Voluntary Subscriptions. Sect. 62 (d). (d) The jurisdiction of the Court in regard to voluntary subscriptions has already been considered: see ante, p. 97. It may, however, be useful to Jurisdiction examine the cases more closely. The jurisdiction of the Court to administer a charity estate depends on the existence of a trust. of Court. If the Court finds that there is property impressed with a charitable trust, Existence of it will see to the execution of the trust and will administer the estate. It is trust. altogether immaterial whether the property originated in the donation of one person or the subscriptions of many. If there is, in fact, property held upon trust, the Court has jurisdiction. Thus, the Court will execute the trusts of a fund raised by voluntary sub- Subscriptions scriptions for the establishment of a hospital: Att.-Gen. v. Kell, 2 Beav. forming 575. permanent fund. And it makes no difference whether the fund is subscribed to form the Immediate endowment of a permanent charitable institution, or whether it is intended distribution. to be applied at once to answer an immediate charitable purpose. Thus, where a fund had been raised by voluntary subscriptions for the relief of sufferers in a colliery accident, the Court interfered to see to its application: Pease v. Pattinson, 32 Ch. D. 154. So, again, where a fund had been raised for the improvement and repair of a church: Strickland v. Weldon, 28 Ch. D. 426. In the last-mentioned case the action failed because it was improperly constituted by reason, among other things, of the absence of the Attorney-General. The case is quite different where there is no fund as yet in existence; as, No fund in for instance, where the Court is asked to give directions with regard to existence. voluntary subscriptions which may or may not be collected. Obviously, the Court can no more administer subscriptions not yet collected than it can declare the trusts of a bequest before the testator dies. In one case, an information was filed for the execution of the trusts of a dissenting chapel, and it appeared that the expenses of the repairs of the building, and of the celebration of divine service, were defrayed by voluntary contributions made from time to time at the church door. Lord Eldon said: "This Court has nothing to do with the voluntary subscriptions which may be paid to-day and withheld to-morrow; its jurisdiction is founded only on its right to declare the trust of the chapel, and how the chapel is to be used”: Leslie v. Birnie, 2 Russ. 114, 119. See Davis v. Jenkins, 3 V. & B. 151. In Leslie v. Birnie, if the subscriptions had actually been raised, and the trustees had refused to apply them for the purposes intended, the Court would certainly have interfered to enforce the proper application of the fund. The case would then have been similar to Pease v. Pattinson and Strickland v. Weldon. And the fact that a charity is dependent for its income on voluntary Charity being subscriptions may make the Court reluctant to interfere, even though it is dependent on voluntary possessed of property settled by a trust deed. subscriptions reluctant to In Ex parte Pearson, 6 Price, 214, there was a school, the only endowment may make of which was the land and building, which was settled by a trust deed, the Court income of the charity being entirely derived from voluntary subscriptions. interfere. The Court, although not denying that it had jurisdiction to execute the Ex parte trusts of the deed, yet considered that it ought not lightly to interfere where Pearson. the result might be to stop the voluntary subscriptions. Sect. 62 (d). Jurisdiction of Charity Commissioners. Analysis. Interpretation. "Voluntary contributions," and "voluntary subscriptions,' identical. Richards, C. B., said (at p. 221): "This Court, being called upon to interfere with respect to this particular charity, must not fail to recollect that it has no existence except from the daily and voluntary contribution of the subscribers who may withhold their subscriptions to-morrow, when there would be an end of the institution altogether. If we had any jurisdiction in a case of this description, it would be a most injurious thing to make an order now, in its nature decretal, in a case wherein. . . . . the institution might in consequence be put an end to." The question of the jurisdiction of the Charity Commissioners is one of greater complexity. It depends upon the obscure provisions of this section, by which exemptions from the Act are created in the case of institutions 'wholly maintained by voluntary contributions" and charities "maintained partly by voluntary subscriptions and partly by income arising from an endowment." These provisions may be analysed thus: (1) Institutions wholly maintained by voluntary contributions are exempted from the Act. (2) Charities maintained partly by voluntary subscriptions and partly by income arising from an endowment are exempted so far as relates to the voluntary subscriptions and the application thereof. (a.) Donations and bequests of which no special application or appropriation is directed by the donor or testator, and which may be legally applied as income in aid of the voluntary subscriptions, are also exempted. (b.) Such donations, bequests, and voluntary subscriptions remain exempt, even though appropriated and invested by the governing body for some specific object connected with the charity. (c.) Donations and bequests in aid of a fund so appropriated are also exempt. The following interpretation of the provisions seems to be that which is most reasonable in itself and most in accordance with the decisions. No distinction in meaning can be drawn between