trustees. the authority of Parliament or a Court or judge of competent juris- Restriction diction, or according to a scheme legally established, or with the on leases by approval of the Charity Commissioners, to grant a lease of the charity estates in reversion after more than three years of an existing term, or for any term of life, or in consideration wholly or in part of a fine, or for any term exceeding twenty-one years (x). to Act. A lease coming within this section may be granted without the Contract prior consent of the Commissioners, if made in pursuance of a valid contract in existence before the Act came into operation, and the Commissioners would in such a case have no power to refuse their sanction (y). may sanction The Board of Charity Commissioners are empowered, in cases Charity Comwhere they consider it beneficial to the charity, to authorize the missioners letting of charity lands on building, repairing, improving, or other building leases, workleases, or on mining leases, or the digging of stone, clay, gravel, or ing mines, other minerals, or the cutting of timber, or the formation of new repairs, improvements, roads or streets, the making of drains or sewers, the erection of &c. buildings, or the repair, alteration, rebuilding, or removal of existing buildings, or any other improvements or alterations in the state or condition of the lands or estates of the charity (~). funds. The Board may also authorize the application of the charity funds Provision of for any of the purposes or acts aforesaid, and, if necessary, may authorize the trustees to raise the required sums by mortgage (a). They may also authorize the application of funds belonging to Application the charity or raised on the security of the properties thereof to of funds for any other purpose or object which they may consider beneficial to purpose. the charity or the estate or objects thereof, and which is not inconsistent with the trust or intentions of the foundation (b). any beneficial As a rule, the Charity Commissioners require any expenditure Expenditure out of capital for repairs, improvements, or other purposes, to be recouped out recouped out of income (c). thereto, post; and see Royal Society of London and Thompson, 17 Ch. D. 407; Finnis and Young to Forbes and Pochin (No. 1), 24 Ch. D. at p. 591. (x) Charit. Trusts Amend. Act, 1855, s. 29, and note thereto, post. (y) Moore v. Clench, 1 Ch. D. 447. In that case, however, the lease was held bad under the disabling Acts, 13 Eliz. c. 10 ; 14 Eliz. c. 11; and 18 Eliz. c. 11, ante, pp. 262, 263. (z) Charit. Trusts Act, 1853, s. 21, post. (a) Ibid. With regard to mortgages, see post, p. 271. (6) Charit. Trusts Act, 1860, s. 15, post. (c) See n. (c) to sect. 21 of the Charit. Trusts Act, 1853, post. This has also been the rule of the Court: Re Willenhall Chapel Estates, 2 Dr. & Sm. 467, 469. Thus, where capital has been erroneously applied in paying expenses of management, the Court will if possible direct it to be recouped out of future income: Andrews v. M'Guffog, 11 App. Cas. 313, 329. The rule may, however, in a proper case be departed from. In Re Willenhall Chapel Estates, supra, the sole object of the charity (subject to small charges for repairs, &c.) was the benefit of the incumbent, and the Court, under the special circumstances of the case, and upon petition of the incumbent and the of income. Reason of rule. Mode of recouping. Schemes for letting. Validity of leases authorized by Board. Leases by trustees where land vested in Official Power of majority of trustees. Ecclesiastical hospitals. The principle upon which this is done is that the founder of the charity intended "to establish a permanent endowment, and did not intend that the capital should be exhausted during the early years of the institution and the school afterwards left unendowed" (d). And with regard to the mode in which the capital should be recouped, Lord Herschell said, " to do it hastily would perhaps cripple the charity; it may be that it can only be done very slowly; but this will be done, having regard to the fees charged, the object of the bequest, and all the other circumstances of the case. Taking all these matters into consideration, I think that the object of the testator to create a permanent fund, the income of which alone was to be applied to the support of the school, should be distictly kept in view" (e). The Charity Commissioners are also empowered to prepare and under their seal to approve of any scheme for letting charity property; and leases granted by the trustees of, or persons administering the charity pursuant to, or in conformity with, such scheme are valid (f). Leases authorized by the Commissioners are as valid as if they had been directed by the express terms of the trust (g), and are valid and effectual, notwithstanding disabling Acts (h). Where the charity lands are vested in the Official