It was held in one case, where so much of the residuary personal Costs. estate as could by law be disposed of for charitable purposes was given to charity, and the rest of the personal estate was left undisposed of, that the costs of an administration action should be borne by the impure personalty (d). But it is now settled that the costs of an administration action cannot be directed to be paid out of a lapsed share, as, for example, so much of a residue given to charity as fails (e). Legacy duty on a legacy bequeathed free of duty is equivalent Legacy duty. to an additional legacy, and can only therefore be paid out of pure personalty (ƒ). Where the gift is of a clear annuity, or of a sum sufficient to produce a clear annual income of specified amount, it is construed to be a gift free of legacy duty (g). But the mere fact that if legacy duty is deducted the legacy will be insufficient for the purpose for which it was intended, is not enough to show an intention that it should be given free of duty (h). A legacy given in pursuance of a covenant stands in the same Legacy in position as any other legacy (i). pursuance of covenant. A legacy, the payment of which is postponed, ranks equally Postponed with others in the distribution of the assets (k). legacy. lutely entitled, immediate mulation In the case of ordinary legacies, a legatee having a vested in- Charities, terest may, on his attaining twenty-one, call for payment of his though absolegacy, even though the accumulation thereof may be directed for cannot have a period in excess of the limits allowed by the statute (1). This, payment however, is not the case where the legacy is charitable. Thus, in where accuHarbin v. Masterman (m), where charities were absolutely entitled to directed. personalty directed to be accumulated, it was held by Wickens, V.-C., that the charities were not entitled to have the accumulations stopped, and the legacy paid at once; but that the accumulations must go on until further order. Where there has been a bequest to a charity which has been Accumula man, W. N. 1884, 104; Elliott v. Dearsley, 16 Ch. D. 322; and see Gaskin v. Rogers, L. R. 2 Eq. 284. (d) Taylor v. Mogg, 27 L. J. Ch. 816. See also Taylor v. Linley, ibid. 701. (e) Blann v. Bell, 7 Ch. D. 382. (ƒ) Wilkinson v. Barber, L. R. 14 Eq. 96; Farrer v. St. Catherine's Coll. Cambridge, L. R. 16 Eq. 19. (g) Re Coles' Will, L. R. 8 Eq. 271. T. (h) Re De Rosaz, Rymer v. De Rosaz, 2 Times L. R. 871. (i) Fox v. Lownds, L. R. 19 Eq. 453. (k) Nickisson v. Cockill, 3 De G. J. & S. 622. (1) Gosling v. Gosling, John. 265; Coventry v. Coventry, 2 Dr. & Sm. 470; Phillips v. Phillips, W. N. 1877, 260. (m) L. R. 12 Eq. 559. F tions follow capital. Legacy when Lunacy. unapplied and allowed to accumulate, the accumulations go to the charity along with the original bequest (»). Where there has been no admission of assets, or trust created, or sum set apart for the payment of a charitable legacy, it is barred at the end of twelve years by the Statutes of Limitations (o). Occasionally charitable subscriptions and donations are allowed to be made out of a lunatic's estate (p). (n) Forbes v. Forbes, 18 Beav. 552. (p) Re Frost, L. R. 5 Ch. 699; Re Strickland, 6 ibid. 226. See Re Evans, 21 Ch. D. 297; Re Darling, 39 Ch. D. 208. CHAPTER IV. JURISDICTION. SECTION I. JURISDICTION OF VISITORS. Corporations Generally. charitable BEFORE proceeding to examine the position and jurisdiction of Nature of visitors of charities, some preliminary observations are required as to the nature of charitable foundations. foundations. The duty of carrying charitable trusts into execution may be Charitable entrusted either to individual trustees or to corporations. trusts vested in trustees or In the present section we are concerned solely with the cases in corporations. which corporations are the depositories of charitable trusts, for Only corpora they alone are subject to visitation. tions visitable. Corporations, unless they exist by the common law or prescrip- Creation of tion (a), can only be created by the express consent of the Crown, corporations. either by means of an Act of Parliament or a charter. The first division of corporations is into corporations sole (b) and Corporations corporations aggregate. Corporations sole may hold estates for charitable uses (c). a parson may take lands, but not goods, and hold them in sion to the use of the parish (d). Thus, succes sole and aggregate. Corporations sole may hold property on charitable trusts. In Att.