Sect. 3. such conveyance, assignment, or other assurance, or subject to any trust for the congregation or society or body of persons, or of the individuals composing the same, such conveyance, assignment, or other assurance shall not only vest the freehold, leasehold, copyhold, or customary property thereby conveyed or otherwise assured in the party or parties named therein, but shall also effectually vest such freehold, leasehold, copyhold, or customary property in their successors in office for the time being, and the old continuing trustees, if any, jointly, or if there be no old continuing trustees, then in such successors for the time being wholly, chosen and appointed in the manner provided or referred to in or by such conveyance, assignment, or other assurance, or in any separate deed or instrument declaring the trust thereof, or if no mode of appointment be therein set forth, prescribed, or referred to, or if the power of appointment be lapsed, then in such manner as shall be agreed upon by such congregation or society or body of persons, upon such and the like trusts, and with, under, and subject to the same powers and provisions, as are contained or referred to in such conveyance, assignment, or other assurance, or in any such separate deed or instrument, or upon which such property is held, and that without any transfer, assignment, conveyance, or other assurance whatsoever, anything in such conveyance, assignment, or other assurance, or in any such separate deed or instrument, contained to the contrary notwithstanding: Provided always, that in case of any appointment of a new trustee or trustees of or the conveyance of the legal estate in any such property being made as heretofore was by law required, the same shall be as valid and effectual to all intents and purposes, as if the Act had not been passed" (s). "That for the purpose of preserving evidence of every such choice and appointment of a new trustee or new trustees, and of the person and persons in whom such charitable estates and property shall so from time to time become legally vested, every such choice and appointment of a new trustee or new trustees shall be made to appear by some deed under the hand and seal of the chairman for the time being of the meeting at which such choice and appointment shall be made, and shall be executed in the presence of such meeting, and attested by two or more credible witnesses, which deed may be in the form or to the like effect of the schedule to this Act annexed, or as near thereto as circumstances will allow, and may be given and shall be received as evidence in (s) Sect. 1. all courts and proceedings, in the same manner and on the like proof as deeds under seal, and shall be evidence of the truth of the several matters and things therein contained" (t). This Act was intended to apply to property held upon charitable Applies to uses (u). property held on charitable Whether It seems open to doubt whether trustees appointed under this uses. Act do not take merely the legal estate, and whether, therefore (in trustees apthe absence of provision in the instrument of foundation), they can pointed under exercise the powers possessed by the old trustees (x). than legal Act take more chapel. It was in one case considered doubtful whether new trustees estate. of a chapel vested in trustees on trusts in accordance with the When Act appliesWesleyan constitution could be appointed under Peto's Act (). Wesleyan The reason given was that the effect of the Wesleyan model deed, upon the trusts of which the chapel in question seems to have been held, was to vest the chapel in trustees, not for a particular congregation, but for the whole Wesleyan connexion, and that an appointment by that body was impracticable (≈). Wood, V.-C., in giving judgment («), said that although much was to be said in favour of the Act applying to that society, inasmuch as the constitution of Methodism recognized the existence of such societies as members of a larger body, still that his own impression was that the Act did not apply either to the Methodist body generally or to the particular congregation; that in order to bring a society within the Act it was requisite that there should have been property acquired by the congregation or society and held upon trust for them. chapel. In the case, however, of an Independent chapel it was treated as Independent clear that new trustees could be appointed under this Act at a meeting of the body called "church members," in whom the appointment of new trustees was vested (b). By 32 & 33 Vict. c. 26, the provisions of Peto's Act were Peto's Act extended to burial grounds. extended to burial The Act, after reciting Peto's Act, provides as follows: "Wher- grounds. ever freehold, leasehold, copyhold, or customary property in England or Wales has been or hereafter shall be acquired by any congregation or society or body of persons associated for religious. purposes as a burial ground, whether in use or closed, all the provisions in the said recited Act made applicable to a chapel, meeting house, or other place of religious worship shall be applicable to such burial ground, and this Act and the said recited Act shall be Conveyancing Devolution of construed as one Act: Provided always, that nothing herein contained shall in any way interfere with the Burial Acts." The provisions of the Conveyancing and Law of Property Act, 1881 (c), as to the appointment of new trustees and the vesting of trust property, apply in the case of charities (d). Where the power of appointing new trustees contained in the instrument of foundation (e) did not contemplate the case of a trustee being absent from the United Kingdom for more than twelve months, it was held not to show a contrary intention, within sub-s. (7) of sect. 31 of the Conveyancing and Law of Property Act, 1881, so as to exclude the exercise of the power given by that Act to appoint a new trustee in the place of one who has been out of the United Kingdom for more than twelve months (f). It seems that the retiring trustee need not join in the appointment (g). The power of an old vestry to appoint new trustees devolves on power of ap- the vestry constituted by the Metropolis Local Management Act, pointment vested in vestry. Municipal corporation. Transfer to 1855 (h). So, also, any powers