Trustee of Charity Lands, the charity trustees have the same power to grant leases as they would have had if the estate had remained vested in themselves (i). Where charity trustees have power to determine on any lease or other disposition of charity property, a majority of the trustees may execute and do all such assurances, acts, and things as may be necessary; and such assurances, acts, and things have the same effect as if they had been executed and done by all such trustees and by the Official Trustee of Charity Lands (k). Ecclesiastical hospitals are excepted from the powers of leasing, sale, and exchange given to ecclesiastical corporations by 5 & 6 Vict. c. 108 and 21 & 22 Vict. c. 57 (1). trustees, ordered 1,000l. to be applied (d) Per Lord Herschell in Andrews v. (f) Charit. Trusts Act, 1855, s. 39, post. (g) Charit. Trusts Act, 1853, s. 26, post. (h) Charit. Trusts Amend. Act, 1855, s. 38, post. As to the disabling Acts, see ante, pp. 262, 263. See also Parish of Sutton to Church, 26 Ch. D. at p. 177. (i) Charit. Trusts Amend. Act, 1855, s. 16, post. (k) Charit. Trusts Act, 1869, s. 12, post. (4) 5 & 6 Vict. c. 108, s. 1. Exchanges. The Court may, in cases where it is beneficial to the charity, Court may order an exchange of charity lands (m). authorize exchange. It appears, however, that formerly it was not unusual to obtain Private Act. a private Act of Parliament for the purpose ("). A power to exchange does not authorize a demise in consideration Power to of another demise (o). exchange does not authorize demise in consideration of demise. The disabling statutes apply to exchanges of lands by the eleemosynary corporations therein mentioned, but by statute 14 Eliz. c. 11, s. 7, houses, with some exceptions, are allowed to be Disabling exchanged for lands" of as good value and of as great yearly value at the least" (p). Acts. Lands The statute 4 & 5 Will. IV. c. 30, for facilitating the exchange 4 & 5 Will. 4, of lands lying in common fields, extends to trustees for charitable c. 30. uses and to corporations, whether aggregate or sole, and whether in common civil, eleemosynary, or ecclesiastical (2). fields. may authorize Under the Charitable Trusts Act, 1853 (), the Board of Charity Charity ComCommissioners may authorize an exchange of charity lands where missioners they are satisfied that it will be for the benefit of the charity. And exchanges. they may give such directions in relation thereto and for the investment of money paid for equality of exchange as they think fit. Exchanges and other transactions authorized by the Commis- Valid notsioners are as valid as if they had been expressly authorized by the withstanding disabling trusts of the charity (s), and notwithstanding the disabling Acts (†). Acts. The Commissioners may also authorize the application of the Equality of charity funds in payments for equality of exchange (u), and provi- exchange. Expenses. sion is made for the payment of expenses incident to exchanges (x). And where trustees have power to determine on any exchange Majority of of charity lands a majority of the trustees may act and execute trustees may (m) Mildmay v. Lord Methuen, cited 14 Beav. 121, n., per Lord Cranworth. See Re Alderman Newton's Charity, 12 Jur. 1011. (n) See Att.-Gen. v. Buller, Jac. at p. 412. (0) President, &c. of Magdalen Hospital v. Knotts, 26 W. R. 141. (p) See ante, p. 263. (7) By 1 & 2 Geo. IV. c. 92 (repealed by the Stat. Law Rev. Act, 1873), power was given to exchange lands, tenements, or hereditaments vested either in individual trustees or any body politic or corporate for any charitable purpose, for other lands, tenements, or hereditaments through the instrumentality of a commission issued by the bishop of the diocese where the charity property was situate. And it was held (r) Sect. 24, post. And as to the (t) Charit. Trusts Amend. Act, 1855, (u) Charit. Trusts Amend. Act, 1855, s. 32, post. (x) Ibid.; and see sect. 34 of the same Act. act. Exchanges usually effected by Land Commissioners. Powers of Land Commissioners. Order for exchange. deeds on behalf of the whole body and of the Official Trustee of Charity Lands (y). The Land Commissioners are by their Acts enabled to effect exchanges in a simpler and cheaper manner than the Charity Commissioners. Sect. 24 of the Charitable Trusts Act, 1853, merely empowers the Charity Commissioners to authorize exchanges. The orders of the Land Commissioners on the other hand carry the exchanges into effect. Moreover, an exchange effected by the Land Commissioners shifts the title of the land given to the land received, and no defect in the title of the persons from whom it is received can affect the persons to whom it is given. No investigation of title is therefore required beyond ascertaining that the party exchanging is interested in the land within the meaning of the Acts. Consequently, it is usually advisable, where