Pringle’s Estate Mortgaging Act 1886 50 Vic (NSW)

An Aet to enable the Trustees of the will of tu sas's kerr Morte aGine. the late Robert Pringle of Tamworth in — the Colony of New South Wales to borrow money by mortgage and pledge of certain real and personal estate devised and bequeathed by the said Will for the pur- pose of enabling the said Trustees to pay off a ecrtain debt owing by the said Testator and certain debts incurred by the said Trustees in administering the said estate and to enable the said Trustees to improve the same. [1st July, 1886.] J UEREAS Robert Pringle late of Tamworth in the Colony of New Preamble. South Wales gentleman deceased duly made his last will dated the eighteenth day of January one thousand eight hundred and seventy- five and thereby appointed John M'Donald of Tamworth in the Colony of New South Wales Clerk of Petty Sessions William Frederick M'Carthy of Sydney in the said Colony solicitor and David Williamson Irving of Tamworth aforesaid Police Magistrate executors and Trustees thereof and declared that the Word Trustees whenever in the said will used should mean the said Trustees and also any new Trustees to be appointed from time to time thereafter and the survivors and survivor of any such 'Trustees or Trustee named or thereafter to be appointed as aforesaid and the continuing or acting 'Trustees or Trustee and the heirs exccutors and administrators of the last surviving or continuing or acting 'Trustee in case of a vacancy in the trust but only so long as such vacancy should exist And by his said will the said testator gave and ad devised 50, VIC. 1886. Pringle's Estate Mortgaging. devised. all the houses messuages lands hereditaments and real estate of or to which he was then or at his death should be scized or entitled at law or in equity or of which he had or should have power to dispose of by will (except what he otherwise disposed of by his said will or any codicil thereto) unto and to the use of his said Trustees according to the nature thereof respectively Upon trust that they the said Trustces should whenever it should seem to them wise to do so sell the same either entirely and altogether or in parcels and either by public auction or private contract with power to buy in and rescind any contract for sale of the said premises or any part thereof and to resell the same without being answerable for any loss which might happen thereby and also with power to insert any special or other stipulations in any contract for or conditions of sale either as to title or evidence of title or other- wise and with powers to execute make and do all such conveyances assurances and things for effectuating any such sale as aforesaid as might be necessary or expedient and as to estates or property vested in him as Trustee or mortgagee he gave and devised the same to his said Trustees to hold upon and subject to the trusts or equities affecting the same respectively And as to his estate called Summer Hill situated on the Peel River consisting of the dwelling-house store and other outbuildings and the garden orchard and paddocks used and enjoyed therewith he directed that his daughter Mabella Winton M'Carthy the wife of Herbert Tiffin Stephen M'Carthy should subject to the. rusts provisos and declarations therein contained be permitted to occupy the same as tenant at will of his said Trustees at a weekly rent of one peppercorn if demanded provided she should keep the building and fences in good repair making due allowance for ordinary wear and tear until his said Trustees should sell the same or otherwise determine the said tenancy And as to his estate called "Bective House" situated in the township of Bective consisting of a dwelling-house and outbuildings together with the garden and cultivation paddocks appurtenant thereto and generally used and occupied therewith and also four or six acres of land in front of Bective House he directed that his daughter Catherine Janette Kingscote the wife of William Anthony Kingscote Esquire should subject to the trusts provisos and declarations thercin contained be permitted to occupy the same asa tenant at will of his said Trustees at a weekly rent of one peppercorn if demanded provided she should keep the buildings and fences in good repair making due allowance for ordinary wear until his said Trustees should sell the same or otherwise determine the said tenancy. And he directed. that if either of his said daughters should die leaving a husband her surviving such husband should be permitted to continue in occupa- tion of the said premises and subject to the same trusts provisions and declarations and conditions and upon the same terms as the daughter so dying was permitted to ocewpy Provided nevertheless and he thereby empowered his said Trustees at their discretion to dispense with the condition for repairing the building and fences at Summer Hill and Beetive aforesaid and to cause such repairs to be made and to charge the expense thereof to the general account of the station expenses And he authorized his said Trustees to expenda sum not exceeding one thousand pounds out of the annual profits of his station for any year in erceting a new dwelling-house and ont-buildings at Summer H. ave for his daughther Mabella Winton M 'Carthy in lieu of the dwelling now occupied by herat Summer Hill and he gave and bequeathed "the stores furniture plate linen china carriages carts horses harness and domestic or agricultural utensils and implements on or belonging to his said Summer Hill Hstate (except the general station stores and the horses earts harness and working plant of his stati ion) to his 1886. 