Imatges de pàgina
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Exemptions.

Incorporation of charity trustees.

Directions of

instrument of

foundation

must be

observed.

Selection by
Court.

such trust or power, was within his diocese, and by reason of an alteration of the limits of the diocese such place is transferred to some other diocese, to make an order substituting for the firstmentioned bishop the bishop of the diocese in which such place is included. The order vests in such lastly-mentioned bishop all estate, property, rights, patronage, and authority in relation to the charity or trust.

The Act does not affect trusts of a visitatorial or other nature exercised in or over any college, hall, or school within the precincts or under the jurisdiction or government of either of the Universities of Oxford or Cambridge, or the colleges of Eton, Winchester, and Westminster (k), or to endowments of an eleemosynary or other character, whose foundation trusts are governed by a specific Act of Parliament (1).

By the Charitable Trustees Incorporation Act, 1872 (m), the Charity Commissioners may, upon the application of the trustees of any charity for religious, educational, literary, scientific, or public charitable purposes, grant a certificate of registration of the trustees as a corporate body, subject to such conditions or directions as they think fit as to the qualification and number of the trustees, the tenure or avoidance of office, and the mode of appointing new trustees, and the custody and use of the common seal ("). The certificate vests in the corporation all real and personal estate held in trust for the charity, except stocks, funds, and securities vested in the Official Trustees of Charitable Funds (o). After the incorporation vacancies in the number of the trustees are filled up in the same manner (p), and the trustees are under the same responsibility (9), as if no incorporation had taken place.

Selection of Trustees.

Where the instrument regulating the charity contains directions as to the appointment of new trustees those directions must, in the case of an appointment under the power in the instrument, be observed ().

The Court in selecting trustees inquires whether the parties proposed are proper persons, not whether they are the most proper that could be found (s).

(k) Sect. 4.

(1) Sect. 5.

(m) 35 & 36 Vict. c. 24, post.
(n) Sect. 1.

(0) Sect. 2.

(p) Sect. 4.

(2) Sect. 5.

(r) Cf. Att.-Gen. v. Pearson, 3 Mer. at pp. 402, 403, and post, p. 213.

(s) Re Lancaster Charities, 7 Jur. N. S.

Sometimes trustees are by the instrument of foundation required Residential to possess a certain qualification, as, for instance, to be inhabitants qualification. of a particular place. In such a case, if eligible persons satisfying

the condition can be found, it is improper to appoint persons who do not satisfy it (u). But in a proper case the area from which new trustees are to be chosen may be enlarged (x).

Where residence within a parish is a necessary qualification, Subsequent subsequent removal of the trustees to such a distance as to make it removal. impossible for them to attend to their duties will vacate the

office (y).

But as a rule residence at a short distance from the town where Residence at the charitable institution is situated is not a valid objection to pro- not usually short distance posed new trustees (z). objection. Jessel, M. R., said, "The usual course in modern times in the Management Court of Chancery, or the Chancery Division, is to put the manage- estates usually of charity ment of charity estates into a body of trustees who are gentlemen intrusted to from the neighbourhood. That is the usual course, and it has body of trusbeen considered and found in practice to be the best course, and bourhood. the best way of managing the estates" (a).

In one case the radius from within which trustees of a local hospital were to be selected was fixed at six miles (b).

tees in neigh

Relationship among proposed new trustees is not a valid Relationship. objection to them (c). And a temporary absence from the United Absence. Kingdom is not sufficient to vacate the office (d).

Where a scheme provided that no person should act as trustee Occupation of of a charity who should occupy any part of the charity property, charity land. it was held that a trustee who was the lessee of a small piece of

charity land must either give up the lease or the trusteeship (e).

In Re Burnham National Schools (ƒ), it was considered to be Partisan not improper that two of three new trustees should be partisans of trustees. parties holding opposing views and the third an indifferent

person.

Where trustees were being appointed in place of a municipal Suspicion corporation, the mere existence of a suspicion that the old trustees against

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trustees.

Religious qualification.

Church of England school.

Charities of other denominations.

Repair of church.

had exercised their trust for political purposes, was held a sufficient ground for not re-appointing any of them (g).

In the case of a school founded in connection with the Church of England it is improper to appoint as trustees or governors persons not members of the Church of England (h).

But if the trustees appointed are members of the Church of England it is no objection to their appointment that they may afterwards, under the Elementary Education Act, 1870 (), transfer the school to a school board (k).

"Whenever the Court of Chancery is called on to appoint trustees of a charity, its duty obviously is to select those who are likely best to discharge the duties imposed on them by the trust; and where the trust is confined to the duty of selecting proper persons to teach or expound the doctrines of the Church of England, or to instruct children in any branches of learning of which the tenets and doctrine of the Church of England are necessarily to form part, and to apply funds for the promotion of that object, it can hardly be doubted that, in the exercise of a sound discretion, the Court will take care that none but members of the Church of England shall be appointed trustees. They will, primâ facie, be the persons best qualified to judge of the fitness of those who are to be called on to give the necessary instruction" (1).

Similarly, trustees or governors of charities for the inculcation of the religious tenets of other denominations, or the benefits of which are intended to be confined to persons holding particular religious views, should be persons professing the particular doctrines required (m).

And so far as may be necessary for appointing new trustees, the Court looks at the usage, for the purpose of determining for what religious denomination the charity was founded (n).

In Re Donington Church Estate (0), it was held that the proper persons to be appointed trustees of a charity for the repair of the fabric of the parish church were the rector and churchwardens; and an order of the County Court, by which the overseers of the poor,

(g) Re Norwich Charities, 2 My. & C. 275.

