New South Wales: McQuade Estate Act of 1894 57 Vic (NSW)

An Act to authorise the receipt and invest- 'evs sam. ment by the Trustees of the will of William McQuade of certain compensation moneys payable by the Government of the Colony of New South Wales, and to add to the powers of investment under the said will. [29th March, 1894. | . AT IEREAS William McQuade, late of Potts' Point, near Sydney, Preanble. in the Colony of New South Wales, deceased, being at the date of his death seized, possessed of, or otherwise well entitled to certain real and personal estates in the said Colony, duly made and executed his last will and testament, bearing date the sixth day of February, one thousand eight hundred and eighty-five, whereby after making certain bequests which are not material to be herein sct forth, and after reciting (as the facts were) that under the will of their grand- father James Hale, who died on the twenty-first day of June, one thousand eight hundred and fifty-seven, the testator's three sons William James ale McQuade, Henry Michael ITale McQuade, and Arthur Frederick Wale McQuade were entitled to the following propertics, namely :—The farm and homestead situate at Cornwallis, then occupied and under lease to Thomas Cupitt, about twenty-five acres; also the farm situate at Cormwallis aforesaid, then oceupied by John Wood; also all that land and property situate in Gcorge-strect, in the city of Sydney, then occupied by J. 8. Abrahams, as a chemist shop; also all that land or property situate in George-street, Sydney, aforesaid, and adjoining the last-mentioned shop, then occupicd by Lysacht, as an hotel ; also all that land and property situate in George- street, Sydney, aforesaid, and occupied by C. Hater, as a jeweller's shop; also all that land and property used as a shop, situate at the corner of Hunter and George Streets, Sydney, aforesaid, then occupied hy D ILume, as a chemist's shop; also all that land and property situate in George-strect, Sydney, aforesaid, and occupied as a shop by, or leased to, C and A Iluenerbein, as a music warchouse ; also all that land and property situate in UWunter-street, Sydney, aforesaid, and then Jeased to George John Wells, as two shops ; also all that land and property situate in George-street, in the town of Windsor aforesaid, and occupied by John Lenry Crowley, as a dwelling- 24. 57° VIC. 1894. Me Quade Estate. dwelling-house and shop ; also all that paddock in Macquarie-strect, Windsor, aforesaid, occupied by the said John Henry Crowley ; also all that land and property situate in Geor ee-street, Windsor, aforesaid, occupied as a saddler's shop, by William. Linsley, and adjoining the shop in the occupation of the said John Henry Crowley; also all that land and property or farm situate at Emu Plains, in the said Colony, and occupied by one Daniel Upton; and after reciting that the said testator had purchased from his two sons, the said William James ILale McQuade and Henry Michael Hale McQuade, their shares and interest in all the properties above-mentioned, and had also obtained a conveyance from his son, Arthur Frederick Hale McQuade, of his share and interest in all the said properties situate in the town or district of Windsor, and that it was his intention to settle the shares of his three sons under that his will in manner thereinafter mentioned, the said testator thercby gave and devised all the real estate to which ie should be entitled at the time of his death, or which he should ave power to dispose of unto the said Henry Michael Hale McQuade and his heirs, to the use of John McLaughlin, of Sydney, solicitor, ind the said Henry Michael Hale McQuade and their heirs, to hold the same upon the trusts thereinafter declared, and he bequeathed all 1is personal estates (including personal estate which he should have ower to appoint) not therein otherwise disposed of to the said John MeLanghlin and Ienry Michacl Hale McQuade, their executors anc administrators, upon the trusts thereinafter declared; and he directed hat the share of his son, William James Hale McQuade, should consist of the following properties, namely :— One-third of the lands and ereditaments mentioned above as devised by the will of the said James Hale, except the properties situated in Windsor; and also al that land and property situate in Goulburn and George Streets, in the city of Sydney aforesaid, on which is erected a hotel and four houses, then occupied by or leased to one Thompson; and also all that lanc situate in George-street, Sydney, aforesaid, occupied by Parry anc McRae; also the land in Pitt-street, in the said city, on which is erecte a shop or building then leased to and occupied by the Compagnoni Catermg Company (Limited); also all that picce or parcel of lanc situate and lying in the parish of Alexandria, city of Sydney, in the county of Cumberland, Colony of New South Wales, and be the thereinafter mentioned dimensions all more or less, being portion of John Wylde's eleven acre grant at Potts' Point: Commencing on the western side of W yide- strect, at the north-east corner of F Hilly's property; and bounded on the east by a private entrance opening on Wylde-street, by a line along a stone wal bearing northerly sixty-six feet; and thence on the north-east by a line to the centre of 'said w all, and by a line along the centre of said wall, being a curve bearing south-easterly one hundred and fifteen feet ; on the north by a line bearing west ten degrees north to a point on Woolloomooloo Bay fifty-seven feet southerly from the top of the boat steps ; on the west by that bay southerly to the north-west corner of F Hilly's property ; on the south-east and again on the south by lines bearing east thirty-one degrees north thirty-two feet six inches, east twenty degrees north one hundred and four feet, cast ten degrees north forty- nine feet, north fifty degrees thirty minutes east forty. two feet; and thence northerly along a stone wall one hundred and tw enty feet, and again by a stone wall beari ing casterly one hundred and twenty feet to the point of commencement ; "also one equal third share of his residuary real and personal estate; and the said testator thereby empowered his said trustees out of the said residuary estate to ercet a house on the said lands at Potts' Point aforesaid, at a cost of not more than three thousand pounds, if he should not build such house in his lifetime, ft 1894. 