50° VIC. Pringle's Estate Mortygaging. his said daughter Mabella Winton M'Carthy for her sole and separate use independently of the debt or control of her present or any future husband And he gave and bequeathed the stores furniture plate linen china carriages carts harness and implements on or belonging to his said Bective Estate (except the goods in the store at Bective afore- said) and the horses carts harness and working plant of his saic stations to his said daughter Catherine Janette Kingscote for her sole and separate use independently of the debts or control of her present or any future husband And he gave devised and bequeathed according to the nature of the property unto and to the use of his said Trustees their heirs executors administrators and assigns his stations known as Bugeyegullion North and Bugeygullion South and Coomoo Coomoo and Mooki and the Dumbles in the district of Liverpoo Plains and the Retreat in the district of New England and all frechol« and conditionally purchased land usually occupied with and treated as forming part of such stations respectively and all the live stock depastured thereon respectively upon trust until the same or any par thereof should be sold or partitioned under the powers of sale and partition therein contained to carry on and manage the said stations respectively remaining unsold as one single and entire concern in the same or similar manner as or to which the same should have been managed and carried on up to the day of his decease with full power to his said 'Trustees to do all such acts in the course of such manage- ment and carrying on as they might in their discretion think proper and inclusive of a power of acquiring or purchasing adjacent frechold lands or any portion or portions of the said runs from the Crown at public auction or by selection or otherwise and of converting the conditionally purchased land on the said stations into freehold provided however that unless the annual profits of the said stations should excecd four thousand pounds his said Trustees were not to expend money in the conversion of the said conditionally purchased land into freehold and in as full and ample a manner as if his said Trustees were absolutely owners of the said station property And he directed that his said Trustees should in each and every year until all his debts and liabilitics duc at the time of his death were paid and satisfied pay to the said Ierbert Tiffin Stephen M'Carthy or to any future husband of his said daughter Mabella Winton M'Carthy a yearly sum of five hundred pounds for his own absolute use and to his said daughter Mabella Winton M'Carthy a yearly sum of five hundred pounds during her life for her separate use as thereinafter provided and so soon as all his said debts and liabilities should have been paid and satisfied should pay to the said ILerbert Tiffin Stephen M'Carthy or to any future husband of his said daughter Mabclla Winton M'Carthy a yearly sum of five hundred pounds for his own absolute use and should pay the balance (after deducting the said sum of five hundred pounds) of the half part of the clear annual income of his said station property to his said daughter Mabella Winton M'Carthy during her life for her separate use as thereinafter provided And from and after the death of his said daughter Mabella Winton M'Carthy (if all his said debts and liabili- tics should not then be paid and satisfied) should pay the yearly sum of one thousand pounds or (if all his said debts and liabilities should then have been paid and satisfied) should pay the whole of the said half part of the clear annual income to the surviving husband of his said daughter Mabella Winton M'Carty during his life or until he should become insolvent or should do or suffer any act or thing whereby the same would become payable to any other person And he also directed that his Trustees should in cach and every year until all his said debts and liabilities were paid and satisfied pay to the said William Anthony Kingscote or to any future husband of his said daughter bo 50° VIC. 1886. Pringle's Estate Mortgaging. daughter Catherine Janette Kingscote a yearly sum of five hundred pounds for his own absolute use And to his said daughter Catherine Janette Kingscote a yearly sum of five hundred pounds during her life for her separate use as thereinafter provided and so soon as all his said debts and liabilities should have been paid and satisfied should pay to the said William Anthony Kingscote and to any future husband of his said daughter Catherine Janette Kingscote a yearly sum of five hundred pounds for his own absolute use and should pay the balance after deducting the said sum of five hundred pounds of the half part of the clear annual income of his said station property to his said daughter Catherine Janette Kings- cote during her lite for her separate use as thereinafter provided And from and after the death of his said daughter Catherine Janctte Kingscote (if all his said debts and liabilities should not then have been paid and satisfied) should pay the whole of the said half part of the said clear income to the surviving husband of his said daughter Catherine