The Trustee Act, C.C.S.M. c. T160 bilingual version (HTML) Table of Contents Section 1 Definitions 2 Application of Act 3 Act supplementary to instrument 4 Act not to vary instrument 5 Jurisdiction of the court 6 Devolution of powers of trustees 7 Retirement of trustee without new appointment APPOINTMENT OF TRUSTEES 8 Appointment of new trustee 9 Appointment of new trustee by court 10 Powers of appointment of trustees 11 Powers vested in new trustees 12 Statement re vacancy in trust 13 Vesting instruments VESTING ORDERS AND ORDERS RELEASING CONTINGENT INTERESTS 14 Vesting orders 15 Contingent rights of unborn person 16 Order in lieu of conveyance by infant 17 Interests in order for sale or mortgage 18 Interest in judgment for specific performance 19 Effect of vesting order 20 Person to convey 21 Order as evidence 22 Vesting order re chose in action TRUSTEES FOR CHARITIES 23 Exercise of powers for charities 24 Power to order sale POWERS AND DUTIES OF TRUSTEES 25 Power of sale 26 Sale subject to depreciatory condition 27 Leases 28 Options 29 Power during infancy of beneficiary 30 Power of court re application of capital 31 Payment to parent 32 Payment of liabilities of deceased 33 Power to postpone sale or conversion 34 Married woman as trustee 35 Employment of agents 36 Delegation of powers during absence 37 Insurance of trust property 38 Renewal of leases 39 Receipts of trustee 40 Power to compromise debts 41 Distribution of estate after notice POWERS AND DUTIES OF PERSONAL REPRESENTATIVES 42 Administrator with will annexed 43 Power to sell or lease land 44 Power to sell where will annexed 45 Conveyance pursuant to contract 46 Power of administrator to mortgage 47 Surviving spouse may carry on business 48 Executor trustee of residue RESPECTING DEBTS AGAINST ESTATE 49 Liability for rents and covenants 50 General power re debts 51 Payment of debt 52 Payment of debts and legacies ACTIONS BY AND AGAINST PERSONAL REPRESENTATIVES 53 Actions by and against representatives 54 Action of account 55 Executors of executors 56 Liability for waste 57 Duties under Act SPECIAL POWERS OF COURT 58 Dealings with trust property 59 Approval of variation of trusts 60 Conveyance of lands sold for debts 61 Conveyance by life estate holder where debt of estate 62 Costs DEFICIENCY OF ASSETS 63 Rank of creditors same 64 Creditors to value security 65 Creditor to assign security 66 Failure to value 67 Act pleaded in defence TRUSTEE INVESTMENTS 68 Authority of trustee to invest 69 Corporation offerings 70 Deposit of trust moneys 71 Investment to be in trustee's name 72 Effect of instrument and Act 73 Changing of investments 74 Compromise re securities 75 Duty to take reasonable care 76 Common trust funds PROTECTION AND INDEMNITY 77 Actions pursuant to Act 78 Actions for which trustee answerable 79 Defence based on investment policy 79.1 Use of non-financial criteria 80 Breach at instigation of beneficiary 81 Actions taken in good faith 82 Protection against invalid grant 83 Revocation of erroneous grant 84 Application to court for advice TRUSTEES' ACCOUNTS 85 Audit of accounts 86 Passing of accounts 87 Passing of accounts by judge or court 88 Power of court to order accounts GENERAL 89 Payment into court 90 Allowances to trustees and personal representatives 91 Charitable and non-charitable trusts HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Definitions 1 In this Act, "assign" includes the execution and performance by a person of every necessary or suitable deed or act for assigning, surrendering, or otherwise transferring, land of which the person is possessed, either for the whole estate of the person so possessed or for any less estate; (« céder ») "common trust fund" means a fund maintained by a trust corporation in which moneys belonging to various estates and trusts in its care are combined for the purpose of facilitating investments; (« caisse fiduciaire commune ») "contingent right" as applied to land includes a contingent and executory interest, and 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, vested or contingent; (« droit éventuel ») "convey" applied to any person, means the execution and delivery by the person of every necessary or suitable assurance for conveying or disposing to another land whereof that person is seised, 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 as to the validity of the conveyance; (« transférer ») "court" means the Court of King's Bench; (« tribunal ») "devisee" includes the heir of a devisee, and the devisee of an heir, and any person who may claim right by devolution of title; (« légataire ») "instrument" includes a deed, a will and a written document and an Act of the Legislature and any order of the court made under section 59, but does not include any judgment or order of a court other than an order made under section 59; (« instrument ») "investing" includes lending money; (« placement ») "judge" means a judge of the Court of King's Bench; (« juge ») "land" includes messuages, and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties, or any of them, and any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interests, or any of them, are in possession, reversion, remainder or contingency; (« bien-fonds ») "mentally incompetent person" means a person who is not a minor and who is incapable of managing his or her affairs by reason of mental disorder, mental disability, infirmity of mind or other cause; (« personne ayant une incapacité mentale ») "mine" includes any opening, excavation or well, in, or working of, the ground