New South Wales: Underwood's Estate Act of 1873 36 Vic (NSW)

UnpERwoon's Estate. Preamble. 36° VIC. 1873. Underwood's Estate. An Act to authorize the sale of the lands and hereditaments devised by the Will of the late James Underwood and the payment of the proceeds thereof into the Supreme Court. [23rd April, 1873.] HEREAS James Underwood late of Sydney deceased being seized of the lands and hereditaments 'hereinafter mentioned and described duly made and executed his last will and testament in writing bearing date the twelfth day of March in the year one thousand eight 'hundred and forty which in so far as the same related to his real estate was in the words following that is to say "I give "and devise unto John Campbell Esquire and Robert Campbell "the " younger Esquire both of the wharf George-street in Sydney afore- " said all my messuages lands tenements and hereditaments whatsoever "and wheresoever and which I have power to dispose of by this my "will To hold the same unto the said John Campbell and Robert " Campbell their heirs and assigns for ever upon the trusts hercinafter " declared that is to say upon trust that they my said Trustees or the " survivor of them or the Trustees or Trustee for the time being of "this my will do and shall stand and be possessed of my said real * estates in the manner following that is to say As to my house and * premises situated in George-street in Sydney aforesaid occupied by " Mr. Francis Gaunson at the yearly rent of three hundred and thirty ** pounds also my house and premises in the same street occupied by ** Mr. Samuel Peek at the yearly rent of two hundred pounds upon * trust for my son Joseph Underwood and his assigns during his life "and from and after his decease upon trust for all and every such one *'or more child or children of the said Joseph Underwood in equal "shares and proportions as tenants in common in tail with cross '" yemainders between them in tail and if there shall be but one such " child the whole to be in trust.for such only child in tail and do and ** shall stand and be possessed of my house jand premises in George- "* street aforesaid occupied by Messrs. Hebblewhite and Vickery at the "yearly rent of two hundred and fifty pounds also my house and * premises in the same street occupied by the said Samuel Peck for a " term of five years at the yearly rent of two hundred pounds for my son "Edward Underwood and his children and do and shall stand and be ** possessed of my house and premises in George-street aforesaid " occupied by Mr. Cohen at the yearly rent of two hundred and twenty '"' pounds also my house and premises in the same street occupied by « Mr. William Perry at the yearly rent of one hundred and nincty " pounds for my son Richard Underwood and his children and do and * shall stand and be possessed of my house and premises situated in * Queen-street in Sydney aforesaid occupied by the said Messrs. * Hebblewhite and Vickery at the annual rent of one hundred pounds "also one hundred acres of land situated on the Liverpool Road " occupied by Mr. John Ireland and his wife at the annual rent of " fifty pounds for my son William Underwood and his children and * do and shall stand and be possessed of my premises in Underwood- ** street in Sydney aforesaid occupied by Mr. William Underwood at " the yearly rent of twenty-six pounds also two hundred acres of land "on the Parramatta Road called Fleming's Farm occupied by Mr. * Potts with other lands for my son Thomas Underwood and his "children 1873. 36° VIC. Underwood's Estate. ** children and do and shall stand and be possessed of my land situated * between George-street aforesaid and New Pitt-street at present * unoccupied as to one-third part thereof for my said son Edward "* Underwood and his children and as to one other third part thereof " for my said son William Underwood and his children and as to the "yemaining third part thereof for my grandson George Grimes son of "my daughter Mary Ann the wife of' George Grimes of Sydney "aforesaid master mariner and his children and do and shall stand "and be possessed of three hundred and nine acres of land or "thereabouts formerly Powell's property and now occupied by the " said Mr. Potts and my land at Long Cove containing one hundred "and seventy-five acres occupied by Mr. William Tavencr and the said " John Iveland as to one-fourth part thereof for my said son Joseph " Underwood and his children and as to one other fourth part thercof " for my said son Edward Underwood and his children and as to one * other fourth part thereof for my said son Richard Underwood and "his children and as to the remaining fourth part thereof for my said ** grandson George Grimes and his children and do and shall stand and "be possessed of my premises occupied by Mr. William Abercrombie "and all other my lands situated on or near the South Head Road and "all the residue of my said real estate whatsoever and wheresocver " which I shall be seized of or entitled to at the time of my deccase "as to one-fifth part thereof for my said son Joseph Underwood and "his children as to one other fifth part thereof for my said son « Edward Underwood and his children and as to one other fifth part * thereof for my said son Richard Underwood and his children and as * to one other fifth part thereof for my said son William Underwood "and his children and as to the remaining fifth part thereof for my " said son Thomas Underwood and his children Upon such and the "same trust respectively and for such and the same estates and " interests respectively as I have hereinbefore declared of the mes- " suages and premises first hereinbefore devised to my said son Joseph " Underwood and his children and as if I had again declared and " repeated these trusts each time that I devised my remaining property "using the names of the party or parties for whom the same are "intended and I do hereby declare that in case any or either of my "said five sons shall depart this life without leaving any child or * children him or them surviving then I devise the share or shares of " "such son or sons unto and cqually between the survivors and 'survivor of them my said sons and their respective heirs as "tenants in common in tail'? And whereas the said James Underwood dicd on the nineteenth day of February in the year one thousand eight hundred and forty. four without having altered or revoked his said will and leaving the several persons therein named him surviving And whereas the estates by the will of the said James Underwood originally vested in the said John Campbell and Robert Campbell are now at an end And whereas the said will of the said James Underwood contains no power or authority for the sale of the said lands and hereditaments thereby devised And whereas large portions of the said lands and hereditaments are adapted for subdivision into allotments for building purposes but in their present state are for the most part unimprov ved and unproductive and in consequence of the complication of interests in the whole of the said lands so devised by the said James Underwood it is impossible to improve or properly manage the same And whereas it is expedient that the said lands should be sold and the proceeds of such sales paid into the Supreme Court in its Equitable Jurisdiction in the matter of the trusts of the said will of the said James Underwood in trust to attend the orders of the said Court Be it therefore enacted ¢c by Legal estate to be vested in W. H. Mackenzie senior J. P. Mackenzie and R. J. King. Lands may be sold and conveyed to purchaser. Credit may be given to purchasers for payment of part of purchase money. Proceeds how dealt Proceeds to be dealt with as under 21 Victoria No. 7. 