(h) Baker v. Lee, 8 H. L. C. 495; Re Stafford Charities, 25 Beav. 28; Att.Gen. v. Clifton, 32 Beav. 596; and see Re Burnham National Schools, L. R. 17 Eq. 241, 247. To a great extent these cases are superseded by the End. Schools Acts, post. See also Re Hodgson School, 3 App. Cas. at p. 866.

(i) 33 & 34 Vict. c. 75.

(k) Re Burnham National Schools, supra. See also National Society v. School

Board of London, L. R. 18 Eq. 608.

(1) Per Lord Cranworth in Baker v. Lee, 8 H. L. C. at p. 513.

(m) Re Drogheda Charity Estates, 3 J. & Lat. 422; Att.-Gen. v. Bishop of Limerick, 5 Ir. R. Eq. 403, with regard to overseers of a charity; Att.-Gen. v. Pearson, 3 Mer. 353; Shore v. Wilson, 9 Cl. & F. 355; Att.-Gen. v. St. John's Hospital, Bath, 2 Ch. D. at pp. 565, 566. (n) Ibid. See also ante, p. 119. (o) 6 Jur. N. S. 290; Re Scarborough Charity, 1 Jur. 36.

the surveyor of highways, and a certain landowner were appointed trustees jointly with the rector and churchwardens, was reversed. So, also, in all cases where the charity is for church purposes (p). But if the primary object of the charity is eleemosynary, no Eleemosynary religious qualification is required in the trustees (q).

charity.

Trusts Act,

By sect. 46 of the Charitable Trusts Act, 1853 (r), it is provided Charit. that nothing in that Act shall detract from any privilege subsisting 1853. by any rule or practice of the Court, or by construction of law, for the preference or exclusive or special benefit of the Church of England or the members thereof in the appointment or removal of trustees.

Reason for ing trustee not appoint

not sufficient

That which would be a sufficient ground for not appointing a trustee is not necessarily a ground for removing him after he has been appointed (s). Trustees are not removed merely because there was an irregu- removing him. larity in their appointment; still less if for many years the validity Not removed of the appointment has never been questioned (t).

ground for

because irregularly

In a suit for the establishment of a scheme the Court declined appointed. to enter into the question of the validity of the appointment of or officers not Existing to remove existing officers of the charity, there being no imputation removed. against them personally (u).

residential

Again, where the statutes of a grammar school provided that the Custom not trustees should possess a certain residential qualification, and for to require upwards of a century that provision had been neglected, the Court qualification. refused to remove trustees against whom no other complaint was made, except that they did not possess the qualification (v).

So, although the trustees of a Church of England school ought Religious to be members of the Church of England (2), it does not follow qualification. that where persons have been elected not possessing that qualifica

tion they will be removed (y).

In Att.-Gen. v. Clifton (2), Romilly, M. R., refused to remove a trustee of a Church of England school who was a Dissenter.

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by the scheme: Re Browne's Hospital,
Stamford, 60 L. T. N. S. 288; see also
post, p. 221.

(v) Att.-Gen. v. Earl of Stamford, 1
Ph. at pp. 747, 748. See Att.-Gen. v.
Clarendon, 17 Ves. 491; Att.-Gen. v.
Clifton, 32 Beav. at p. 601; and cf. Att.-
Gen. v. Hartley, 2 J. & W. 353; Re
Storie's University Gift, 2 De G. F. & J.
529; and post, p. 314.

(x) Supra.

(y) See Baker v. Lee, 8 H. L. C. at p. 513, per Lord Cranworth.

(2) 32 Beav. at p. 601. See also Att.Gen. v. Bishop of Limerick, 5 Ir. R. Eq. 403, where an overseer of a charity was

Dissenting chapel.

Charit. Trusts
Act, 1860.

Trustees out

with congre

gation.

Similarly, in the case of a Dissenting meeting-house, a trustee will not be removed merely because he has joined another congregation (a).

The Charitable Trusts Act, 1860 (6), provides that the Charity Commissioners shall not make an order removing a trustee on the ground only of his religious belief.

In Att.-Gen. v. Hardy (c), Lord Cranworth seemed to think that of sympathy trustees of a Dissenting chapel might be removed, because, although they had not misconducted themselves, they had shown themselves to be out of sympathy with the body for whom they were trustees. In a subsequent case, however, his Lordship withdrew that opinion (d).

Provision for future observance of founder's directions.

Breach of trust.

Costs.

Express provision for

The case is different where the Court is called upon to prescribe the course to be adopted for the future. It will then give directions for securing the proper observance of the provisions of the instrument of foundation, notwithstanding long usage to the contrary (e).

Where the instrument of foundation of a charity founded in 1695 provided that the trustees should be the lord provost and town council of Edinburgh, and the ministers of the burgh present and to come, and ever since 1700 the lord provost and town council had alone had control of the charity funds, it was held that, notwithstanding the length of time during which a contrary practice had prevailed, the ministers must be joined as joint administrators of the charity (ƒ).

It need scarcely be said that these rules do not apply where the trustees have committed breaches of trust; as where the trustees of a Dissenting meeting-house not only entertain religious opinions differing from those which they ought to entertain, but have converted the chapel to the use of a sect for which it was not intended (g). In all cases trustees committing a wilful breach of trust are properly removed.

Where such trustees have, by refusing to retire voluntarily, rendered an action for their removal necessary, they will be fixed with the costs (h).

Where by the express stipulation of the deed of trust of a chapel

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