Courts, &c. Sect. 45. District Courts of Bankruptcy and (a) County Courts regulating under this Act, and for fixing and determining the fees proceedings before County to be taken in respect of such proceedings, as he may see fit; and, subject to such orders, such judges may regulate the proceedings before them respectively so as to render them as summary and inexpensive as conveniently may be. Saving of sub sisting rights of England and members thereof with respect to charities (a). (a) The words in italics were repealed by the Stat. Law Rev. Act, 1875, District Courts of Bankruptcy having been abolished by the Bankruptcy Act, 1869. The orders now in force are the County Court Rules, 1889, of which Ord. XLVIII. relates to charities. 46. Nothing herein contained shall diminish or detract of the Church from any right or privilege which by any rule or practice of the Court of Chancery, or by the construction of law, now subsists for the preference or the exclusive or special benefit of the Church of England, or the members of the same church, in settling any scheme for the regulation of any charity, or in the appointment or removal of trustees, or generally in the application or management of any charity. Secretary of of public such treasurer to be a corporation. (a) See generally, as to religious charities, ante, pp. 117 et seq. And as to the regard paid to religious belief in the appointment of trustees, see ante, pp. 192, 193, Cf. also, sect. 4 of the Charit. Trusts Act, 1860, post. This section would prevent persons not members of the Church of England from being appointed trustees of a Church of England school: Re Burnham National Schools, L. R. 17 Eq. at p. 247. 47. The secretary for the time being of the said the treasurer Board shall by virtue of his appointment be the treacharities; and surer of public charities (a); and such treasurer shall, for the purposes of taking, holding, conveying, assigning, transferring, and transmitting real property, including leaseholds for lives or years, be a corporation sole by the name of "The Treasurer of Public Charities," and by that name shall have perpetual succession, and plead and be impleaded before all Courts, justices, and others. Official (a) Now the official trustee of charity lands: Charit. Trusts Amend. Act, charity lands. 1855, s. 15, post. trustee of Land held upon trust for 48. Where any land, or any term or estate therein, Sect. 48. may in cer vested in the holden upon trust for any charity, shall be vested in any persons other than the persons acting in the a charity, administration and application of the rents; or where tain cases be there shall be no trustees thereof, or the trustees, or treasurer (a). any of them, shall be unwilling to act, or it shall be uncertain in whom such land, term or estate, shall be vested, or all or any of the persons in whom such land, term or estate shall be vested, cannot be found, or shall be under age, lunatic, or of unsound mind (whether found such by inquisition or not), or otherwise incapable of acting, or shall be out of the jurisdiction or not amenable to the process of the Court of Chancery, or where by reason of the reduced number of trustees or other causes a valid appointment of new trustees cannot be made, or where by reason of the expenses incident to the appointment of new trustees, and the conveyance or assignment of such land, term, or estate, to such new trustees, it shall appear to the Court of Chancery (b), or to any judge of such Court or of any Court having jurisdiction with respect to such charity under this Act (c), desirable so to do, such Court or judge may order that such land, term or estate be vested in such treasurer, and thereupon the same shall vest in such treasurer and his successors for all the estate and interest holden in trust for the charity as aforesaid, without any conveyance or assurance thereof; but no such vesting order as aforesaid shall be made in respect of any land, or term or estate as aforesaid, holden in trust as aforesaid, vested in a corporation, without the consent of the corporation (d); and no such vesting order shall take effect in respect of any copyhold land without the consent of the lord of the manor; and the Court of Chancery, or such judge, may direct such periodical or other payment, as such Court or judge may think fit, to be made to the lord of the manor, in compensation for fines or other profits which would have become due upon death or admittance of tenants. (a) Now the official trustee of charity lands: Charit. Trusts Amend. Act, 1855, s. 15, post. Sect. 48 (a)(d). Rent-charge. Official trustee bare trustee. Advantage of vesting land in official trustee. Jurisdiction vested in Charity Commissioners. City of London parochial charities. Chancery Division. Churchwardens and Overseers. Land may be re-vested of the charity (a). A rent-charge, being "land" within the definition in sect. 66 of this Act, may be vested in the official trustee. The official trustee holds land vested in him as a bare trustee: sect. 50 of this Act, post. And land vested in him may be re-vested in the charity trustees sect. 49 of this Act, post. The official trustee may be directed to convey land vested in him: Charit. Trusts Amend. Act, 1855, s. 37, post; and as to his concurrence in conveyances, see ante, p. 491. If the official trustee is made a party to any legal proceedings, he requires to be indemnified against costs. The benefits derivable from the constitution of the official trustee of charity lands are the simplification of title to charity property, and the saving of the heavy and recurring expense of conveyances on each appointment of trustees. So little is the ordinary administration of a charity varied by the circumstance that its real estate is vested in the official trustee, that it is only in the two cases, either of a sale or of the institution of legal proceedings in respect of land so vested, that the trustees become practically aware of the fact. It cannot, therefore, be said that the vesting of charity land in the official trustee has the effect of diminishing the legitimate authority of the trustees of the charity: see the Twenty-ninth Report of the Charity Commissioners, App., p. 24, n. The jurisdiction conferred by this section is now exerciseable by the Charity Commissioners: Charit. Trusts Act, 1860, s. 2, post; and see Charit. Trusts Act, 1887, s. 5, post. Schemes under the City of London Parochial Charities Act, 1883, s. 12, post, must provide for the vesting of charity lands in the official trustee. (b) This jurisdiction is now transferred to the High Court of Justice (Jud. Act, 