for the purpose of searching for, winning, opening up, removing, proving, or storing underground, any mineral or mineral-bearing substance; (« mine ») "mining lease" means, subject to subsection 25(3), a lease for any mining purposes or purposes connected therewith, and includes a grant or licence for any mining purposes; (« bail minier ») "mining purposes" includes the making, excavating or sinking of a mine and the working of a mine and searching for, winning, opening up, removing, proving, or storing underground, any mineral or mineral-bearing substance and the erection of buildings and the execution of engineering and other works suitable for those purposes; (« fins d'exploitation minière ») "mortgage" is applicable to every estate, interest, or property in, or charge upon, land or personal estate, that is merely a security for money; and "mortgagee" has a corresponding meaning and includes every person deriving title under the original mortgagee; (« hypothèque ») "personal estate" includes leasehold estates and other chattels real, and also money, shares of government and other funds, securities for money (not being real estate), debts, choses in action, rights, credits, goods, and all other property, except real estate, that by law devolves upon the executor or administrator, and any share or interest therein; (« biens personnels ») "personal representative" means an executor, an administrator, and an administrator with the will annexed; (« représentant personnel ») "possessed" is applicable to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in any land; (« en possession ») "securities" includes stock, debentures, bonds, shares and guaranteed trust or investment certificates; (« valeurs mobilières ») "seised" is applicable to any vested interest for life, or of a greater description, and extends to estates, legal and equitable, in possession, or in futurity, in any land; (« ensaisiné ») "stock" includes fully paid-up shares, and 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; (« actions ») "transfer" , in relation to stock, includes the performance and execution of every deed, power of attorney, act or thing, on the part of the transferor to effect and complete the title in the transferee; (« transfert ») "trust" does not mean the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes implied and constructive trusts and cases where the trustee has some beneficial estate or interest in the subject of the trust, and extends to, and includes, the duties incident to the office of personal representative of a deceased person; (« fiducie ») "trust corporation" means a body corporate with powers to act as trustee, agent, executor, administrator, receiver, liquidator, assignee, guardian of a minor's estate, committee of the estate of a mentally incompetent person or substitute decision maker for property for an adult living with an intellectual disability under The Adults Living with an Intellectual Disability Act ; (« corporation de fiducie ») "trustee" includes a trustee, however appointed, and several joint trustees; (« fiduciaire ») "will" has the same meaning as in The Wills Act . (« testament ») S.M. 1993, c. 29, s. 206 ; S.M. 2023, c. 19, s. 112 . APPLICATION OF ACT Application 2 Subject to section 3, this Act applies to all trusts whenever created and to all trustees whenever appointed. Statute to be supplementary 3 The powers, rights and immunities conferred by this Act are in addition to those conferred by the instrument, if any, creating the trust; but, unless otherwise stated, in this Act or any other Act of the Legislature, they apply only if, and so far 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. Act not to vary instrument 4 Nothing in this Act authorizes a 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. JURISDICTION OF THE COURT Persons entitled to apply 5(1) An order under this Act for the appointment of a new trustee, or concerning any land or personal estate subject to a trust, may be made by the court upon the application of (a) any person creating or intending to create a trust; or (b) any person beneficially interested in a trust, whether under disability or not; or (c) any person duly appointed a trustee. In case of mortgaged land 5(2) An order concerning any land or personal estate, 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 the mortgage. Notice 5(3) Any person entitled may apply, upon notice to such persons as he may think proper, for such an order as he may deem himself entitled to. Power on hearing 5(4) Upon the hearing of the application, the court may direct, (a) a reference to inquire into any facts which require investigation; or (b) the trial of an issue; or (c) the application to stand over to enable further evidence to be adduced or further notice to be served. DEVOLUTION OF POWERS OF TRUSTEES Power devolves on survivor 6(1) Where a power or trust if given to, or imposed on, two or more trustees jointly, it may be exercised or performed by the survivors or survivor of them for the time being. Survivor may exercise 6(2) Until the appointment of new trustees, the personal representatives or representative for the time being of a sole trustee, or where there were two or more trustees, of the last surviving or continuing trustee, are or is capable of exercising or performing any power or trust that was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other, the trustee or trustees for the time being of the trust. Renouncing executor not included 6(3) In this section "personal representative" does not