in relation to charities possessed by a municipal corporation to which the Municipal Corporations Act, 1835, applied, passed, so far as they were not abolished, to the corporation as reformed by that Act (i). By sect. 64 of the Local Government Act, 1888 (k), it is provided that "all property of the quarter sessions of a county, or held by the clerk of the peace, or any justice or justices of a county, or treasurer, or commissioners, or otherwise for any public uses and purposes of a county, or any division thereof, shall pass to and vest in and be held in trust for the council of the county, subject to all debts and liabilities affecting it, and shall be held by the county council for the same estate, interest, and purposes, and subject to the same covenants, conditions, and restrictions, for and subject to which that property is or would have been held if this Act had not passed, so far as those purposes are not modified by this Act: Provided that 66 "(b) Where any property belongs to a charity, nothing in this Act shall affect the trust of such charity, and until otherwise directed by the Charity Commissioners for England and Wales, the trustees (c) 44 & 45 Vict. c. 41, ss. 31-34. (e) The Wesleyan Model Deed. See ante, (f) Re Coates to Parsons, supra. (h) Re Hayle's Estate, 31 Beav. 139. See, however, Att.-Gen. v. Drapers' Co., 4 Dr. 299. (i) Att.-Gen. v. Phillimore, 9 L. J. Ch 338. (k) 51 & 52 Vict. c. 41. or managers of the charity shall be appointed in like manner as if this Act had not passed." It would appear that charities applicable "for any public uses and purposes of a county" of which the estates are not vested in any of the persons mentioned in the above section, although they may be managed by such persons, remain unaffected by the Act. But if the charity estates are vested in any of the above persons, it seems that the effect of the section is to transfer the estates to the county council, leaving the management of the charity in the hands of the persons in whom it would have been if the Act had not passed. A question seems likely to arise on this section, whenever it becomes necessary to determine precisely what is included in the words "any public uses and purposes of a county or any division thereof." Appointment and Removal by Court. by Court. In cases where no other means by which trustees can be appointed Appointment are available, recourse must be had to the Court or the Charity Commissioners. The Court of Chancery always had jurisdiction upon infor- Action. mation to appoint new trustees of charities (/), and also to remove existing trustees (m). This jurisdiction is now exercised by the Chancery Division, and procedure by action is substituted for procedure by information (»). By Romilly's Act (o) power was conferred upon the Court to Romilly'sAct. appoint new trustees of charities upon petition (p). But there is no power under that Act to add to the number of trustees limited by the foundation (q). c. 57. In order to prevent the expense occasioned, when all the trustees 2 & 3 Will. IV. of a charity were dead, in making out the title of the representative of the last surviving trustee, it is provided by 2 & 3 Will. IV. c. 57, s. 3 (r), that where all the trustees of any estate for any charity or charitable or public purpose are dead, the Court (") may, on c. 60, which was repealed by sect. 1 of () In the Act the Court of Chancery, Trustee Act, 1850. Appointment of trustees in place of judges of County Palatine of Chester and Princi pality of Wales. Chambers. R. S. C. 1883, petition in a summary way, require by advertisement the representative of the last surviving trustee to appear or give notice of his title within twenty-eight days, and prove his pedigree or other title as trustee, and in default the Court is authorized to appoint new trustees, and to order a conveyance to be made to them of the trust property (x). There is also jurisdiction under the Trustee Act, 1850 (y), to make orders appointing new trustees either in substitution for or in addition to any existing trustee or trustees. But the Court cannot under this Act remove a trustee who is willing to act (≈). Under sect. 45 of the same Act the Court is enabled to vest, without conveyance, any lands, stock, or chose in action, in the trustee or trustees of any charity or society over which the Court would have jurisdiction upon suit duly instituted, whether such trustee or trustees shall have been duly appointed under any power contained in any deed or instrument, or by decree of the Court, or by order made upon petition to the Court under any statute authorizing the Court to make an order to that effect in a summary way upon petition (a). By 11 Geo. IV. & 1 Will. IV. c. 70, by which the jurisdiction of the County Palatine of Chester and Principality of Wales was abolished, the Lord Chancellor was empowered to appoint new trustees of any charitable or public trust cast by virtue of their offices upon the judges of the Courts abolished by the Act (b). Where the gross annual income of the charity exceeds 30%., orders for the appointment and removal of trustees may be made at chambers in all cases in which they might formerly have been made by the Court of Chancery or by the Lord Chancellor, intrusted with the care and commitment of the custody of lunatics in a suit regularly instituted or upon petition (c). And now, by R. S. C. 1883, Ord. LV. r. 13a, it is provided that in all cases where the Court has jurisdiction to appoint new trustees on petition, they may be appointed upon summons at chambers. (x) For form of order, see Re Nightingale's Charity, 3 Hare, at p. 338; Re Belke's Charity, 13 Jur. 317. (y) 13 & 14 Vict. c. 60, s. 32. (2) Lewin on Trusts, 8th ed. p. 853, n. (a) In Re Basingstoke School, Set. 4th ed., p. 565, a person was appointed to convey an outstanding legal estate under a scheme approved by the Court. Another unreported case, Re Norton Folgate, is also cited in Set. 4th ed., p. 565, where the jurisdiction under this section was exercised. (b) Sect. 31. See Re Robinson's Charity, 3 De G. M. & G. 188, where it was held that the jurisdiction might be exercised by a vice-chancellor. (c) Charit. Trusts Act, 1853, s. 28, and notes thereto, post. See Re Davenport's Charity, 4 De G. M. & G. 839. As to procedure, see post, pp. 337 et seq. |