1873, s. 16), and applications under this section come within the matters assigned to the Chancery Division: ibid., sect. 34, sub-s. (2); see Att.Gen. v. Langham, 82 L. T. p. 246. (c) See sect. 32, ante. (d) Where charity lands are vested in the churchwardens and overseers of a parish as a corporation under 59 Geo. III. c. 12, s. 17, the legal estate cannot be transferred from them and vested in the official trustee of charity lands without their consent: Re Hackney Charities, 34 L. J. Ch. 169. This section, and the decisions as to when lands become vested under it in the churchwardens and overseers, will be found ante, pp. 238 et seq. 49. It shall be lawful for any Court or judge by in the trustees whom respectively any such vesting order may have been made, or for any other Court or judge having jurisdiction in the matter, if it shall so seem fit to such Court or judge, from time to time to order that all or any part of the land, term or estate, which shall for the time being be vested in the said treasurer (b) by virtue of any such vesting order as aforesaid, shall be devested, and that the same shall be vested in the acting trustees or trustee for the time being of the charity; and such last-mentioned order shall operate to vest such land, Sect. 49. term and estate, in the trustees or trustee therein named without any conveyance or assurance. (a) These orders may now be made by the Charity Commissioners: Charit. Trusts Act, 1860, s. 2, post. See, also, Charit. Trusts Amend. Act, 1855, s. 37, post. (b) Now "official trustee of charity lands": Charit. Trusts Amend. Act, 1855, s. 15, post. to be a bare trustee, &c. 50. Subject to the orders and directions of the Court Treasurer (a) of Chancery (b) or of any such judge, such treasurer (a) shall be deemed a bare trustee, and shall permit the persons acting in the administration of the charity to have the possession, management, and control of the trust estates, and the application of the income thereof, as if the same had been vested in them. (a) Now "official trustee of charity lands": Charit. Trusts Amend. Act, 1855, s. 15, post. See, also, sect. 16 of the Charit. Trusts Amend. Act, 1860, post; and sect. 12 of the Charit. Trusts Act, 1869, post. (b) Now the Chancery Division, to which the jurisdiction is assigned: Jud. Act, 1873, s. 34, sub-s. (2). to official trustee. It seems doubtful whether there is jurisdiction under this section to make Transfer of an order giving to the official trustee of charity lands any active duties active duties beyond such (if any) as may be necessary for the purpose of, or incidental to, vesting the property in him. The words "orders and directions of the Court of Chancery or of any such judge," must, it is conceived, be read in connection with sect. 48. If so, they refer merely to vesting orders made under that section, and the two sections together mean that, subject to any incidental direction given in or for the purpose of a vesting order, the official trustee is a bare trustee. In that case the possession and control of the trust estates could not be taken from the trustees of the charity and vested in the official trustee; nor could the powers and duties of such trustees be circumscribed. Whether this view be right or not, at all events the Charity Commissioners cannot make an order having the effect of taking all or any of the duties of the trust away from the charity trustees and vesting them in the official trustee. The jurisdiction transferred to the commissioners by sect. 2 of the Charit. Trusts Act, 1860, includes the power to make orders "for or relating to the assurance, transfer, payment, or vesting, of any real or personal estate." Orders of the kind in question do not come within these words. &c., shall be 51. The secretary for the time being of the said Board, Secretary, and such other public officer or officers as the Lord Chancellor Official T. L L Trustees of held in trust for a charity ferred to them (a). person of whom Sect. 51. shall appoint, shall be Official Trustees of Charitable Funds, and (b) where trustees or other persons having in their names, or in the name of deceased any they are representatives, in the books of the Bank of England, or of the East India or South Sea Company, or of any other public company, any annuities, stock, or shares, or holding any government or parliamentary or other securities in trust for any charity, shall be desirous to transfer or deposit the same to or with the said official trustees in trust for such charity, or where any persons shall be desirous of transferring or depositing as aforesaid any annuities, stocks, shares, or securities for discharging any legacy or charge given or made to or for the benefit of any charity, or where it shall or where it shall appear to the Court of Chancery, or to any judge of such Court, or of any District Court of Bankruptcy, or (c) County Court having jurisdiction under this Act, that any annuities, stock, shares, or securities held in trust for any charity ought, for the purpose of security or convenient administration, to be transferred or deposited as aforesaid, it shall be lawful for such Court or judge to order the transfer or deposit of such annuities, stock, shares, or securities to or with such official trustees. Official trustees of charitable funds. Effect of vesting in official trustees. (a) As to the constitution of the official trustees of charitable funds, see Charit. Trusts Amend. Act, 1855, s. 18, post, and Charit. Trusts Act, 1887, s. 4, sub-s. (1), post. As to the investment and disposal of money received by them, see Charit. Trusts Amend. Act, 1855, ss. 23, 24, and 28, post; and as to the conduct of business by them generally, see sects. 21 and 22 of the same Act, and Charit. Trusts Act, 1887, s. 4, sub-s. (2), post. With regard to transfers and payments to and by the official trustees, see Charit. Trusts Amend. Act, 1855, ss. 12 and 25, post; Charit. Trusts Act, 1860, s. 12, post; Charit. Trusts Act, 1887, s. 4, sub-s. (2) (b), post. The agency of the official trustees of charitable funds effects two purposes. It secures the safety of the capital of the charity funds, and it relieves the charities from all expense and delay in obtaining payment of income when due. But the administration of the income of a charity the funds of which are vested in the official trustees is in no respect more completely under the control of the Charity Commissioners than is that of any other charity. The official trustees have neither the means nor the power to interfere with the administration of the income, or in the management of any charities. |