include an executor who has renounced or has not proved. Executor of an executor not included 6(4) The executor of any person appointed an executor under this Act is not, by virtue of such executorship, an executor of the estate of which his testator was appointed executor under this Act, whether the person acted alone or was the last survivor of several executors. RETIREMENT OF TRUSTEE WITHOUT NEW APPOINTMENT Retirement of trustee 7(1) Notwithstanding that a contrary intention is expressed in the instrument creating the trust, where a trustee is desirous of being discharged from the trust, and after his discharge there will be either a trust corporation, or at least two individuals to act as trustees to perform the trust, if the trustee by deed declares that he is desirous of being discharged from the trust, and 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 in the co-trustees alone of the trust property, the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom, without any new trustee being appointed in his place. Assurance given 7(2) Any assurance or thing requisite for vesting the trust property in the continuing trustee alone shall be executed or done. Application 7(3) This section does not apply to personal representatives. APPOINTMENT OF NEW TRUSTEES Appointment of new trustees 8(1) Where a trustee is dead, or remains out of the province for more than 12 months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is an infant, then (subject to the restrictions imposed by this Act on the number of trustees), (a) the person 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 surviving or continuing trustee, for the time being, or the personal representatives of the last surviving or continuing trustee; may, by writing, appoint a trustee in the place of the trustee so deceased, remaining out of the province, desiring to be discharged, refusing, or being unfit, or being incapable, or being an infant. Cases when appointment may be made 8(2) For the purposes of this section, (a) a trustee, whether a corporation or not, who has been removed under a power contained in the instrument creating the trust, shall be deemed to be a trustee desiring to be discharged from the trust; and (b) a corporation, being a trustee, that is or has been dissolved, 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. Persons who may appoint trustees 8(3) The power of appointment given to the personal representatives of the last surviving or continuing trustee by this section or any similar previous enactment, shall be, and shall be deemed always to have been, exercisable by the personal representatives for the time being, without the concurrence of any executor who has renounced or has not proved; but a sole or last surviving executor intending to renounce, or all the executors where all intend to renounce, has, 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, if willing to act for that purpose, and without thereby accepting the office of executor. When additional trustees appointed 8(4) Where a sole trustee, other than a trust 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 two trustees (none of them being a trust corporation), 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, the surviving or continuing trustees or trustee for the time being; may, by writing, appoint one or more additional trustees; but it is not obligatory to appoint any additional trustee, nor shall the number of trustees be increased beyond four by virtue of any such appointment. When trustee may be removed 8(5) Where a trustee remains out of the province for more than 12 months, or refuses, or is unfit to act in the trusts or powers reposed in or conferred on him, or is incapable of acting therein, or is an infant, he may be removed or discharged from the trust by such person or persons as are authorized under this section to appoint additional trustees, without the appointment of a new trustee in his place; but, a trustee shall not be removed or discharged from his trust without the appointment of a trustee in his place unless there will be remaining to perform the trust a trust corporation or at least two trustees (none of them being a trust corporation). Application of section 8(6) 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 relating to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. Mentally incompetent trustee 8(7) Where a mentally incompetent person, being a trustee, is also entitled in possession to some beneficial interest in the trust property, no appointment 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 a judge of the court to make the appointment. Application 8(8) Nothing in this section gives power to appoint a personal representative. S.M. 1993, c. 29, s. 206 . APPOINTMENT OF NEW TRUSTEES BY THE COURT Power of court to appoint 9(1) The court may make an order appointing a new trustee either in substitution for, or in addition to, any existing trustee or trustees, or although there is no existing trustee, (a) in any case where it is found inexpedient, difficult, or impracticable, so to do without the assistance of the court, in particular and without limiting the generality of the foregoing, in case of a trustee who is convicted of a crime, or is a mentally incompetent person, or is a bankrupt, or has made an authorized assignment, or is a corporation that is in liquidation or has been dissolved; or (b) in case of a personal representative desiring to be relieved from the duties of his office, or guilty of any misconduct in his office, or who refuses or