Janette Kingscote until he should become insolvent or should do or suffer any act or thing whereby the same would have become payable to any other person And he direeted that in cach and every case in which in that his said will he declared any rents issues profits annual income or proceeds to be payable to any surviving husband of either of his said daughters until he should become insol- vent or do or suffer any act or thing whereby the same rents issues profits annual income and proceeds should become payable to another person in cach and every such case when any such surviving husband should become insolvent or do or suffer any such act or thing as aforesaid it should be lawful for his said Trustecs from time to time to pay to such husband such sum or sums of money not exceeding five hundred pounds as they should consider proper for his support if he should in writing require the same and subject to such payment the rents issues profits annual income and proceeds made payable to him should immediately thereupon go over to the person or persons entitled to the same on his death and should be paid and applied as if such surviving husband was then dead he empowcred his said Trustees when and as they should find it necessary or expedient to do so in order to effectuate any of the purposes of his will or to discharge any of his debts or liabilities to raise money by mortgaging in fee or for years or by charging his said estates or any part thereof and to do all acts requisite for effecting any such mortgage or charge And he empowered his 'Trustees with the consent in riting of the person or persons for the time being entitled thereto in possession or if such person or persons should be under disability by reason of coverture or infancy then with the consent in writing of the husband or guardian as the case might be of the person or persons so under disability to sell his said estates known as Summerhill and Beetive or cither of them and cither separately or together with his stations known as Buggygullion North and Buggygullion South and Coomo Coomo and Mooki and The Dumbles in the district of Liverpool Plains and the Retreat in the district of New England or any of them and all or any part of the frechold and conditionally purchased lands usually occupied with and treated as forming part of said stations or any of them and all the live stock depastured thereon or any of them or any part or parts thereof respectively cither entirely and altogether or in lots and cither by public auction or private' contract. with power to buy in and to rescind any contract for sale of the said premises or any part thereof and to resell the same without being answerable for any loss which might happen thereby And also with power to insert any special or other stipulation in any contract for or conditions of sale cither as title or evidence of title or otherwise or to make partition of his 1886. 50° VIC. Pringle's Estate Mortgaging. his properties stations and premises or any of them with power to execute make and do all such conveyances transfers assurances and things for effecting any such sale or partitions as aforesaid as might be necessary or expedient And he directed that if no partition should have been made under the power last aforesaid and so far as such partition should not extend his Trustees should scll in manner aforesaid (should they not have previously done so) his said estates stations freehold lands conditionally purchased lands and live stock depasturing thereon as soon as they conveniently could after the decease of his said daughter Mabella Winton M'Carthy and of her present husband (or any future husband to whom she might be married) or after the deccase of his said daughter Catherine Janctte Kingscote and of her present husband (or of any future husband to whom she might be married) whichever of said events should first happen And he gave bequeathed and devised according to the nature of the property all the residue of his real and personal estate and all the moncy securities for money goods chattels credits and other personal estates of or to which he was then or at his death should or might be possessed or entitled cither at law or in equity or of which he then had or at his death should have power to dispose of by that his will (and except what he had otherwise or should thereafter otherwise dispose of by his said will or any codicil thereto) unto and to the use of his said Trustees their heirs executors administrators and assigns upon trust that they should as soon as conveniently might be alter his death call in sell dispose of and convert into money such parts thereof as should not consist of money Provided that his said Trus- tees might keep on foot any investments or securities which might be oxisting at the time of his death if they should deem it advisable so todo And he thereby declared that his said Trustees should by and out of the moneys to arise from the mortgage or sale of his said real estate stations and live stock and from the investments and sccurities which might be kept on foot by the said Trustees and from the calling in sale and conversion into money of such parts of the said personal estate thereinbefore bequeathed as should not consist of money and by and out of the ready money of which he should be possessed at his death pay his debts funeral and testamentary expenses and the legacies (if