or guardian, or otherwise apply for or towards the minor’s maintenance, education or benefit, the income of such property or any part thereof, whether or not there is any other fund applicable to the same purpose or any person bound by law to provide for the minor’s maintenance or education.
14(2)The trustees shall accumulate all the residue of such income in the way of compound interest by investing the same and the resulting income thereof from time to time, in securities on which they are by the settlement, if any, or by law authorized to invest trust money, and shall hold the accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arises; but the trustees may at any time, if they think fit, apply such accumulations or any part thereof as if the same were income arising in the then current year.
14(3)This section applies only if and as far as a contrary intention is not expressed in the instrument under which the interest of the minor arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
R.S., c.239, s.18; 1972, c.5, s.2; 1986, c.4, s.54; 2000, c.29, s.2
IV
POWERS OF THE COURT
Vesting order respecting property
15In any of the following cases, namely:
(a) when the Court appoints or has appointed a new trustee,
(b) where a trustee entitled to or possessed of any land, or entitled to a contingent right therein, either solely or jointly with any other person, is a minor or is out of New Brunswick or cannot be found,
(c) where it is uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any land,
(d) where it is uncertain whether the last trustee known to have been entitled to or possessed of any land is living or dead,
(e) where there is no heir, or personal representative, of a trustee who was entitled to or possessed of land and has died intestate as to that land, or where it is uncertain who is the heir or personal representative or devisee of a trustee who was entitled to or possessed of land, and is dead, or
(f) where a trustee jointly or solely entitled to or possessed of any 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 a release of the right, to convey the land or to release the right, and has wilfully refused or neglected to convey the land, or release the right, for fourteen days after the date of the requirement,
the Court may make an order, in this Act called a vesting order, vesting the land in such person in such manner, and for such estate as the Court may direct, or releasing or disposing of the contingent right to such person as the Court may direct, and
(g) where the order is consequential on the appointment of a new trustee, the land shall be vested, for such estate as the Court may direct, in the persons who, on the appointment, are the trustees, and
(h) where the order relates to a trustee entitled jointly with another person, and such trustee is out of New Brunswick or cannot be found, the land or right shall be vested in such other person, either alone or with some other person.
R.S., c.239, s.19; 1986, c.4, s.54
Vesting order respecting contingent interest
16Where land is subject to a contingent right in an unborn person or class of unborn persons, who upon coming into existence would in respect thereof become entitled to or possessed of the land on any trust, the Court may make an order releasing the land from the contingent right, or may make an order vesting in some person the estate to or of which the unborn person, or class of unborn persons, would, on coming into existence, be entitled or possessed in the land.
R.S., c.239, s.20
Vesting order respecting land of minor
17Where a person entitled to or possessed of land, or entitled to a contingent right in land, by way of security for money is a minor, the Court may make an order vesting or releasing or disposing of the land or right in like manner as in the case of a trustee who is a minor.
R.S., c.239, s.21; 1986, c.4, s.54
Vesting order respecting reconveyance to mortgagor
18Where a mortgagee of land dies without having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of the mortgage has been paid to a person entitled to receive the same, or the last mentioned person consents to an order for the reconveyance of the land, the Court may make an order vesting the land in such person or persons, in such manner and for such estate as the Court may direct, in any of the following cases:
(a) where the personal representative or devisee of the mortgagee is out of the Province, or cannot be found,
(b) where the personal representative or devisee of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land, has stated in writing that he will not convey the same, or does not convey the same for the space of fourteen days next after a proper deed for conveying the land has been tendered to him by or on behalf of the person so entitled,
(c) where it is uncertain which of several devisees of the mortgagee was the survivor,
(d) where it is uncertain as to the survivor of several devisees of the mortgagee, or as to the heir or personal representative of the mortgagee, whether he is living or dead, or
(e) where there is no heir or personal representative of a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is uncertain who is his heir or personal representative, or devisee.
R.S., c.239, s.22
Vesting order respecting judicial sale or mortgage
19Where 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 the land or entitled to a contingent right therein as heir, or under the will of a deceased person for payment of whose debts the judgment was given or order made, and who 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 within the meaning of this Act; and the Court may, if it thinks expedient, make an order vesting the land or any part thereof, for such estate as the Court thinks fit, in the purchaser or mortgagee or in any other person.