is unfit to act therein, or incapable of acting therein, or who remains out of the province for more than 12 months. Removal 9(2) The court may, on an application under this section, make an order removing a trustee without appointing a new trustee in his place. Order operates as an instrument 9(3) An order under this section and any consequential vesting order or conveyance, does not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of a new trustee under any power for that purpose contained in an instrument would have operated. Directions 9(4) The court may, in its discretion, and either on request or without request, give to the trustee appointed any general or special directions in regard to the trust or the administration thereof. Security 9(5) Any personal representative appointed under this section shall, unless the court otherwise orders, give such security as he would be required to give if letters of administration were granted to him under The Court of King's Bench Surrogate Practice Act . S.M. 1993, c. 29, s. 206 . SUPPLEMENTAL PROVISIONS AS TO APPOINTMENT OF NEW TRUSTEE Powers of appointment of trustees 10 On the appointment of a trustee for the whole or any part of a trust property, (a) the number of trustees may, subject to the restrictions imposed by this Act on the number of trustees, be increased; and (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 the separate set of trustees; or, if only one trustee was originally appointed, then, one separate trustee may be so appointed; and (c) it is not 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; 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. POWERS VESTED IN NEW TRUSTEES Power of appointee 11 Every trustee appointed under this Act, as well before as after all the trust property becomes by law or by assurance or otherwise vested in him, has 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. EVIDENCE AS TO VACANCY IN TRUST Statement to be relied on 12(1) A statement, contained in any instrument coming into operation after June 30, 1931, by which a new trustee is appointed, to the effect that a trustee has remained out of the province for more than 12 months, or desires to be discharged, or refuses or is unfit to act, or is incapable of acting, or is an infant, or that he is not entitled to a beneficial interest in the trust property in possession, is, in favour of a purchaser in good faith and for valuable consideration, conclusive evidence of the matter stated. As to a purchaser 12(2) In favour of the purchaser, any appointment of a new trustee depending on that statement, and any vesting declaration, express or implied, consequent on the appointment, is valid. VESTING INSTRUMENTS Instrument of appointment vests property 13(1) Where, by an instrument, a new trustee is appointed to perform any trust, (a) if the instrument contains a declaration by the appointer to the effect that any estate or interest in any land subject to the trust, 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 instrument become or are the trustees for performing the trust, the instrument operates, without any conveyance or assignment, to vest in those persons, as joint tenants and for the purposes of the trust, the estate, interest, or right, to which the declaration relates; and (b) if the instrument is made after June 30, 1931, and does not contain such a declaration, the instrument operates as if it had contained such a declaration by the appointer extending to all the estates, interests, and rights, with respect to which a declaration could have been made. On retirement the same result 13(2) Where, by an instrument, a retiring trustee is discharged under the statutory power without a new trustee being appointed, (a) if the instrument contains a declaration as aforesaid by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, the instrument, without any conveyance or assignment, operates to vest in the continuing trustees alone, as joint tenants and for the purposes of the trust, the estate, interest, or right, to which the declaration relates; and (b) if the instrument is made after June 30, 1931, and does not contain the declaration, the instrument operates as if it had contained the declaration by such persons as aforesaid extending to all the estates, interests, and rights, with respect to which a declaration could have been made. Vesting declaration valid 13(3) An express vesting declaration, whenever made, notwithstanding that the estate, interest or right to be vested is not expressly referred to, and provided that the other statutory requirements were or are complied with, operates, and shall be deemed always to have operated, to vest in the persons respectively referred to in subsections (1) and (2), as the case may require, such estates, interests, and rights, as are capable of being, and ought to be, vested in those persons. Exceptions to application of section 13(4) This section does not extend (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; or (b) to land held under a lease that contains any covenant, condition, or agreement, against assignment or disposing of the land without licence or consent, unless, prior to the execution of the instrument 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; or (c) to any share, stock, annuity, or property, that is transferable only in books kept by a company or other body, or in manner directed by or under an Act of Parliament or of the Legislature. "Lease" defined 13(5) In subsection (4) "lease" includes an under-lease and an agreement for