any) bequeathed by his said will or any codicil thereto and should invest the residue of the same moncys in the name or names of his said 'Trustees in Government securities in Great Britain or any of the Australian Colonies inclusive of New Zealand or shares of Joint Stock Companies paying a yearly dividend or on mortgage or purchase of yoal estate in Great Britain or any of the Australian Colonies inclusive of New Zealand as aforesaid And as to a moicty of the annual income of the said trust property however invested upon trust to pay to the said Herbert Tiffen Stephen M'Carthy or to any future husband of his said daughter Mabella Winton M'Carthy a yearly sum of five hundred pounds for his own absolute use and to pay the balance (after deducting the said sum of five hundred pounds) of the clear annual income unto his said daughter Mabella Winton M'Carthy or to permit her to reecive the same during her life for her separate use as there- inafter provided And from and after the decease of the said Mabella Winton M'Carthy upon trust to pay the income of the said moicty of the said trust property to her then surviving husband Gf any) for his life or until he should become insolvent or do or suffer anything or act whereby the same weuld become payable to or attachable by any other person And from and after the decease of his said daughter Mabella Winton M'Carthy and her surviving husband (if any) his said Trustees should stand possessed of the said moiety of the said trust property for the benefit of all or any one or more of the children or other issuc 50° VIC. 1886. Pringle's Estate Mortgaging. issue of his said daughter Mabella Winton M'Carthy by her then present or any future husband as she should by deed or will notwith- standing coverture appoint Porvided that if there should be children or a child by any future husband every such appointment should apportion the said moiet y of the said trust property between the several families so that each family should receive a proportionate part according to the number of such family but his said daughter should have power to app more of the members of oint such proportionate part to all or one or such family And in default of any such appointment and so far as no such appointment should extend his Trustees should stand possessed of the said moiety In trust for all such children or child if only one of his said daughters who being sons or a son should attain twenty-one years or being daughters or a daughter should attain that age or marry and if more than one in equal shares Provided always that no child taking any part of the said premises under any such appointment as aforesaid should in default of appointment to the contrary be entitled to any share of that part of the said premises of which no such appointment should be made without bringing his or her appointed share into hotchpot Provided always that the said Trustees may after the decease of the survivor of the said Mabella Winton M'Carthy and her then present or any future husband or in the lifetime of them or the survivor of them if they she or he should so direct raise any part or parts of the then expectant presumptive or vested share of fortune of any child under the trusts thereinbefore declared not exceeding in the whole for any such child one half part of his or her then expectant presumptive or vested share or fortune and apply the same for his or her advancement or benefit And it was thereby declared that the Trustees should after the decease of the said Mabella Winton M'Carthy and her surviving husband (if any) apply the whole or any part as the said Trustees should think fit of the annual income of t 1e share or fortune to. which any child should for the time being be entitled to in expectancy under the trusts there- inbefore declared for or towards the maintenance or education of such child either directly or without seeing to the app the same And also show accumulate the residue through his or her guardian or guardians ication thereof or requiring any account of d during such suspense of absolute vesting (if any) thereof in the way of compound interest by investing the same and resulting income thereof from time to time in or upon any su before mentioned for the the trusts thereinbefore principal fund from whie ch securities or investments as were therein- benefit of the person or persons who under contained should become entitled to the h the same respectively should have proceeded with power to the Trustees to resort to the accumulation of any preceding year or years and apply the same for or towards the main- tenance or education of t ne child or children who should for the time being be presumptively entitled to the same respectively And in the event of there being no children or child or issue capable of taking under such last-mentioned limitation then his said Trustees should hold the same moiety of said trust property however invested upon trust for the person or persons who would be entitled thereto if he had died intestate And as to the other moicty of the annual income of said trust property however invested upon trust to pay to the said William Anthony Kingscote or to any future husband of his said daughter Catherine Janctte Kingscote a yearly sum of five hundred pounds for his own absolute use and to pay the balance (after deducting the said sum of five hundred pounds) of the clear annual income unto his said daughter Catherine Janette Kingscote or permit her to receive the same during her life for her separate use as thereinafter provided And from and after the decease of the said Catherine Janette 1886. 