Provisions of Conveyancing Acts. The same Act also conferred upon a trustee a new power, under certain circumstances, of retiring without having a successor appointed in his place. It provides that where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom, without any new trustee being appointed in his place (1). A further novelty was also introduced by the Conveyancing Act, 1881, with regard to the transfer of the trust property to the new trustee by means of what is called a "vesting declaration." The Act provides that where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land, subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to more simple and effectual the titles This enactment is, however, sub- the Act. The provisions of the Act of 1850 (13 & 14 Vict. c. 28) are also extended to "any land acquired by trustees in connexion with any society or body of persons comprising several congregations or other sections or divisions or component parts associated together for any religious purpose, when such land is held in trust for any of the following purposes, viz.: (1) A place for religious worship: (3) A burial-ground: (6) A residence for a minister or schoolmaster, or for the caretaker of a place of religious worship, or of a schoolhouse or a meeting-house, or offices or other buildings for or in connexion with religious or educational purposes. (1) See Clerke and Brett's Conveyancing Acts, 3rd ed., p. 146, where attention is directed to the restrictions with which this power is guarded. vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right. Where a trustee retires under the power that we have previously noticed (ante, p. 535), the "vesting declaration" must be made by all the parties to the deed, i.e. by the retiring and continuing trustees, and by the other persons, if any, empowered to appoint trustees. The legal estate in copyholds or customary lands (ante, p. 184), mortgages, and shares, &c., transferable in books kept by a company or other body, are, however, expressly excluded from the operation of a vesting declaration (1). The principal duty of the Court with regard to trusts is to Removal of see that they are properly executed, and as ancillary to this the trustees. Court has power to remove a trustee. The main principle on which the jurisdiction ought to be exercised is the welfare of the beneficiaries of the trust estate. Friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded (2). CHARITIES. The subject of Charities has already (Chapter XIX., Book I.), been to some extent considered in connection with real property, and it must now be briefly noticed in connection with the law relating to trusts, as by the express language of the Judicature Act (36 & 37 Vict. c. 66, s. 34), the execution of trusts charitable has been specially assigned to the Chancery Division. Attention has already been directed (ante, p. 230) to the stringent provisions of the Mortmain and Charitable Uses Act, 1888, with regard to gifts of land for the benefit of charities. On the other hand, it must be borne in mind that charities are Charities regarded with favour by the law, and accordingly gifts to them regarded are held valid, which would have been void if made in favour of favour. individuals. Gifts to charities receive a liberal construction. See (1) Seet. 34; Sects. 1 and 2. note to Clerke and Brett's Conveyancing Acts, 3rd ed., p. 148, et seq. (2) Letterstedt (now Vicomtesse Montmort) v. Broers and Another, 9 App. Cas. 371, 389. See as to juris diction to appoint trustee : Re Smirth- with Doctrine of cy-près. Thus, when there was a trust to such charitable institutions as the testator should by codicil appoint without name, and there was no codicil, it was held there was a clear charitable gift. And in a case in modern times, where there was a gift to charitable institutions to be chosen by the testator himself, by a subsequent codicil, and in default of such choice, then "to be distributed by his executors at their discretion," and there was no subsequent codicil, it was decided that a valid charitable trust was created. A gift to such charitable institutions as the testator shall by codicil appoint is, without more, a clear gift to charity, though no codicil is made (1). The doctrine of the Court in carrying into effect the charitable intention of a testator, although no definite purpose is named, or the purpose named is impracticable, is called the doctrine of cy-près, i.e., the trust is carried out as near as possible. The principle on which the Court proceeds was stated by Lord Eldon as follows:-" If a testator has manifested a general intention to give to a charity, the failure of the particular mode in which the charity is to be executed shall not destroy the charity; but if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, though the formal intention as to the mode cannot be accomplished." The Court, in fact, treats charity in the abstract as the substance of the gift, and the particular disposition as the mode, so that in the eye of the Court the gift, notwithstanding the particular disposition may not be capable of execution, subsists as a legacy which never fails and cannot lapse (2). The principle of cy-près cannot be better illustrated than by an oft-quoted case which was decided nearly half a century ago. In this case there was a bequest of the residue of a testator's estate to a company to apply the interest of a moiety "unto