57° VIC. McQuade Estate. lifetime, or if the said William James Hale McQuade should himself erect a residence at the same or greater cost to allow him that sum for such erection; and he directed that the share of his said son, Henry Michael Hale McQuade, should consist of the following properties, namely :—One-third share of the lands and hereditaments above- mentioned as devised by the will of the said James Hale, not situate in Windsor, and the whole of such part of the said lands as were situate in Windsor aforesaid, and also all his property situate in Emu Plains aforesaid; also all his lands situate in Pitt and Market Streets, Sydney, aforesaid, then leased to and held by James Allison, Esquire, and upon which ILer Majesty's Theatre and Opera louse Company (Limited), were about to erect a theatre and other buildings ; also his jiand situate at Gcorge-street, in the city of Sydney, then or lately oceupied by or known as the City Catering Company, and leased to Messicurs Allt and Company ; and also all other lands belonging to him in the district of Windsor aforesaid, except the property oc coupied by Crowley and Linsley; also all that portion of his land at Potts' Point, and lying in the 'parish of Alexandria, city of Sydney, in the county of Cumberl: ind, Colony of New South "Wales, and be the thereinafter mentioned dimensions all more or less, and being portion of John Wylde's cleven acres grant at Potts' Point, commencing at the termination of the western side of Wylde-street ; and bqundcd on the south part of the termination of saic strect bearing easterly six fect six inches; on the east by a line bearing north nineteen degrees thirty minutes west and parallel to the castern side of the house and six fect distant therefrom to the waters of Port Jackson ; on the north-west: and west by Port Jackson and Woolloomooloo Bay south-westerly and southerly toa point fifty-seven feet southerly from the top of the boat steps ; on the south by a line hearing cast ten degrees south to the end of a stone wall with an iron vailing thereon; on the north-cast by the centre of said wall, being a curved line bearing south-easterly onc hundred and fifteen feet; on the south by a private entrance bearing easterly thirty-four fect six inches to Wilde-street, and on the east by that street bearing north nineteen degrees thirty minutes west ninety- two fect to the point of commencement, upon part of which his residence, Bomera, was then erected; also one equal third share of all other his residuary, real, and personal estate; and the said testator directed that the share of his son, the said Arthur Frederick Hale McQuade, should consist of the following properties, namely :—Al his land in Goulburn and Sussex Streets, Sydney, known as the Friendship Inn, then leased and occupied by William Hennessy ; also all his land in Geor ec-strect, Sydney, aforesaid, on which were crected two shops, then leased by Mr. Bond; andalso the remaining portion of his land at Potts' Point, and lying in the parish of Alexandria, city of Sydney, in the county of Cumberland, Colony of New South Wales, and be the thereinafter mentioned dimensions all more or less, and being portion of John Wyldc's eleven acre grant at Potts' Point, eom- mencing at the termination of the eastern "side of Wylde-strect ; and bounded on the south by the termination of said street bearing westerly forty-two feet; on the west by a line bearing north nineteen degrees thirty minutes west, and parallel to the eastern side of the house, and six feet distant therefrom to the waters of Port Jackson; on the north by Port Jackson casterly to Flood's boundary ; and on the east by that boundary as indicated by walls bearing south twenty-one degrees west to the point of commencement, together with a sum of three thousanc pounds for the erection of a residence upon the same conditions and terms as the house to be crected for his son, William James Hale McQuade ; also one-third share of all his residuary, real, and personal estate; and he directed that his trustees should stand seized 57° VIC. 1894. Ue Quade Estate. seized and possessed of the share of his son, the said William James ILale McQuade, upon trust if the said William James Hale McQuade should not by reason of any anteecdent bankruptcy or insolvency or alienation or charge or attempted alienation or any other event (whether occurring in the testator's lifetime or after his decease) be disentitled personally to receive and enjoy the income to the same share or any part thereof, to pay the same income to the said William James Hale McQuade during his life, or until he should become bankrupt or insolvent or alienate or charge the same income or some part thereof, or affect so to do, or the happening of any other event disentitling him personally to receive and enjoy such income or some part thereof, and after the failure or determination in the lifetime of the said William James Hale McQuade of the trust in his favour lastly thereibefore declared upon trust from time to time during the remainder of the life of the said William James Tale McQuade, in the absolute and uncontrolled discretion of his trustees, to cither pay or apply the whole or any part of the same income as the same should acerue for or towards the maintenance and personal support of all or any one or more to the exclusion of the others or other of the following persons, namely, the said William James Hale McQuade and his wife and issue (whether children or more remote) for the time being in existence, and if more