In re de Mel.
Present : Keuneman and Cannon JJ.
In re DE MEL et al.
61—D. C. (Inty.)' Colombo, 2,362
Trust—No provisions in deed for appointment of new trustees—Power ofsurviving trustee—Trusts Ordinance, s. 75 (Cap. 72)
Where in a trust deed there was no power vested in the trusteesspecifically named or in their successors, who are designated therein, toappoint any new trustees, a sole surviving trustee is entitled by virtue■ of the provisions of section 75 of the Trusts Ordinance to appoint newtrustees for the purpose of filling vacancies caused by death or incapacity.
1 5 Call. 55S.2 5 All. 22G.
KEUNEMAN J.—In re de Mel.
^^PPEAL from an order of the District Judge of Colombo.
N. E. Weerasooria, K.C. (with him A. L. J. Croos Da Brera andE. B. Wickremanayake), for petitioners, appellants.
Cur. adv. vult.
October 16, 1940. Keuneman J.—• N
By his deed No. 873 of 1890, V. Francisco de Mel conveyed the premisesmentioned in the schedule to the deed to his sons, namely, (1). Pedro deMel, (2) Johannes de Mel, (3) Manuel de Mel, (4) Jacob de Mel, and(5) Charles William de Mel, on certain trusts which are fully set out inthe deed : —
“ To have and to hold unto the said trustees and to the survivor andsurvivors of them and the executors and administrators of such survivorand other the trustee or trustees for the time being of these presentsupon the trusts following that is to say ….
“ Fifth. Upon the death of any of the trustees hereinbefore namedthe eldest male son of the trustee so dying shall be a trustee in the placeof his deceased parent …. and he shall by virtue of suchsuccession be vested with all the powers of an original trustee underthese presents ”.
The affidavits filed in this case establish that (1) Pedro died withoutissue, (2) Johannes died leaving a son, Charles Francis de Mel, (3) Manueldied leaving a son, Matthias de Mel, (4) Jacob died leaving as his eldest son.Sir Henry de Mel, (5) Charles William died leaving a son, William.According to the terms of the deed of 1890, each of these sons succeededthe deceased parent in the office of trustee.
Matthias de Mel and Sir Henry de Mel died before July, 1936. Atthat time Charles Francis de Mel was alive, and so was William de Mel,but the latter was of unsound mind since birth and never accepted thetrust, and was adjudged a lunatic in lunacy proceedings No. 2,842, D. C.Colombo.
By his order dated July 17, 1936, in this case, the District Judge foundthat William de Tylel was of unsound mind and incapable of acting as aco-trustee, and that Charles Francis de Mel was the sole trustee in termsof the deed of trust.
– Thereafter, on July 23, 1936, Charles Francis de Mel, by his deedNo. 36/200 appointed the present petitioners “ to be additional trusteesto act with him jointly in carrying out with him the provisions of the saidInstrument of Trust No. 873 ”. He purported to act as sole survivingtrustee.
Later, Charles Francis de Mel, died, and on October 11, 1939, the presentpetitioners filed petition and affidavit praying that they be allowed todraw the sum of Rs. 10,158.19 with accrued interest deposited in Courtto the credit of the trust by the executors of Sir Henry de Mel, one of thedeceased trustees.
The learned District Judge refused this application on the ground thatthere was considerable doubt whether the petitioners have any right toclaim the status of trustees of the trust. The petitioners appeal fromthis order.
KEUNEMAN J.—In re de JVfel.
In his order, the District Judge has correctly stated that in the trustdeed there was no power vested in the trustees specifically named or theirsuccessors who are designated therein to appoint any new trustees. Thisis admitted by Counsel for the appellants, who, however, claims that byvirtue of section 75 of the Trusts Ordinance (Cap. 72) Charles Francis deMel was entitled to appoint new trustees.
Section 75 runs as follows : —
“(1) Whenever any person appointed a trustee disclaims, or any trustee,either original or substituted, dies, dr is absent from Ceylon for such acontinuous period and under such circumstances that, in the opinionof the Court, it is desirable, in the interests of the trust, that his officeshould be declared vacant, or is declared an.insolvent, or desires to bedischarged from the trust, or refuses or is or becomes, in the opinion ofthe Court, unfit or personally incapable to act in the trust, a new trusteemay be appointed in his place by—^
“(a) the person nominated for that purpose by the instrument oftrust (if any); or
“ (b) if there be no such person, or no such person able and willing toact, the author of the trust if he be alive and competent to contract, orthe surviving or continuing trustees or trustee for the time being, orlegal representative of the last surviving and continuing trustee, or(with the consent of the Court) the retiring trustees, if they all retiresimultaneously, or (with the like consent) the last retiring trustee.
“ (2) Every such appointment shall be by writing under the hand ofthe person making it, and shall be notarially executed ”.
There can be no doubt that, with the exception of William de Mel andCharles Francis de Mel, the trustees appointed under deed No. 873 weredead. William de Mel was on July 17, 1936, declared to be incapable ofacting as trustee. Charles Francis must therefore be regarded as the lastsurviving and continuing trustee. Prima facie, therefore, he was entitledto appoint new trustees, and he has done no more than to fill the vacanciescaused by death and incapacity.
The District Judge, however, was of opinion that on the death ofCharles Francis de Mel, he was succeeded by his executor or administrator.I think the District Judge is in error. Under deed No. 873, “ executorsand administrators of such survivors’’ are also nominated trustees, butthis only applies to what has been described as the first generation oftrustees, namely, the five persons specifically named in the deed, and notto the second generation, namely, the eldest sons of the named trustees.Further, in any event, there is, I think, no doubt that Charles Francis deMel was “ the last surviving and continuing trustee ”, and that he hadthe statutory power of appointing new trustees under section 75 (1) (b) ofthe Trusts Ordinance.
It may also be that the District Judge was influenced by the words,“ in the opinion of the Court ”, which he has underlined and whichappear twice in section 75. But I think these words must be limited totheir context, and that the opinion of the Court is only needed (a) wherethe trustee is absent from Ceylon, for the purpose of determining whetherthe period and the circumstances of his absence make it desirable that
The King v. de Silva.
his office be declared vacant, and (b) where the trustee is, or becomes,unfit or personally incapable to act in the trust, for the purpose of deter-mining whether he is so unfit or personally incapable. In the other casesmentioned, e.g., the death of the trustee, it is not necessary to obtain theopinion of the Court for any purpose.
In this case, at the time of the deed of appointment all the othertrustees were dead, except William who was declared by the Courtincapable of acting as a co-trustee. In his case, the opinion of the courtwas correctly claimed and obtained.
The last point made by the District Judge is that in the deed CharlesFrancis de Mel does not purport to replace himself, but _ appoints newtrustees to act jointly with him. In this case Charles Francis de Mel wasnot proposing to retire. If he had been a retiring trustee, it would havebeen necessary for him under section 75 to obtain the consent of the Courtwith a view to the appointing of new trustees. All that he sought to doin fact was to appoint new trustees for the purpose of filling the vacanciescaused by the deaths and the incapacity of the other trustees, and section75 conferred on him the power to make such new appointments.
I accordingly set aside the order of the District Judge and hold that thepetitioners are the trustees duly appointed to carry cut the trusts createdby deed No. 873 of 1890.
As regards the application to draw the money deposited in Court, theDistrict Judge has not dealt with this on its merits, and it is not possiblein this Court to make any order on this matter. I send the case back forthe District Judge to consider and deal with this application.
I make no order as regards the costs of this appeal.
Cannon J.—I agree.
In re DE MEL et al