the redemption of British slaves in Turkey or Barbary," one-fourth to charity schools in London and its suburbs, and one-fourth towards "necessitated decayed" freemen of the company. The will was dated 1723, but when the matter came before the () Mills v. Farmer 1 Mer. 55; Moggridge v. Thackwell, 7 Ves. 86; Pocock v. Attorney General, 3 Ch. D. 342. (2) Moggridge v. Thackwell, 7 Ves. 36, 69; Mayor of Lyons v. Advocate General of Bengal, 1 App. Cas. 91. This class of cases, which is characterised by Mr. Tyssen as very unsatisfactory, is thus described by him: "When a testator has devoted property to some charitable or quasicharitable purpose; but owing to some impediment either of law, or of the consent of some person or persons, or the default of some expected set of circumstances, the testator's object cannot be carried out in the manner pointed out by him." Court more than a century after, there were no British subjects Doctrine of cy-près. held in slavery in Turkey or Barbary, and the Court sanctioned a scheme under which the moiety of the testator's estate which had been thus undisposed of was given to the donees of the two other fourth parts (1). The doctrine of cy-près was much considered by the late Sir George Jessel in a case which came before him in the year 1881 (2). There the question was with regard to the application of a considerable fund which had been left in the year 1629 for the benefit of the poor of Kensington, "As the trustees for the time being should think fit to establish for ever." At that time the then village of Kensington was a small village, about a mile and a half from Hyde Park Corner, and in old documents it is called a village, and the trusts were wholly unsuited to the ideas and wants of the present time. The Master of the Rolls in this case laid down the principle that the cy-près doctrine is applied to charitable gifts, when from lapse of time and change of circumstances it is no longer beneficial to carry out the intention of the donor in the exact mode which he has directed. In delivering judgment he expressed himself as follows: "Again, circumstances have changed in another way. The habits of society have changed, and not only men's ideas have changed, but men's practices have changed, and in consequence of the change of ideas there has been a change of legislation; laws have become obsolete, or have been absolutely repealed, and habits have become obsolete, and have fallen into disuse, which were prevalent at the times when these wills were made. The change, indeed, has become so great in the case that we are considering, that it is eminently a case for the application of the cy-près doctrine, if there is nothing to prevent its application." It must be borne in mind that, as Mr. Jarman tells us, the Court does not take upon itself to frame schemes for the disposal of money for any other than charitable purposes. All moneys, therefore, not bequeathed in charity must have some definite object, and when a bequest is for charitable purposes, and also for indefinite purposes not charitable, and there are no apportionments in the will, the whole gift is void (3). As a general rule, where a fund given to a charity, either with or without the interposition of individual trustees, is in the () Attorney-General v. The Ironmongers' Co., 2 Beav. 313. (3) Re Campden Charities, 18 Ch. D. 310. (3) Jarman on Wills, 4th ed. p. 214. Doctrine of possession of the Court, it will not be paid out until a scheme is cy-près. settled for its administration. Where, however, a fund is given to a corporation, or a treasurer, or officer of a charitable institution in England for a charitable purpose (unless upon different trusts from those of the general funds of the institution) the Court of Chancery will order it to be paid to the corporation, &c., without the settlement of a scheme (1). In connection with the doctrine of cy-près, in relation to gifts to charities, it will be desirable to notice the mode in which charitable trusts are executed. The result of the authorities is summed up in a standard work as follows (2): "Where there is a general indefinite charitable purpose, not fixing itself upon any object, or if the object or means of carrying it out fail, the disposition is in the Queen by sign-manual; but where the execution is to be by a trustee, with some or general objects pointed out, the Court will take the administration of the trust." The application of charitable funds by sign-manual are now very rare, and the administration of the fund when a case for the application of the doctrine of cy-près arises is superintended by the Chancery Division, or by the Charity Commission, by means of what are called "schemes for the purpose of applying and managing the fund" (3). (1) Tudor's Charitable Trusts, p. 125, et seq., and see In re Lea. Lea v. Cooke, 34 Ch. D. 528. (2) Seton on Decrees, vol. i. p. 557; Moggridge v. Thackwell, 7 Ves. pp. 86, 123. (3) The powers of the Court and of the Charity Commission in directing new schemes are limited by the doctrine of cy-près, and when a scheme is to be framed which falls outside it, an event which rarely if ever happens (the doctrine of cy-près being now, since the decision in Re Campden Charities, 18 Ch. D. 310, so wide), the Legislature alone can interfere, and an Act of Parliament must be obtained. Mitcheson Charity Commission Acts, p. 66, and Tudor's Charitable Trusts, 3rd ed. pp. 133, 231, 562. |