R.S., c.239, s.23
Vesting order respecting deceased debtor
20(1)Where a judgment is given for the specific performance of a contract concerning any land, or for the partition, or sale in lieu of partition, or exchange of any land, or generally where a judgment is given for the conveyance of any land, either in cases arising out of the doctrine of election or otherwise, the Court may declare that any of the parties to the action are trustees of the land or any part thereof, within the meaning of this Act, or may declare that the interests of unborn persons who might claim under any party to the action, or under the will or voluntary settlement of any person deceased, who was during his lifetime a party to the contract or transactions 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.
20(2)This section shall, when necessary, apply to the interests of minors and mentally incompetent persons in lands directed to be partitioned.
R.S., c.239, s.24; 1986, c.4, s.54
Effect of vesting order
21A vesting order under any of the foregoing provisions, in the case of a vesting order consequential on the appointment of a new trustee, has the same effect as if the persons, who before the appointment were the trustees, had duly executed all proper conveyances of the land for such estate as the Court directs, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate 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 capacity, and had executed a conveyance or release to the effect intended by the order.
R.S., c.239, s.25
Appointment of person to carry out vesting order
22Where a vesting order may be made under any of the foregoing provisions, the Court may, if it is more convenient, appoint a person to convey the land or release the contingent right, and a conveyance or release by such person in conformity with the order shall have the same effect as an order under the appropriate provision.
R.S., c.239, s.26
Vesting order respecting stocks and choses in action
23(1)In any of the following cases, namely:
(a) when the Court appoints, or has appointed, a new trustee,
(b) when a trustee entitled alone, or jointly with another person, to stock, or to a chose in action
(i) is a minor,
(ii) is out of the Province,
(iii) cannot be found,
(iv) neglects or refuses to transfer stock, or receive the dividends or income thereof, or to sue for or recover a chose in action, according to the direction of the person absolutely entitled thereto, for fourteen days next after a request in writing has been made to him by the person so entitled, or
(v) neglects or refuses to transfer stock or receive the dividends or income thereof, or to sue for or to recover a chose in action, for fourteen days next after an order of the Court for that purpose has been served on him, or
(c) when it is uncertain whether a trustee entitled alone, or jointly with another person, to stock or to a chose in action is alive or dead,
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 a chose in action, in any such person as the Court may appoint, and
(d) where the order is consequential on the appointment by the Court of a new trustee, the right shall be vested in the persons who, on the appointment, are the trustees, and
(e) where the person whose right is dealt with by the 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.
Appointment of person to carry out vesting order
23(2)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.
Appointment of person to carry out vesting order
23(3)The person in whom the right to transfer or call for 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 and companies shall obey every order under this section according to its tenor.
Duty of bank or company on receipt of notice
23(4)After notice in writing of an order under this section no bank, or company, shall transfer any stock to which the order relates, or pay any dividends thereon, except in accordance with the order.
Directions respecting order under s.23
23(5)The Court may make declarations and give directions concerning the manner in which the right to any stock or chose in action, vested under the provisions of this Act, is to be exercised.
Vesting order respecting shares in ship
23(6)The provisions of this Act as to vesting orders apply to shares in ships registered under the Acts relating to merchant shipping, as if they were stock.
R.S., c.239, s.27; 1986, c.4, s.54
Effect of vesting order
24Where an order is made under the provisions of this Act by the Court, vesting in any person the legal right to sue for or recover any stock or chose in action, or any interest in respect thereof, such legal right vests accordingly, and thereupon the person so appointed may carry on, commence and prosecute in his own name any action or proceeding for the recovery of such chose in action, in the same manner in all respects as the person in whose place the appointment is made could have sued for or recovered such chose in action.
R.S., c.239, s.28
Remedying of deficient trust instrument
25Where in the management or administration of any property vested in trustees, a sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure, or other transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the Court may by order confer upon the trustees, either generally or in a particular instance, the necessary power for the purpose, on such terms and subject to such provisions and conditions as the Court may think fit, and may direct in what manner any money authorized to be expended and the costs of any transaction are to be paid or borne as between capital and income.
R.S., c.239, s.29
Court order varying trust
26(1)Where property, real or personal, is held on trusts arising before or after the commencement of this Act under any will, settlement or other disposition, the Court may, if it thinks fit, by order approve on behalf of
(a) any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by reason of infancy or other incapacity is incapable of assenting,
(b) any person, whether ascertained or not, who may become entitled, directly or indirectly, to an interest under the trusts as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons,
(c) any person unborn, or
(d) any person in respect of any interest of his that may arise by reason of any discretionary power given to anyone on the failure or determination of any existing interest that has not failed or determined,
any arrangement, by whomsoever proposed and whether or not there is any other person beneficially interested who is capable of assenting thereto, varying or revoking all or any of the trusts or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts.