voluntary contributions and voluntary subscriptions, although it must be confessed that the use by the legislature of the two expressions, where either would have sufficed, is inexplicable. In Governors for Relief of Poor Widows, &c. of Clergymen v. Sutton, 27 Beav. 651, Lord Romilly treated the expressions as identical in meaning. That was a case of a charity "maintained partly by voluntary subscriptions and partly by income arising from an endowment," and the M. R. in his judgment made frequent use of the expression "voluntary contributions" in place of "voluntary subscriptions." Include only "Voluntary contributions" and "voluntary subscriptions" are both used subscriptions, in the section in contradistinction to "income arising from an endowment." &c., intended to be used as It follows that the expressions include only contributions and subscriptions income. intended by the donor to be used as part of the current income of the charity. On the other hand, they are not confined to recurrent subscriptions, but must be extended to every donation and bequest which may properly be applied as income and not as capital. Meaning of "endowment." In was held by Lord Romilly, in Governors for Relief of Poor Widows, &c. of Clergymen v. Sutton, 27 Beav. at p. 663, that "endowment," as used in this section, has reference to an endowment made for some specific or particular purpose of trust, as distinct from the general purpose and object of the association; and he construed the definition of "endowment" in sect. 66 of this Act in accordance with this view: see post, p. 533. It is submitted (post, p. 533) that "endowment," as defined in sect. 66, includes every kind of capital property belonging to a charity. And if the view above taken, that voluntary contributions and subscriptions include only subscriptions intended to be used as income, is correct, it would seem that there is no reason why, in this section also, "endowment" should not comprise every kind of capital property belonging to the charity. If this is so, any gift of a capital sum to a charity is an endowment. A donation or bequest which, although not made for a specific purpose or trust, is nevertheless intended by the donor or testator to be treated as a capital fund of which the income only is to be expended for the purposes of the charity, is within this definition. So also is a fund raised by voluntary subscriptions, if such subscriptions are not intended to be employed as part of the income of the charity, but to constitute a permanent capital sum of which the income only is to be used. Sect. 62 (d). This interpretation seems to give an intelligible meaning to the section. Distinction "Endowment" includes any gift, whether derived from the donation of one between "endowperson or the subscriptions of many, intended to be used as capital. "Volun- ment" and tary contributions" and "voluntary subscriptions," which, as has been stated, voluntary are used in contradistinction to "income arising from an endowment," " contribucomprise all gifts (including donations and bequests) intended to be used as "subscrip income. 66 tions" or tions." In Pease v. Pattinson, 32 Ch. D. 154, a fund raised by voluntary sub- Pease v. scriptions and vested in trustees for the relief of the sufferers from a colliery Pattinson. accident was held to be a charity "wholly maintained by voluntary contributions." An opinion to the like effect was expressed with regard to a fund raised Strickland v. by voluntary subscriptions for the purpose of improving a church: Strick- Weldon. land v. Weldon, 28 Ch. D. at p. 430. It will be noted that in neither of these cases was a permanent fund intended to be created. In each of them the whole of the sum collected was intended to be applied once for all for the purpose indicated. contributions "Voluntary contributions" and "voluntary subscriptions" retain their Voluntary character, although they may not in fact have been applied as part of the and subscripincome of the charity, but may have been, by the action of the governors or tions invested trustees, set apart and invested as a permanent fund for the benefit of the as permanent fund. charity. In other words, it is the intention of the donors or contributors which constitutes a fund an endowment, not the purpose to which it has in fact been applied. As regards charities "maintained partly by voluntary subscriptions and Charity partly by income arising from an endowment," this rule merely re-states the partly maintained by express provision of the section, that donations and bequests applicable as voluntary income, and investments by the charity of such donations, bequests, and subscriptions. voluntary subscriptions, are exempt from the Act. The case of a charity of this kind arose in Governors for Relief of Poor Governors for Widows, &c. of Clergymen v. Sutton, 27 Beav. 651. There the plaintiff Relief, &c. of Clergymen v. charity was founded by charter in 1678. During the early period of its Sutton. existence its funds had arisen entirely from voluntary donations and subscriptions. The governors had also from time to time accepted grants for special charitable purposes, distinct from the general purposes of the corpo Sect. 62 (d). Royal Society of London v. Thompson. Institution wholly maintained ration, but no question with regard to them arose in this case. In 1682 the governors purchased out of the voluntary subscriptions certain freehold property for the general purposes of the charity, no special trust being declared of it. The plaintiffs had recently agreed to sell this property to the defendants, and the question was whether the sanction of the Charity Commissioners was required under sect. 29 