50° VIC. Pringle's Estate Mortgaging. Janette Kingscote upon trust to pay the income of the said moiety of the said trust property to her then surviving husband (if any) for his life or until he should become insolvent or do or suffer anything or act whereby the same should become payable to or attachable by any other person And from and after the deecase of his said daughter Catherine Janctte Kingscote and her surviving husband (if any) his said 'Trustees should stand possessed of the said moiety of the said trust property for the benefit of all or any one or more of the children or other issuc of his said daughter Catherine Janette Kingscote by her present or any future husband (such other issue being born in her lifetime) as she should by deed or will notwithstanding coverture appoint Provided that if there should be children or a child by any future husband every such appointment should apportion the said moicty of the said trust property between the several families so that cnch 'family should receive a proportionate part according to the nunber of such family but his said daughter should have power to appoint such proportionate part to all or one or more of the members ot such family And in default of any such appointment and so far as no such appointment should extend his said Trustees should stand possessed of the said moicty in trust for all sueh children or child if only one of his said daughters who being sons or a son should attain tw enty-one years or "being daughters or a daughter should attain that age or marry and if more than one in equal shares Provided always that no child taking any part of the said premises under any such appointment as aforesaid should in default of appoint- ment to the contrary be entitled to any share of that part of the said premises of which no such appointment should be made without bring- ing his or her appointed share into hoteckpot Provided always that the said 'Trustees might after the decease of the survivor of them the said Catherine Janette Kingscote and ler present or any future Tasband or in the lifetime of them or the saevivor of them if they she vr he should so direct raise any part or parts of the then expectant 7 resttp tive or vested share or fortune of any child under the Trust thoreinbefore declared not execeding in the whole for ¢ any such child one-half part of his or her then expectant presumptive or voste «dl share or fortune and apply same for his or her advancement or benetit And it was thereby declared that the Trustees should after the decease of the said Catherine Janette Kingscote and her surviving husband (if any) apply the whole or any part as the Trustees should think 1it of the annual income of the share ov fortune to which any ehild should for the time being be entitlel to in expectancy under the trusts thereinbefore deelarcd for or towards the maintenanec or education of such child cither directly or through his or her gutar- dian or guardians without secing to the application. thercof or requiring any account of the same And also should during such suspense of absolute vesting accumulate the residue (if any) thercof » way of compound interest by investing the same and resulting income thereof from time to time in or upon any such securities or investment as were thercinbefore mentioned for the benefit of the yxerson or persons who under the trust thereinbefore contained should eeome entitled to the principal fund from which the same rights shot have proceeded with power to the Trustees to resort to the accumulation of any preceding year or years and apply the same for or towards the maintenance or education of the child or children who for the time being should be presumptively entitled to the same respectively md. in the event of there being no childven or child or issue capable of taking under such Tast-me sntioned limitations then his said 'Trustees should hold the said moicty of said trust property upon trust for the crson or persons who would be entitled thereto if he had died intestate 50° VIC. 1886. Pringle's Estate Mortgaging. intestate and the said testator thereby declared that the trust property devised and all income moneys payable under his will to cither of his said daughters should be for her sole and separate use indepen- dently of the control of her then present or any future husband so that her reccipt alone should be a valid discharge to his said Trustecs and so that she should not have power to anticipate the same And the said testator thereby declared that his said Trustees should have power during the continuance of the trusts of his will to determine from year to year at their sole discretion how much of the procecds of any property "bequeathed or devised in trust by his said will should be treated as clear annual income and how much should be retained or expended by them for the advantage of his estate or for contingencies of equalisation of income in future years and the said testator declared that it should be lawful for his Trustees to pay and discharge the debt and liabilities owing by him at his decease in such instalments and extending over two or more years as they might think expedient and to compound and allow time for the