26(2)The Court shall not approve an arrangement on behalf of any person coming within paragraph (1)(a), (b) or (c) unless the carrying out thereof appears to be for the benefit of that person.
1959, c.76, s.1
INDEMNITY
Indemnity
27This Act, and every order purporting to be made hereunder, is a complete indemnity to all banks, companies, and persons for any acts done pursuant thereto; and it is not necessary for any bank, company or person to inquire concerning the propriety of the order, or whether the Court by which it was made had jurisdiction to make the same.
R.S., c.239, s.30
Indemnity
28When a minor or mentally incompetent person is entitled to money payable in discharge of any lands, stock or chose in action conveyed, assigned or transferred under this Act, the person by whom such money is payable, may pay the same into Court, in trust, in any cause then depending concerning such money, or, if there is no cause, to the credit of such minor or mentally incompetent person, subject to the order or disposition of the Court.
R.S., c.239, s.31; 1986, c.4, s.54
APPOINTMENT OF NEW TRUSTEE
Court order appointing new trustee
29(1)Where it is expedient to appoint a new trustee, and it is found inexpedient, difficult or impracticable so to do without the assistance of the Court, the Court may make an order for the appointment of a new trustee, either in substitution for, or in addition to, any existing trustee or trustees, or although there is no existing trustee; in particular and without prejudice to the generality of the foregoing provision, the Court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony or is a mentally incompetent person, or is a bankrupt, or is a corporation which is in liquidation or has been dissolved.
29(2)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 an instrument would have operated.
29(3)Nothing in this section gives power to appoint an executor.
29(4)Every trustee appointed by a Court of competent jurisdiction has, as well before as after the trust property becomes vested in him, the same powers, authority and discretion, and may act in all respects as if he had been originally appointed a trustee by the instrument, if any, creating the trust.
R.S., c.239, s.32
Person entitled to order
30An order under any of the hereinbefore contained provisions for the appointment of a new trustee or trustees, or concerning any lands, stock or chose in action subject to a trust, may be made upon the application of any person beneficially interested in such lands, stock or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof; and an order under any of the provisions hereinbefore contained concerning any lands, stock or chose in action, subject to a mortgage, may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the moneys secured by such mortgage.
R.S., c.239, s.33
Application by way of petition
31A person entitled in manner aforesaid to apply for an order may present a petition in the first instance to the Court for such an order as he may deem himself entitled to, and may give evidence by affidavit or otherwise in support of such petition, and may serve such person or persons with notice of such petition as he may deem entitled thereto.
R.S., c.239, s.34
Powers of court
32Upon the hearing of any such application the Court may direct a reference to inquire into any facts which require investigation, or may direct the application to stand over to enable fuller evidence to be adduced or further notice to be served, or may dismiss the application, or may make an order thereupon in conformity with the provisions of this Act.
R.S., c.239, s.35
When order made
33Where in any proceeding the facts necessary for an order under this Act appear to the Court to be sufficiently proved, the Court may make the order.
R.S., c.239, s.36
Reconveyance of lands conveyed under vesting order
34When a vesting order as to any land is made under this Act founded on an allegation of the personal incapacity of a trustee or mortgagee, or on an allegation that a trustee or the heir or personal representative or devisee of a mortgagee is out of New Brunswick or cannot be found, or that it is uncertain which of the several trustees, or which of the several devisees of a mortgagee was the survivor, or whether the last trustee, or the personal representative, or last surviving devisee of a mortgagee is living or dead, or on an allegation that any trustee, or mortgagee has died intestate without an heir, or has died and it is not known who is his heir or personal representative or devisee, 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 the payment of costs occasioned by any such order, if improperly obtained.
R.S., c.239, s.37; 2000, c.29, s.3
Vesting order in favour of charity
35The Court may exercise the powers herein conferred for the purpose of vesting any lands, stock, or chose in action, in the trustee or trustees of any charity, or society over which charity or society the Court would have jurisdiction, upon action duly instituted, whether such trustee or trustees have been duly appointed by a power contained in any deed or instrument, by the order or judgment of the Court, or by an order made upon a petition to the Court, under any statute authorizing the Court to make an order to that effect in a summary way.
R.S., c.239, s.38
JUDGMENT IN ABSENCE OF TRUSTEE
Judgment in absence of trustee
36(1)Where in an action, the Court is satisfied that diligent search and inquiry has been made after a person, who in the character of a trustee is made defendant in the action, to serve him with the process of the Court, and that he cannot be found, the Court may hear and determine the action and give judgment therein against such 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 action in any other character.