than one in such shares and in such manner as his trustees in their absolute discretion should think fit, or to pay or apply the whole of the said income or so much thereof as should not be applied under the discretionary trust or power lastly thereinbefore contained to the person or persons or for the purposes to whom and for which the said income would for the time being be payable or applicable if the said William James Hale McQuade were then dead ; and from and after the death of the said William James Lfale MeQuade upon trust to pay to his widow (if any) one moicty of the same income and subject thereto as to as well the inheritance and capital of the said share as the income thereof upon trust for all or any one or more of the issue of his said son William James Hale MeQuade, in such proportions, and for such interests to be absolutely vested within twenty-one years of his decease, as he should by deed or will appoint; but no child in whose favour or in favour of any of whose issue an appointinent should be made should partici- pate under the trust thercinafter contained in the unappointed portion of the said shares without bringing the benefit of such appointment into hotch-pot, and in default of appointment or subject to any partial appointment in trust for children of his said son, who being sons should attain the age of twenty-one years, or being daughters attained that age or were married under that age, such children, if more than one, to take in equal shares. And the said testator directed his said trustees to stand seized and possessed of the respective shares of his said sons, UWenry Michael Hale McQuade and Arthur Frederick Hale McQuade, upon such trusts, with such powers and such limitations in favour of his said last-mentioned sons respectively and their respective wives, children, and issue as should correspond with the therein preceding trusts, powers, and limitations in favour of his son, the said William James Hale McQuade, and his wife, children, and issue: Provided always that in case all the trusts thereinbefore declared concerning any of the said shares into which his estate was thercin- before divided; should determine or fail to take effect, then and in every such case the share as to which there should be such determi- nation or failure (including any additions which might have been made thereto by way of accrucr under the clause now in statement, and any accumulation which might have been added thereto, or the income thereof, or so much thereof respectively as should not have become 1894. ov" VIC. Me Quade Estate. become vested, or been applicd or disposed of under or by virtue o the trusts or powers of that his will) should (subject and without prejudice to the trusts, powers, and provisions thercinbefore declarec concerning such share and the income thereof) go and accrue by way of addition in equal proportions to the other shares in his saic estate, and so that every such accruing share should thenecforth be held upon and for the same trusts and purposes (so far as subsisting and capable of taking effect) as were thereinbefore declared of and concerning the original share to which the same should be added anc be considered as forming part thereof for all purposes: Provided always that if there should be no child of any of his sons who, being a son attained the age of twenty-one years, or being a daughter should attain that age or be 'married, then subject to the trusts, powers, and provisions thereinbefore contained, his trustees should stand seized and possessed of his said estates upon trust, as to one-half moiety for his brother John McQuade, of Windsor aforesaid, and as to the other half moicty upon. trust. for the half brothers and sisters of his late wife, Amelia Ann McQuade, in equal shares as tenants in common, the issuc of his deceased brother or sister taking the share that would have belonged to their parent or ancestor per stirpes and not per capita ; and if at his death there should be living neither the said John McQuade, nor his issue, nor any other brother or sister, or issue of any deceased brother or sister, or half brother or sister of his said wife, upon trust for such persons as under the statutes for the distribution of the effects of intestates would have been entitled thereto if he had dicd intestate without leaving a widow, child, or other issue, such persons to take in the proportions prescribed by the said statutes. And he directed his said trustees to sell and convert into money all his residuary persona estate, or such part thereof as should be of a saleable or convertible nature, and to get in the other parts thereof. And he directed his trustees to hold the moneys to arise from such sale, conversion, anc vetting in, upon trust thereout in the first place to pay the expenses incidental to the execution of the preceding trust, and his debts and funcral and testamentary expenses, and in the next place to pay the peeuniary legacies thereinbcfore bequeathed, and to invest the surplus of the moncys as thercinafter mentioned. And he empowered his said trustees to scll all such parts of his real estate as were not specifically mentioned in his will, and his real estate, purchased under the power in that behalf thercinafter contained, by public auction or private contract, together or in parcels, subject to such terms and conditions as to title or evidence, or commencement of title, or the time or mode of pay- ment of the purchase moncy, or indemnity against, or apportionment of encumbrances, or as to any other matters relating to the sale, as they should judge expedient. And to fix reserved biddings, and to buy in property for sale, and vacate or vary contracts for saie, and to resell as aforesaid without liability to answer for consequential loss, and generally to effect the sale and conversion of such parts of his estate as were directed or authorised to be sold and converted, on such terms and in such manner as they should deem most