a lease or under-lease. For registration 13(6) For purposes of registration of the instrument, the person making the declaration, expressly or impliedly, shall be deemed the conveying party, and the conveyance shall be deemed to be made by him under a power conferred by this Act. VESTING ORDERS AND ORDERS RELEASING CONTINGENT INTERESTS Vesting orders 14(1) In any of the following cases, (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; or (b) where a trustee entitled, whether by way of mortgage or otherwise, either solely or jointly with any other person, to any land, or to stock or to a chose in action (i) is under a disability; or (ii) is out of the province; or (iii) cannot be found, or, being a corporation, has been dissolved, or its charter has been surrendered, revoked or suspended; or (iv) neglects or refuses to convey any land or interest therein, or to transfer stock or receive the dividends or income thereof, or to sue for or recover a chose in action, for 28 days next after a request in writing has been made to him by the person entitled thereto; or (c) where it is uncertain who was the survivor of two or more trustees; or (d) where it is uncertain whether a trustee is alive or dead; or (e) where there is no personal representative of a deceased trustee, or where it is uncertain who is the personal representative of a deceased trustee; or (f) where stock is standing in the name of a deceased person whose personal representative is under disability; or (g) where for any other reason 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 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 chose in action, in any such person, in any such manner, and for any such estate or interest, as the court may direct. Shares in ships 14(2) 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. Contingent rights of unborn persons 15 Where any 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, 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 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. Vesting order in lieu of conveyance by infant 16 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. On an order for sale or mortgage 17 Where a 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 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 or interest as the court thinks fit in the purchaser or mortgagee, or in any other person. On judgment for specific performance 18 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. Effect of vesting order 19 A vesting order under any of the foregoing provisions, in the case of a vesting order consequential on the appointment of a trustee, has 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 capacity, as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate or interest as the court directs; and, in every other case, has the same effect as if the trustee or other person, or description or class of persons, to whose rights or supposed rights the 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. Person to convey 20 Where a vesting order can be made under any provision of this Act, the court may, if it is more convenient, appoint a person to make or join in making the transfer, conveyance, release, or other appropriate instrument; and any such instrument executed by that person in conformity with the order has the same effect as an order under the appropriate provision. Orders conclusive evidence 21 Where a vesting order is made under this Act or under The Mental Health Act , founded on an allegation of any of the matters mentioned in section 18 of this Act, the fact that the order has been so made is conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order; but this section does not prevent the court from directing a re-conveyance or surrender or the payment of costs occasioned by any such order if improperly obtained. Vesting order as to chose in action 22 Where any order has been made under this Act by the court vesting the legal right to sue for, or recover, any chose in action or any interest in respect thereof, in any person, he may carry on, commence, and prosecute, in his own name, any action or proceedings for the recovery of the chose in action in the same manner, and with the same rights, as the person in whose place he had been appointed. TRUSTEES FOR CHARITIES Exercise of powers for charities 23 The court may exercise the powers herein conferred for the purpose of vesting any land or personal estate in the trustee of any charity or society over which the court would have jurisdiction upon action duly instituted. Power to order sale 24(1) Where land is held by trustees for a charitable purpose, and it is made to appear that the land can be no longer advantageously used for the charitable purpose, or that for any other reason the land ought to be sold, a judge may make an order authorizing the sale thereof, and may give such directions in relation thereto, and for securing the due investment and application of the money arising from the sale, as may be deemed proper. Notice 24(2) No such order shall be made unless and until notice of the application has been given to the Minister of Justice of Manitoba. S.M. 1993, c. 48, s. 104 . POWERS AND DUTIES OF TRUSTEES POWER OF SALE Power to sell by auction, etc. 25(1) Where a trust for sale or a power of sale of land or personal estate 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 any 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. Powers implied in a power to sell 25(2) A trust or power to sell or dispose of land includes, subject