Transcription of letter, Crease & Crease to FA Pauline, 16 July 1896

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Crease & Crease, Barristers-at-law, Solicitors & c.  Temple Building, Victoria BC, 16 July 1896

FA Pauline, Esq

Victoria, BC

Re Settlement Trust

Dear Sir/-

We have carefully perused the draft of a deed of appointment of a new trustee which you have handed to us.  From this document and the information you have given us we understand that by deed dated 12^th July 1859 made in contemplation of the marriage of your father and mother certain monies were settled in trust for your mother Mrs Pauline and her children by the marriage.  Louisa Cutler [Mrs Pauline’s mother], William Henry Cutler [brother] and William Churchill Longman [brother-in-law] were the original trustees.

By deed of the 4^th June 1880 Messrs Geo Bennett [F Paulin’s brother in law] and George Paulin [FP’s father] were appointed trustees with Mr WH Cutler vice Louise Cutler and WC Longman both deceased.

By deed of 20^th August 1881 Mr Joseph Walter Fry was appointed a new trustee in the place of Mr Bennett who retired from the trust. The trust property was then vested in Messrs Geo Paulin, WH Cutler and JW Fry.

On 15^th March 1894 Mr G Paulin died.  Mr Cutler had been found by inquisition to be of unsound mind.  The trust property is therefore now vested in Messrs WH Cutler and JW Fry.

We further understand that the beneficiaries consist of your mother Mrs Paulin and your brothers and sisters, all of whom are of age. One of your sisters, however, has died leaving two infant children.

That the trust property consists of a mortgage for L420

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From WH Cutler, Geo Bennett and G Paulin to WH Cutler, Geo Paulin, and Walter fry on house at Henley-on-Thames (b) Freehold lands at Acocks Green, Yardley, Worcester, known as “Henley Lodge” (c) L840 stock in Reading Corporation present value L1092.  We may here remark incidentally that we are at a loss to know how the above mortgage could be made between the parties there named.

We are not of course aware of the contents of the Settlement or of the various provisions therein.  We understand that it is desired that Mr Fry should be released from the trusts, and that the trust funds should be invested in this Province at better interest than received from present investments in England.  We conceive that the trustees have full power of varying investments and of investing in Colonial securities.

We would suggest as a course of effectuating the above desire that the Present Trustee might, if authorized by the trusts, sell or convert into money all the present investments.  His accounts could then be passed and approved.  New trustees residing in this province might then be appointed in pursuance of the powers contained in the Settlement, and Mr Fry be thereupon released under proper deed by the beneficiaries who are of age from further liabiliites.

We are assuming that the present investments can be realized without such a sacrifice as would amount to a breach of trust.

If realized and the proceeds may under the trusts be invested in this Province we see no objection to the new Trustees being resident

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Here.

We may remark it is always most undesirable that trust property should be vested in a sole trustee.

If a trustee wishes to be discharged from any liability he has or is about to incur in relation to the execution of his trusts he must obtain the consent of all the beneficiaries.  He cannot do this if any of the beneficiaries are infants, because infants have no legal capacity to consent; moreover if the parties interested in the trust are not all in existence, as where a benefit is conferred for children unborn, the trustee obviously cannot obtain the sanction of all parties interested, and cannot therefore with safety be discharged from the trust. Such cases are however sometimes met by the beneficiaries of age entering into a covenant or bond that the minors will consent when they obtain full age.

With regard to the enclosed form of appointment we note that it contains no provision for the transfer of the trust property which is now vested in Messrs Cutler and Fry to the new trustee, with the exception of the mortgage which is to be tranfered by a separate deed.

The transfer of the interest vested in Mr Cutler or his committee (or guardian) is a point which we have no doubt has been considered by the solicitor in charge of the matter. Our law here varies from the English since the introduction of their Conveyancing Acts.

The variation in the name Paulin and Pauline is immaterial except in so far as it raises a question of identity and we think it would be

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Advisable for the name to be mentioned as “Paulin” (otherwise Pauline) or as “Paulin” (now commonly known as Pauline).

We return the draft appointment of new trustee herewith.

Yours faithfully,

Crease and Crease.