36(2)Nothing in this section deprives the plaintiff of the right to commence an action, and proceed against any trustee, as provided by the Judicature Act.
R.S., c.239, s.39
Judgment in absence of trustee
37The Court may order the costs and expenses of, and relating to, the petitions, orders, directions, conveyances, assignments and transfers made in pursuance of this Act, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or to be borne and paid in such manner and by such persons as the Court thinks proper.
R.S., c.239, s.40
ALLOWANCE TO TRUSTEES
Allowance to trustees
38(1)Any trustee under a deed, settlement or will, and any guardian or committee of a mentally incompetent person, appointed by any court, and a testamentary guardian or any other trustee, howsoever the trust is created, is entitled to such fair and reasonable allowance for his care, pains and trouble, and his time expended in and about the trust estate, as may be allowed by the Court, or, when the trustee or guardian is appointed by or accountable to The Probate Court of New Brunswick, by that Court or a Judge of that Court.
38(2)The Court, The Probate Court of New Brunswick or a Judge of one of those Courts, as the case may be, may on application for that purpose settle the amount of such compensation and out of what trust funds the same shall be paid, although the trust estate is not before the Court in any action or other proceeding.
38(3)Compensation may be allowed in the case of any trust heretofore created as well as of any hereafter to be created.
38(4)Nothing in this section applies to any case in which the allowance is fixed by the instrument creating the trust, or is specially provided for otherwise, by law.
38(5)Repealed: 1987, c.6, s.115
R.S., c.239, s.41; 1975, c.63, s.1; 1979, c.41, s.123; 1987, c.6, s.115
PAYMENT INTO COURT
Payment into court
39(1)Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may apply to the Court, ex parte in chambers, for an order authorizing them to pay into or deposit in Court such money or securities; and the same shall, subject to Rules of Court, be dealt with according to the orders of the Court.
Certificate
39(2)The certificate of the proper officer is a sufficient discharge to trustees for the money or securities so paid into or deposited in Court.
Payment by majority of trustees
39(3)When money or securities are vested in any persons as trustees, and the majority are desirous of paying the same into or depositing the same in Court, but the concurrence of the other or others cannot be obtained, the Court may order the payment into or deposit in Court to be made by the majority without the concurrence of the other or others; and when any such money or securities are deposited with a banker or broker, or other depository, the Court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment into or deposit in Court, and every transfer, payment and delivery made in pursuance of 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.
Mode of payment into court
39(4)Money paid into Court under this section shall, except as otherwise provided by this Act, be paid in and dealt with in the same manner as provided by the Judicature Act and the Rules of Court, respecting money paid into Court.
R.S., c.239, s.42; 1979, c.41, s.123; 1985, c.4, s.68
Procedure respecting payment into court
40(1)Subject to the Rules of Court and except as otherwise directed or allowed in any case by the Court the procedure set forth in subsection (2) shall be observed.
Affidavit
40(2)On an application to pay money into Court, or to deposit securities in Court under this Act, the applicant shall file in the Court an affidavit entitled, “In The Court of Queen’s Bench of New Brunswick,” “In the matter of (specifying shortly the trust and the instrument creating it)”, which affidavit shall set forth
(a) the deponent’s name and address,
(b) the amount and description of the money or securities in question,
(c) a statement whether the succession duty, if chargeable, or any part thereof has been paid,
(d) the names and addresses, as far as known to the deponent, of all persons interested in or entitled to the moneys or securities in question; and whether or not such persons are under any disability by reason of being minors or of unsound mind, to the best of his knowledge and belief,
(e) his submission to answer all such questions, relating to the application of the money and securities in question, as the Court may direct, and
(f) the place where he is to be served with any petition, notice, or other proceeding, relating to the money or securities in question, or the name of a solicitor upon whom such service may be made.
Order for payment into court
40(3)Every order made on such application shall direct the applicant forthwith to give notice thereof to such persons interested, and in such manner as the Court shall direct, and such order may direct such notice to be given by prepaid letter through the post, to the several persons interested in or entitled to the moneys or securities paid into or deposited in Court whose names and places of residence are stated by affidavit, as provided by paragraph (1)(d), except that in the case of minors or persons of unsound mind, such notice shall be given to the guardian, if any, of the minors, and to the committee of any mentally incompetent person, or to such person or persons as the Court may direct.
Notice of order
40(4)The notice of an order made under this Act may be in the form prescribed by regulation.