payment of any debt or debts duc to his estate and to settle all accounts due upon such terms as they might think proper And it being the desire of the said testator that the said William Frederick M*Carthy who was his attorney and solicitor should continue to act as such in all matters relating to his property and affairs and-should make the usual professional charge he expressly directed that he should notwithstanding his acceptance of the office of Trustee and executor of his said will and his acting in the exccution thereof be entitled to make the same professional charges and to receive the same pecuniary emoluments and remunera- tion for all business done by him and all attendances time and trouble given or bestowed by him in or about the execution of the trusts and powers of his said will or the management and administration of his trust estate real or personal as if he (not being himself a Trustee or executor of his will) were employed by the Trustee or executor or 'Trustecs or executors thereof as attorney and solicitor to such Trustee or executor Trustees or executors and should be entitled to retain out of his trust moneys or to be allowed and received from his co-truetecs (if any) out of the same moneys the full amount of such charges any rule of equity to the contrary notwithstanding Nevertheless without prejudice to the right or competency of the said William Frederick M'Carthy to exercise the authority control judgment and diserction of a Trustee of his said will Lastly the said testator by his said will revoked all former wills And 'whereas the said Robert Pringle dicd on the thirteenth day of February one thousand cight hundred and seventy-five without having altered or revoked his said will and leaving him surviving the said Mabella Winton M'Carthy the said ILerbert Tiffin Stephen M'Carthy the said Catherine Janette Kingscote and the said William Anthony Kingscote And whereas the said will was proved by the said John M'Donald the said David Williamson Irving and the said William Frederick M'Carthy on the tenth day of March one thousand eight hundred and seventy-five And whereas the said John M'Donald and the said David Williamson Irving are the surviving executors and Trustees of the said will And whereas the houses messuages lands hereditaments and real and personal estate by the said will respectively devised and bequeathed were at the time of the death of the said Robert Pringle and still are subject to certain charges and liabilities And whereas a sum of five thousand pounds was owed by the said Robert Pringle at the time of his death and the same is due and unpaid And whereas the said 'Trustees have ineurred certain debts in administering the said lands and hereditaments — And whereas the profits of the said houses messuages land and hereditaments and 1886. 50° VIC. Pringle's Estate Mortgaging. and real and personal estate are not sufficient to discharge the said charges and liabilities and the said debt And whereas there is ycason to believe that a sum sufficient to discharge the said liabilities charges and debts can now be borrowed upon the security of the said 'houses and messuages lands hereditaments and real and personal estates or part of them at a reasonable rate of interest And whereas doubts have arisen whether the said will contains any power to mortgage or pledge the whole or any and what part of the houses messuages lands hereditaments and real and personal estate thereby devised and bequeathed And whereas the said houses messuages lands hereditaments and real and personal estate are mentioned anc deseribed in the Schedule to this Act And whereas in consequence of the said doubts as to the meaning of the said will the said surviving Trustees are unable to borrow money upon the seeurity of the said houses messuages lands hereditaments and real and personal estate or any part thereof. And whereas it is expedient and would be for the benefit of all parties interested in the said houses messuages lands hereditaments and real and personal estate that power to mortgage and pledge the same or any part thereof should be conferred on the 'Trustees or Trustee for the time being of the said will of the said Rober Pringle deceased for the benefit of the persons interested under the said will and the moneys raised by mortgage or pledge of such of the said houses messuages lands hereditaments and real and personal estate as shall from time to time be mortgaged or pledged should be applied towards the discharge of the abov 'ementioned charges liabilities anc debts and towards the improvement of the said houses messuages lands ands and hereditaments for the henefit of the persons respectively entitled under the said will And whereas the authority of the Legis- ature is necessary in the premises Be it therefore enacted 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. It shall be lawful for the said John M'Donald and David Williamson Irving or other the Trustees or 'Trustec for the time being of the said will of the said Robert Pringle deceased hereinafter called he Trustees from time to time to borrow and raise at interest any sum or sums of moncy not exceeding in the whole the sum of thirty thousand pounds with power to pay off any mortgage or mortgages pledge or pledges and to reborrow any sum or sums thereby secured or any less sum or sums provided that not more than thirty thousand pounds shall at any one