an exchange is required, to have resort to the Land Commissioners. The Charity Commissioners themselves commonly recommend this course. The sanction of the Charity Commissioners is not required to an application to the Land Commissioners, and the powers of the latter body are exercised independently of and without communication with the former. The powers of the Land Commissioners are derived from the Acts for the inclosure, exchange, and improvement of lands (≈). They extend to corporeal and incorporeal hereditaments of any tenure, and whether vested in corporations sole or aggregate, or held upon charitable trusts, or belonging to private individuals. Under these Acts the Commissioners are empowered, upon the application in writing of the persons interested (a) in lands (including incorporeal as well as corporeal hereditaments (b) and copyholds (c)) not subject to be inclosed under the Act, or in lands subject to be inclosed, but as to which no inclosure proceedings are pending, to direct inquiries whether a proposed exchange is beneficial; and if the Commissioners are of opinion that it is beneficial, and that the terms are just and reasonable, they shall, unless notice (3) Charit. Trusts Act, 1869, s. 12, post. (~) 8 & 9 Vict. c. 118; 9 & 10 Vict. c. 70; 10 & 11 Vict. c. 111; 12 & 13 Vict. c. 83; 14 & 15 Vict. c. 53; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31; 22 & 23 Vict. c. 43; 31 & 32 Vict. c. 89; 39 & 40 Vict. c. 56. The powers of the Commissioners under these Acts were transferred to the Land Commissioners by sect. 48 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38). (a) Defined by 8 & 9 Vict, c. 118, sects. 16-19. They are the persons in actual possession or enjoyment of the land or any part thereof, or any common or common right thercon, or any manor of which such land or any part thereof shall be waste, or the persons in actual receipt of the rents of such land, without regard to the real amount of their interest (except certain lessees and tenants). Sce also 17 & 18 Vict. c. 97, ss. 2, 4, 5. (b) 17 & 18 Vict. c. 97, s. 3. of dissent (d) is given, make an order of exchange with a map or plan annexed, showing the lands given and taken in exchange. A copy of the order is delivered to each of the parties on whose application the exchange was made. The order of exchange is valid and effectual to all intents and purposes whatsoever, and not liable to be impeached by reason of any infirmity of estate or defect of title of the persons on whose application the same was made; and the land taken upon every such exchange is held to, for, and upon the same uses, trusts, intents, and purposes, and subject to the same conditions, charges, and incumbrances as the lands given on such exchange would have stood limited or been subject to in case such order had not been made. The expenses of the order, or of inquiries in relation thereto, are borne by the persons on whose application the order was made or inquiries undertaken (e). The Commissioners may also divide and allot lands which have Intermixed become intermixed or are divided into inconvenient parcels (ƒ). lands. inconvenient And they may, upon the application in writing of the church- Exchange of wardens and overseers, or the allotment trustees and the persons allotments. interested in the land to be given in exchange, exchange inconvenient allotments for the poor inhabitants of a parish, or any class of them, or for other purposes of exercise and recreation, or any other public or parochial purpose, for land more convenient (g). The power of exchange extends to rights of common, rights of Rights of fishing, manorial and other rights, easements, quit rents, chief rents, heriots, tithes, and rent charges (). common, easements, rents, &c. in value. Inequality in value, where the deficiency does not exceed one- Inequality eighth, may be compensated by a rent charge (i); but there is no provision as to payment of money for equality of exchange. ments. By the Commons Act, 1876 (k), the Charity Commissioners are Commons empowered, on the application of the trustees of a fuel allotment, to Exchange of authorize the exchange of any fuel allotment, or any part thereof, fuel allotfor land of equal value situate within the parish or district, for the benefit of the poor of which the allotment was set out, if the Commissioners are of opinion that by means of such exchange land better suited for the purpose for which the allotment was set out will be obtained. Under the Ecclesiastical Leasing Act, 1858 (7), lands, houses, Property of Ecclesiastical mines, minerals, or other property belonging to an ecclesiastical Corporation. (d) See 8 & 9 Vict. c. 118, s. 150. (e) 8 & 9 Vict. c. 118, s. 147. As to the reservation of mines, minerals, and easements, see 10 & 11 Vict. c. 111, s. 4. (f) 8 & 9 Vict. c. 118, s. 148. (g) Sect. 149. (h) 12 & 13 Vict. c. 83, s. 7. |