36° VIC. 1873. Underwood's Estate. by the Queen's Most Excellent Majesty by and with the advice and consent. of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows :— 1. From and after the passing of this Act the legal estate of and in the lands and hereditaments devised by the said will of the said James Underwood shall for the purposes of this Act vest in William Henry Mackenzie senior accountant John Piper Mackenzie Official Assignee of Insolvent Estates and Robert John King merchant all of Sy dney aforesaid their heirs and assigns as joint tenants. 2° Tt shall be lawful for the said William Ho nry Mackenzie senior John Piper Mackenzie and Robert John King or other the Trustees or Trustee for the time being of this Act to sell the said lands and hereditaments or any part thereof either by public auction or by private contract and in such parcels or allotments and with such rights-of-way in and over such lands or any portion thereof as they or he shall deem expedient subject to such terms and conditions and for such price or prices as can be reasonably obtained for the same and when sold to convey to the purchasers their heirs and assigns or to such uses and in such manner as any such purchasers may direct or require and thereupon the said lands and hereditaments so con- veyed and the legal estate therein shall vest absolutely in the persons to whom the same shall be so conveyed their heirs and assigns or go and remain to such uses and in such manner as aforesaid freed and discharged from any trusts created by the said will. 38. It shall be lawful for the said William IWenry Mackenzie senior John Piper Mackenzie and Robert John King or other the Trustees or Trustee for the time being of this Act to allow to any purchaser credit for any number of years not exceeding three years for payment of a part of his purchase money upon such terms as to interest and otherwise as may by the said William Henry Mackenzie senior John Piper Mackenzie and Robert John King or other the Trustees or Trustee be deemed reasonable and proper Provided that the land shall remain unconveyed or be otherwise rendered a security by mortgage for so much of the purchase money thereof as shall remain unpaid together with the interest thereon until the same shall have been paid. 4. It shall be lawful for the said William Ifenry Mackenzie senior John Piper Mackenzie and Robert John King or other the Trustees or Trustee of this Act for the time being on the receipt of the proceeds of the sale of any property sold under the provisions of this Act to deduct the costs and expenses of and incidental to such sale and also so much of the costs and expenses of all parties of and incidental to the passing of this Act as shall be fairly chargeable to the several parties interested in the property out of the sale of which such proceeds shall have arisen having regard to the amount of -the interest of each of such several parties therein And the said William Henry Mackenzie senior John Piper Mackenzie and Robert John King or other the Trustees or Trustee aforesaid shall after deducting such costs and expenses of sale and costs of passing this Actas aforesaid pay the balance of the said proceeds together with the rents if any received in respect of the same premises into the Supreme Court of New South Wales in its Equitable Jurisdiction in the matter of the said will and to an account to be entitled in the trusts of the said will as affecting the property out of the sale of which the said proceeds have arisen. 5. The certificate of the Master in Equity of the fact of the money being so paid shall be a sufficient discharge for the money so paid and the Court shall have the same power to apply and deal with such 1873. 36° VIC. 35 Isler's Estate. such moneys in every respect as if the same had been paid into Court under the Act passed in the twenty-first year of Her present Majesty's reign intituled "dn Act for the better securing Trust Funds and for relief of Trustees." 6. It shall be lawful for the Supreme Court in Equity from Remuneration. time to time to allow to the said William Ienry Mackenzie senior John Piper Mackenzie and Robert John King or other the Trustces or Trustee for the time being of this Act such commission or per- centage as shall be just and reasonable for their or his pains or trouble in effectuating such sale or sales or otherwise in exercising the powers and performing the dutics hereby conferred and imposed. 7. Whenever any of the Trustees herein named shall die or go Provision for to reside out of the Colony of New South Wales or shall desire to be appointment of new discharged from or refuse or become unfit or incapable to act in the trusts in him reposed before the same shall have been fully discharged and performed he shall be held to have vacated the said trusts and it shall be lawful for the surviving or continuing Trustees or Trustee for the time being or the acting executors or administrators of a last surviving or continuing Trustee or for the last retiring Trustees or Trustee by instrument in writing to appoint any new Trustce or Trustecs in the place of the Trustce or Trustees so vacating as aforesaid and as often as any new Trustec or Trustecs shall be so appointed as aforesaid all the trust property then remaining unconveyed shall by virtue of such instrument and without other assurance in the law be divested out of the surviving or continuing Trustee or Trustees and the Trustce or Trustees so vacating as aforesaid and shall become and be vested in the new Trustee or Trustees cither solely or jointly with the surviving or continuing Trustecs or Trustee and every new 'Trustee to be appointed as aforesaid shall have the same powers authorities and discretions as if he had been originally named a Trustee in this Act. 187 8. This Act may be cited as "Underwood's Estate Act of Short title. 3." .