to subsection (3), a trust or power to (a) sell or dispose of part thereof, whether the division is horizontal, vertical, or made in any other way; (b) sell or dispose of any easement, right, or privilege of any kind over or in relation to the land; (c) sell or dispose of any or all minerals in or under the land; (d) sell or dispose of the land or any part thereof, excepting or reserving any or all minerals in or under it. Certain transactions deemed mining leases 25(3) A transaction whereby the owner of land grants to another the right to take a mineral or mineral-bearing substance from the land in consideration of future payments, the amount of which will depend on the quantity of such mineral or substance so taken, is a mining lease and not a sale or disposition of minerals within the meaning of subsection (2). Sales with deferred payments 25(4) A sale need not be made wholly for cash, but payment of all or part of the purchase price may be deferred if it is secured upon the property sold either by a mortgage thereon, which need not be a first mortgage, or by a term of the agreement for sale that title shall not vest in, or be transferred to, the purchaser until the price has been paid in full. Trustees position under subsec. (4) 25(5) Where a trustee takes a mortgage or enters into an agreement for sale pursuant to subsection (4), the trustee shall be deemed to have exercised the judgment and care that a man of prudence, discretion and intelligence would exercise in administering the property of others. Sale subject to depreciatory condition 26(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. As against purchaser 26(2) No sale made by a trustee shall, after the execution of the conveyance, 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. Title good 26(3) No purchaser, upon any sale made by a trustee, is at liberty to make any objection against the title upon any of the grounds aforesaid. LEASES, OPTIONS Leases by trustee under power of sale 27(1) Where a trust for sale or a power of sale of land is vested in a trustee, he may at any time grant leases of the land, or of any part thereof, or of any easement, right, or privilege of any kind over or in relation to the land, including mining leases, for any term, and for any purpose, whether involving waste or not. Leases by other trustees 27(2) A trustee in whom no trust for sale or power of sale is vested may grant leases, other than mining leases, of any land subject to the trust for a term which does not exceed three years from the date on which the lease is made. Premiums as capital 27(3) Any premium or down payment, other than rent in advance, paid by a lessee under a lease granted under this section is, for the purposes of the trust, capital and not income. Disposal of rent under mining leases 27(4) Unless a contrary intention is expressed in the trust instrument, under a mining lease granted under this section, whether the mines or minerals leased are already opened or in work or not, there shall be from time to time set aside as capital money of the trust one-fourth part of the rent received; and the residue of the rent shall be applied as ordinary rents and profits of the land. Grant of options under trust for sale 28(1) Where a trust for sale or a power of sale of land is vested in a trustee, he may at any time, either with or without consideration, grant by an instrument an option to purchase or take any authorized lease of the land or any easement, right, or privilege over or in relation to the land, at a price or rent which is either fixed at the time of the granting of the option, or can be effectually ascertained at the time of the exercise of the option by a method which is set forth in the instrument granting the option. Option to purchase reversion under a lease 28(2) Where an option granted under subsection (1) is contained in a lease, and is an option to purchase the reversion expectant on the term thereby granted, the option may be made exercisable at any time during the term of the lease. Option to renew a lease 28(3) Where an option granted under subsection (1), is contained in a lease, and is an option to renew the lease for a further term or terms, the option may be made exercisable at any time during the original term or during the term of a previous renewal. Term of other options 28(4) Any option granted under subsection (1), other than an option of the types mentioned in subsection (2) and (3), shall be made exercisable within a specific period not exceeding two years from the date of the grant thereof. Consideration as capital 28(5) The consideration for the grant of an option shall be deemed to be capital of the trust. Power of trustee during infancy of beneficiary 29(1) Subject to any prior interest or charges affecting the property where property is held by a trustee in trust for a person for any interest whatsoever, whether vested or contingent, (a) during the infancy of that person, if his interest so long continues, the trustee may, at his sole discretion, apply for or towards his maintenance, education, 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 (i) any other fund applicable to the same period, or (ii) any person bound by the law to provide for his maintenance or education; and (b) if that person, on attaining the age of 18 years, has not a vested interest in the income, the trustee shall thereafter pay to him the income of that property and of any accretion thereto under subsection (4), until he either attains a vested interest therein or dies, or until failure