Service of notice of application
40(5)Notice of all applications respecting money or securities paid into, or deposited in Court under this Act shall be served on the trustee, and the person directed to be notified of such payment or deposit, unless such service is dispensed with by the Court.
Regulations respecting forms
40(6)The Lieutenant-Governor in Council may make regulations prescribing the forms required under this Act.
R.S., c.239, s.43; 1973, c.74, s.78; 1979, c.41, s.123; 1980, c.32, s.42; 1985, c.4, s.68; 1986, c.4, s.54
V
PROTECTION AND RELIEF
Breach of trust at instigation of beneficiary
41When 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 is a married woman entitled for her separate use, whether with or without a restraint upon 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 person claiming through him.
R.S., c.239, s.44
Power of court to relieve trustee
42Where in any suit or proceeding in The Court of Queen’s Bench of New Brunswick it appears to the Court that a trustee is or may be personally liable for any breach of trust, 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 such breach, the Court may relieve the trustee, either wholly or partly from personal liability for the same.
R.S., c.239, s.45; 1979, c.41, s.123
STATUTE OF LIMITATIONS
Statute of limitations
43(1)In an action or other proceeding against a trustee, or any person claiming through him, except when the claim is founded upon fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof, still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions apply:
(a) all rights and privileges conferred by any statute of Limitations shall be enjoyed in the like manner, and to the like extent, as they would have been enjoyed in such action or other proceeding, if the trustee, or person claiming through him, had not been a trustee, or person claiming through a trustee;
(b) if the action or other proceeding is brought to recover money or other property, and is one to which no existing statute of Limitations applies, the trustee or person claiming through him, shall be entitled to the benefit of, and be at liberty to plead the lapse of time as a bar to such action or proceeding in the like manner, and to the like extent, as if the claim had been against him in an action of debt for money had and received; but so, nevertheless, that the statute shall run against a married woman entitled in possession for her separate use, whether with or without a restraint upon anticipation, but shall not begin to run against any beneficiary until the interest of such beneficiary becomes an interest in possession.
43(2)No beneficiary, as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought such action or other proceeding, and this section had been pleaded.
43(3)This section does not deprive an executor or administrator of any right or defence to which he is entitled under any existing statute of Limitations.
R.S., c.239, s.46
VI
SETTLED LANDS
Powers of trustee
44The trustees under any deed, will, settlement or other instrument by which land is held by or in trust for any person for the life of such person or for the life of another may, with the concurrence by deed of the person so for the time being beneficially entitled to the immediate possession of such land for a life estate, sell such land, or any part thereof or any easement, right or privilege of any kind over or in relation to the same, or may make an exchange of such land or any part thereof for other land, including an exchange in consideration of money paid for an equality of exchange, or may concur in making a partition of such land, or of any land of which the same forms a part, including a partition in consideration of money paid for equality of partition.
R.S., c.239, s.47
Duties of trustee
45(1)Every sale shall be made at the best price that can reasonably be obtained.
Exchange or partition of trust land
45(2)Every exchange and every partition shall be made for the best consideration in land or in land and money that can reasonably be obtained.
Exchange or partition of trust land
45(3)A sale may be made in one lot or in several lots, and either by auction or by private contract.
R.S., c.239, s.48
Money received from sale of trust land
46All money received upon any such sale, or land obtained under any such exchange, or by means of any such partition, shall be held by the trustees upon the trusts of the deed, will, settlement or other instrument applicable to the land so sold, exchanged or partitioned.
R.S., c.239, s.49
Investment of money received from trust land
47Such money so received, shall be invested in accordance with the provisions of Part II, and money while remaining uninvested or unapplied, and securities on which an investment of any such moneys is made, shall, for all purposes of disposition, transmission and devolution, be considered as land, and the same shall be held for and go to the same persons successively, in the same manner and for and on the same estates, interests and trusts as the land wherefrom the money arises would, if not disposed of, have been held and have gone under any deed, will, settlement or other instrument.
R.S., c.239, s.50
Court order respecting sale of trust land
48Before making any conveyance under the powers conferred by this Part, the trustees shall, by petition, lay before the Court the particulars of the proposed sale, exchange or partition, together with the reasons for making the same, which petition shall be supported by affidavit showing the adequacy of consideration for the proposed sale, exchange or partition; and the Court may thereupon make an order approving the same, which shall operate as a protection to the trustee or trustees.
R.S., c.239, s.51
N.B. This Act is consolidated to June 1, 2016.