-Gen v. Ruper (e), it was said that, "as on the one hand the Parson. Ecclesiastical rations. sonal things, for the use of the church, but are not enabled to take lands" (h). The division of corporations which is chiefly material for our and lay corpo- present purpose is, however, the division into ecclesiastical corEleemosynary porations and lay corporations (i); lay corporations being again divided into eleemosynary and civil. and civil corporations. Ecclesiastical Ecclesiastical corporations are those of which not only the members corporations. are spiritual persons, but of which the objects also are spiritual. They are corporations created for the furtherance of religion, and perpetuating the rights of the church (¿). Civil corpora tions. "A benefice is not made spiritual because it can be held only by a person in holy orders; it is the object for which the house is established that makes it a spiritual or lay foundation. If a hospital be established for the relief of the poor, and if there be no cure of souls attached to it, it is a lay foundation, although the founder shall have annexed, as a qualification for the office, that no person shall be master or warden of it except a clerk in holy orders" (k). Civil corporations are corporations created for a variety of temporal purposes. The King and corporations of cities and towns are both civil corporations; the one established for the preservation of the throne, the others for the good government of the particular localities: so, also, various trading companies, for the furtherance of manufactures and commerce; and churchwardens, for the preservation of the goods of the parish, and so forth (7). Under the same head fall corporations for the advancement of learning, as the Universities of Oxford and Cambridge (1); the Colleges of Physicians and Surgeons, the Royal Society, and so forth. Eleemosynary Eleemosynary corporations are such as are constituted for the corporations. perpetual distribution of the free alms or bounty of the founder to such persons as he has directed (7). Hospitals and colleges. Eleemosynary corporations are of two kinds-hospitals (m) and colleges (n). (h) With regard to charities vested in the rector and churchwardens of a parish, or the churchwardens and overseers, sce post, pp. 238, 239. (i) 1 Bl. Com. p. 470. (k) Per Lord Romilly in Att.-Gen. v. (m) By 39 Eliz. c. 5, made perpetual "There is no manner of difference between a college and an hospital, except only in degree; an hospital is for those that are poor, and mean, and low, and sickly a college is for another sort of indigent persons; but it hath another intent, to study in, and breed up persons in the world, that have not otherwise to live; but still it is as much within the reason of hospitals. And if in an hospital the master and poor are incorporated, it is a college having a common seal to act by, although it hath not the name of a college (which always supposeth a corporation), because it is of an inferior degree" (o). universities. The colleges of the Universities of Oxford and Cambridge are Colleges of eleemosynary corporations, although they are sometimes totally composed of ecclesiastical persons. A hospital for the poor, without cure of souls, is an eleemo- Hospital lay synary foundation, although the master is required to be in holy though master foundation, orders (p). in holy orders. There are, moreover, corporations of an eleemosynary character, Grammar and such as where trustees, governors, or the schoolmaster and usher (q), free schools. or the schoolmaster alone, are incorporated, for the education of children at grammar and free schools; and there are also schools connected with colleges and cathedrals (»). charitable corporations. There are also modern corporations created by Act of Parliament Modern or by charter, to carry into execution some public charity by means of incorporated trustees; such as "The Governors of the Bounty of Queen Anne, for the augmentation of the maintenance of the poor clergy," "The Society for the Propagation of the Gospel in foreign parts," and "The Incorporated Society for promoting the enlargement, building, and repairing of churches and chapels" (s). These societies are not, however, to be classed with eleemosynary corporations properly so called. Corporations, such as, for example, eleemosynary corporations, Charitable created for the purpose of carrying into effect objects which the corporations. law holds to be charitable, may be properly called charitable corporations. trusts vested Corporations not created for charitable purposes may also be the Charitable depositories of charitable trusts. And such trusts will, as we shall see (t), always be enforced. (0) Per Holt, C. J., in Phillips v. Bury, 2 T. R. at p. 353. (p) Att.-Gen. v. St. Cross Hospital, 17 Beav. 435, 465. (9) Att.-Gen. v. Price, 3 Atk. 108. (r) Att.-Gen. v. Magdalen College, Oxford, 10 Beav. 402; Whiston v. Dean and Chapter of Rochester, 7 Hare, 532. (s) 2 & 3 Anne, c. 20; 6 Anne, cc. 24, in corporations enforced. |