of his interest. Matters to be considered 29(2) In deciding whether the whole or any part of the income of the property is, during a minority, to be applied for the purposes stated in clause (1)⁠(a), the trustee shall have regard to (a) the age of the infant; (b) his requirements; and (c) generally to the circumstances of the case, and in particular to what other income, if any, is applicable for the same purposes. Where more than one fund 29(3) Where a trustee has notice that the income of more than one fund is applicable for the purposes stated in clause (1)⁠(a), unless the entire income of the funds is applied for those purposes or the court otherwise directs, a proportionate part only of the income of each fund shall, so far as practicable, be so applied. Investment and application of residue 29(4) During the infancy of a person mentioned in subsection (1), if his interest so long continues, the trustee shall accumulate all the residue of that income in the way of compound interest by investing it and the resulting income therefrom in authorized investments; 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. Disposal of accumulations on vesting of trust funds 29(5) Where a person mentioned in subsection (1) (a) attains the age of 18 years, and his interest in the income during his infancy is a vested interest; or (b) on attaining the age of 18 years becomes entitled to the property from which the income arose in fee simple, absolute or determinable, or absolutely, or for an entailed interest; the trustee shall pay over or transfer the accumulations to that person absolutely, subject however to any provision with respect thereto contained in any settlement by him made under any statutory powers during his infancy. Where subsec. (5) does not apply 29(6) In any case to which subsection (5) does not apply, the trustee shall, notwithstanding that the 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 the capital for all purposes. Application to contingent interests 29(7) 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 loco parentis to, the legatee, if and for such period as, under the general law, the legacy carries interest for the maintenance of the legatee. Rate of interest 29(8) In any case to which subsection (7) applies, the rate of interest shall, if the income available is sufficient, and subject to any rules of court to the contrary, be 5% per year. Application to vested annuities 29(9) 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 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. Where section not applicable 29(10) This section does not apply where the instrument, if any, under which the interest arises came into operation before the coming into force of this section. Power of court re: application of capital 30(1) Subject to subsection (3), the court has jurisdiction, on application at any time, by order to empower and direct a trustee to pay or apply any capital money subject to a trust in such manner as the court may, in its discretion, think fit for the maintenance, education, advancement, or benefit 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. Power where interest may be defeated 30(2) An order under subsection (1) may be made notwithstanding that the interest of the 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. Limitation on order 30(3) Where an order is made under subsection (1), (a) the moneys ordered to be so paid or applied, if paid and applied for a purpose other than the maintenance or education of any person, shall not exceed altogether in amount 1/2 of the presumptive or vested share or interest of that person in the trust property; and (b) if that person is or becomes absolutely and indefeasibly entitled to a share in the trust property, the money so paid or applied shall be brought into account as part of the share; and (c) no such order shall be made so as to prejudice any person entitled to any prior interest, whether vested or contingent, unless the person is in existence, and of full age, and consents in writing to the order being made. Power to raise funds 30(4) Where the trust property consists of land or any interest therein, the trustee may raise any money required for the purposes of this section by a sale thereof or by mortgaging or otherwise charging the land or interest. Payment to parent in alternative 31 A trustee who is, by this or any other Act or by the trust instrument, empowered to apply any money for the purpose of the maintenance, education, or benefit of an infant may, instead of so applying it, pay it to the parent or guardian of the infant to be used for that purpose, without seeing to the application thereof. Payment of liabilities from capital 32(1) Subject as hereinafter provided, in any case where the income and capital of the residuary estate of a deceased person are, or may become, payable to different persons or applicable for different purposes, and the will of the deceased person does not clearly direct some other method of payment thereof, the personal representative shall, for the purpose of adjusting the respective rights of the beneficiaries who are interested in the income of the residuary estate, and those who are interested in the capital thereof, treat the liabilities of the deceased, namely, (a) his debts, including all interest accrued thereon at the date of his death; (b) the funeral and testamentary expenses; (c) the pecuniary legacies bequeathed by the will; and (d) the duties and taxes payable out of the estate by reason of the death of the deceased;