advantageous; and, in particular, as to any of his said estates under which there are or are supposed to be minerals, the said testator empowered his said trustces to scll the surface apart from the minerals, or to sell the minerals together with or apart from the surface; and to grant or reserve such rights of way, air, and water of in-stroke and out-stroke and other easements in, upon, over, or under any of the said estates as might be necessary or desirable for the most effectual and advantageous mining and working, storing, manufacturing, sclling, and carrying away of such minerals or any mincrals under adjacent or neighbouring lands; and he directed that his trustees should invest the wn ov VIC. 1894. Me Quade Estate. the moneys to arise from the sale of any part of his real estate in the manner thereinafter authorised, and should hold the funds and securi- ties whereon such investments should be made upon the same trusts as the real estate from the sale of which such moneys arose; and he declared that his trustees should have a discretional power to postpone for such period as they should deem expedient the conversion or getting in of any part of his residuary personal estate, but the yearly proceeds thereof should be deemed annual income for the purposes of the trusts of his will as if the same were income arising from author- ised investments ; and he empowered his trustees to manage and order all affairs connected with his estate, or any part thereof, as regards let- ting, occupation, cultivation, repairs, insurance against fire, receipt of rents, indulgenees and allowances to tenants, and all other matters, and in the execution of the power of letting to grant building and repair- ing, improving or mining leases for any tern not excecding fourteen years, and other leases for any term not exceeding twenty-one years, for such terms, at such rents, and generally on such conditions as his trustees should deem advantageous, after taking or not taking fines or premiums, which, if taken, should be considered as capital ; and he directed that all investments of moneys to be made by iis trustees should be made in their names in Government deben- ures or in the purchase of shares in any banking or insurance company, carrying on business in the Colony of New South Wales, or on mortgage or purchase of real or leasehold estate in the said Colony, or on fixed deposit in a banking company therein; and 1c empowered his trustees to vary such investments from time to time for others of a like value; and he empowered his trustees to apply all or any part of the yearly income to which, under any of the dispositions thercinhefore contained, any infant should be entitled or presume to be entitled in possession towards the main- tenance and edueation, or otherwise for the benelit of such infant, or at the option of his trustees to pay the same into the hands of the parent or guardian of such infant to be so applied, but for the application thereof by such parent, or guardian, his trustees should not be responsible ; and empowered his trustees with the consent of the respective prior life owners if any, and if none at the discretion of his trustees to advance and apply any part not exceeding one half of the capital to which, under any of the said dispositions, each or any infant should be entitled, ov presume to be entitled in or towards his or her advancement or preferment in the world; and he thereby declared that notwithstanding the restriction thereinbefore mentioned as to alicnation of any real estate by his said sons, it should be lawful for any of his said sons to convey and transfer any lands of which he may have devised to him by that his will, a one-third undivided share or interest into his trustees for the time being of that his will, such son conveying as aforesaid to receive from his said trustees in exchange, such other lands by way of equality of exchange as should be agreed between such son and his said trustees, such lands or the interest therein to be held by his trustees upon the same trusts and limitations as those given in exchange therefor were previously held by his said trustees; and he empowered and directed his said trustees for the time being with the consent of his said son, enry Michael Hale M'Quade, if they should see fit at any time to sell all or any land situate in the district of Windsor, execpt his estate called " Fairfield," which his said trustees held in trust for the use of his said son Henry Michael Hale McQuade, his said trustees having similar and full powers vested in them as regards the sale of the said lands as they had in respect. of his residuary real estate, and the moneys and proceeds of such sale or sales should be held by his said trustees upon the same trusts and limitations 1894. ov VIC. MeQuade Estate. limitations as the lands so sold as aforesaid were held by them; and he declared that. the expression 'my trustees" used by him in that his will should be construed as comprising and referring to the trustees or trustee for the time being of that his will, and 'that the power of appointing new trustees of 'his will should be exercisable by said three sons or the survivors or survivor of themand the continuing trustee during the lifetime of his said sons, and after the death of the survivor by the persons and in manner by law preseribed, and that the number of trustees might from time to time be varied, but so that it be not Iess than two; and he declared that in addition to the ordinary indemnity given to trustees by law, his trustees should not be answerable for any loss which might arise 'from purchasing land or lending money on mortgage with less than a marketable title. As to estates hel by him in trust. or by way of mortgage, he devised the same. to his trustees, their heirs, exee utors, administrators, and assigns, subject to the trusts and equities alfeeting the same. And he thereby revoked all other wills and codicils at any time previously made by him.