of the Charit. Trusts Amend. Act, 1855, post. It was held that the property was not an endowment, but that, having been purchased by voluntary subscriptions, it retained that character, and was within the exemptions of this section. In Royal Society of London v. Thompson, 17 Ch. D. 407, the Royal Society having agreed to sell certain lands which had been purchased by them in 1732 out of moneys arising from the subscriptions of members, the question was raised whether the sanction of the Charity Commissioners was required. It appeared that the Royal Society was a voluntary association incorporated by charters of Charles II., that its members were elected by ballot, subject to certain payments, and that no one outside the society could claim admission to it, nor were there any duties which the public, as distinguished from its own fellows or members, could call upon the society to perform. There were certain trust funds administered by the society, which constituted endowments for various purposes, but no part of them was applied in payment of the purchase-money of the estate in question. It was held by Hall, V.-C., that the case came within this section, and that the sanction of the Charity Commissioners was not required. The same rule is applied to the case of an institution wholly maintained by voluntary contributions. Here, again, investments of voluntary contributions as a permanent fund do not constitute an endowment: Finnis and contributions. Young to Forbes and Pochin (No. 2), 24 Ch. D. 591. See further as to this case, post, p. 533. by voluntary Donation and bequest. No special application directed. Burden of proof. Exempted charities may In Re Wilson's Will, 19 Beav. 594, it was held that a legacy to "The Newport Pagnell Academy, of which the Rev. Thomas Bull is tutor," which was maintained partly by an income arising from an investment of moneys, but principally by voluntary contributions, came within the words "donation and bequest," and that the sanction of the commissioners was not required to a petition for payment of it out of Court. Where a testator gave a fund to trustees in trust to apply the income in supporting a school which he had founded, but gave power also to revoke the trust and divert the fund to other purposes, it was held not to be a case in which no special application had been directed by the testator, and, therefore, not to be within this section: Re Sir Robert Peel's School at Tamworth, L. R. 3 Ch. at p. 549. The burden of proof that a charity is within the exemptions of this section is upon those who allege it. See, however, Finnis and Young to Forbes and Pochin (No. 2), 24 Ch. D. 591, stated post, p. 533, and the observations there made upon that case. 63. It shall be lawful for any of the charities exempted petition Com- from the operation of this Act, by order or resolution duly made in conformity with the constitution or rules of such charity (and which in that case only shall be binding), to missioners to have benefit of Act. apply by petition to the Commissioners to have the benefit of Sect. 63. this Act either generally or as to any of the provisions herein contained; and such petition shall be under the seal of such charity if incorporated, and if not, then under the hands of the major part of the trustees and governing body of such charity; and in such case it shall be lawful for the Commissioners, if they shall think fit, to make an order in conformity with such application, and such charity shall thenceforth be entitled to and be bound by all the provisions of this Act, if admitted generally thereto, or by such of the enactments thereof as shall be mentioned and specified in such order of the Commissioners, but in either case in the same manner as if such charity had not been exempted from this Act, or such exemption had not extended to the enactments specified in such order (a). (a) Repealed by sect. 17 of the Charit. Trusts Act, 1869, sect. 14 of that Act being substituted for it. In Hamilton v. Spottiswoode, 15 W. R. 118, an application had been made Application on behalf of a charitable institution, exempted from the Act, to the Charity by governors Commissioners under this section, in pursuance of a resolution passed at a constituted. improperly meeting of the trustees and major part of the governing body of the institution. The meeting, however, consisted only of the remaining members of the original committee, the governing body having never been properly renewed according to the rules of the institution, and the plaintiff, who was one of the trustees, dissented. It was held by Lord Romilly, M. R., that there had been no "order or resolution duly made in conformity with the constitution or rules" of the charity, and, consequently, that the Charity Commissioners had no power to accede to the application. Under the substituted section, the application may be made by such of the trustees or the persons acting in the administration of the charity as might, under the Charit. Trusts Acts (if the charity were not one exempted from the operation of the Acts), apply for a scheme. among charities may the arbitraCommis tion of the 64. Provided also, that if any question or dispute Disputes shall arise among the members of any charity exempted members of from the operation of this Act (a) in relation to any office, or be referred to the fitness or disqualification of any trustee or officer, or his election or removal, or generally in relation to the management of the charity, it shall be lawful for twothirds of the members present at any special meeting, duly convened by notice for the purpose in the same manner in which meetings of such charity are by the T. M M sioners (a). |