trust or for the benefit of any charitable uses or trusts whatsoever, all the estate, right, interest, and title, and all the powers of such body corporate, or of such member or members of such body corporate, in respect of the said uses and trusts, shall continue in the persons who, at the time of the passing of that act, are such trustees as aforesaid, notwithstanding that they may have ceased to hold any office by virtue of which before the passing of that act they were such trustees, until the 1st day of August, 1836, or until parliament shall otherwise order, and shall immediately thereupon utterly cease and determine: Provided always, that if any vacancy shall be occasioned among the charitable trustees for any borough, before the said 1st day of August, it shall be lawful for the lord high chancellor or lords commissioners of the great seal for the time being, upon petition in a summary way, to appoint another trustee to supply such vacancy; and every person so appointed a trustee as last aforesaid, shall be a trustee until the time at which the persons in the room of whom he was chosen, would regularly have ceased to be a trustee, and he shall then cease to be a trustee : Provided also, that if parliament shall not otherwise direct, on or before the said 1st day of August, 1836, the lord high chancellor or lords commissioners of the great seal shall make such orders as he or they shall see fit, for the administration, subject to such charitable uses or trusts as aforesaid, of such trust estates."

4. Of petitions under private acts of parliament.] In some private acts of parliament regulating charities, applications are directed to be made, by petition, in the Court of Chancery. Thus by stat. 59 Geo. III. c. 22, s. 50, the dean and any two of the chapter of the cathedral church of Hereford, for the time being, may prefer a petition or petitions concerning St. Catherine's Hospital, in Ledbury, to any of the judges of that court, who are empowered to hear the same in a summary way, and to make such orders as shall be thought fit.

By 1 & 2 Will. IV. c. 17, s. 29, the governors of Birmingham Free Grammar School are directed to obtain the

direction, approbation, or sanction of the Court of Chancery, when necessary, under the provisions of that act, by the order of that court made in a summary way upon a petition, to be presented by the said governors for the time being; but one month's previous notice of the general nature of the intended application must be given in a Birmingham newspaper.

By the 14th section of the private act 7 Geo. IV. c. 29 (which repeals the 4th Geo. III. c. 71, and 33 Geo. III. c. 127) for the regulation of the Bedford charity, in case the directions therein contained shall be inconvenient or impracticable, or if any doubts, disputes, or difficulties shall arise, or whenever the order of a Court of Equity as to the administration of the said charity estates, or application of the rents thereof, or touching the construction of the rules contained in the schedule to that act, or to be made by the trustees in pursuance thereof, the trustees, or any eight or more of them, may prefer a petition to the lord chancellor, lord keeper, or lords commissioners of the great seal who are directed to cause the same to be heard in a summary way; and such orders as the Court of Chancery shall make therein, or upon the hearing thereof, shall be obeyed by, and be final and conclusive to all persons whomsoever; the costs and expenses to be incurred by every such petition to be paid out of the rents of the charity estates.

By the 15th section of 7 Geo. IV. c. 29, in case any trustee or trustees shall, either whilst a trustee or after he has ceased to be so, misconduct himself in the application of the rents of the charity estates, or in the management thereof, or in not duly accounting, or in the execution of the powers of that act, or shall misdemean himself or themselves in any manner relating to the said charity, or the estates thereof, the attorney general, and also any person or persons whomsoever with his consent, may prefer a petition to the lord chancellor, &c. against any such trustee or trustees, with or without making all or any of the other trustees or any other persons who had been trustees parties, if the attorney general or other persons shall so think fit; and the lord chancellor, &c. is directed to hear such petition, in such manner as shall be thought fit, for

the discovery of the truth; and the orders of the Court of Chancery are to be conclusive, and enforced by the same process as any other orders of the said court; the costs to be paid by such party and out of such fund as the said court shall direct ; but the trustees appointed under that act are to be liable to be sued in the same manner as any other trustees for charitable purposes are liable to be sued in law or equity.

By the last-mentioned act, the trustees of the Bedford charity, who are a body corporate, are empowered to remove the master of the English school, for just and reasonable cause. One of the masters, who had been dismissed by the trustees, having presented a petition against them, complaining that he had been dismissed irregularly and not for good and reasonable cause, it was held that the court had no jurisdiction to entertain the petition, as the 15th section of the act did not give a power to present a petition calling in question the act of the whole body of trustees, but only to provide for redress to be given in cases where some of the trustees had misconducted themselves, or were alleged to have done so (p).

Where petitioners contended that they were entitled to relief, either under the statute 52 Geo. III. c. 101, or the Bedford Charity Act, Lord Eldon held that they must elect under which act they would proceed, because, by the particular act, the judgment of the lord chancellor was final; but under the 52nd Geo. III. c. 101 (q), it is subject to appeal. The court cannot proceed under two jurisdictions, and give a judgment which is final and not final (r).

Although the Bedford Charity Act authorised the court, in the instance of misconduct of the trustees of the charity, to interfere on the petition of any person or persons, Lord Eldon held, that in judicial construction those words did not include persons who had no interest in the funds (s).

The court has no power to give costs in proceeding under

(p) In re Bedford Charity, 5 Sim. 578. See 2 Swanst. 470, 523; Attorney General v. Corporation of Bedford, 2 Ves. sen. 505.

(q) Ante, p. 481.
(r) In
Swanst. 518.

re Bedford Charity, 2

(s) Ibid, 525.

the summary powers of an act of parliament, unless express power for that purpose is given (t).

By stat. 39 Geo. III. (for effecting an exchange of lands belonging to the free grammar school of Wotton-under-Edge), it was enacted, that in case any difficulty should at any time. arise, touching the application of the increased revenue arising to the charity, in consequence of the exchange, or thereafter to arise from the charity estate, or respecting any matter or thing in regard to the regulation or constitution of the said charity, or the ordinances thereof, it should be lawful for the master, patron, or trustees for the time being to prefer a petition to the lord chancellor, lord keeper, or lords commissioners of the great seal of Great Britain, who were thereby authorised and directed to cause the same to be heard in a summary way; and such orders as the Court of Chancery should make therein, or upon hearing thereof, should be observed and obeyed by, and should be final and conclusive to, all persons whomsoever (v).

(t) Ibid. 532. (v) See 17 Rep. of Commrs. of Charities, p. 345.

512

CHAPTER V.

OF THE CONSTRUCTION OF GIFTS TO CHARITIES, AND
THE ADMINISTRATION OF THE FUNDS.

SECT. I.-Favourable construction of Charitable Gifts.
II. Cases where Charities are entitled to the whole In-
come of Estates, or to fixed payments only.
III.-The doctrine of Cy Pres, or approximation to the
Donor's intention.

IV.—Of Bequests to Charity void for uncertainty.

SECTION I.

Favourable construction of Charitable Gifts.

1. Legacies to Charities favoured in the Civil Law, p. 513.

2. Defective assurances in favour of Charities aided in Equity, p. 514.

3. A Perpetuity may be created without words of Inheritance, p. 517.

4. Cases where neither Trustees nor objects are named, but there is a Reference to a future Appointment not made, p. 518.

5. Cases where no Trustees are named, but there is a Reference to a Class of objects without naming any Individuals, p. 523.

6. Cases of Bequests to Trustees for such Charitable Purposes as they in their discretion shall Appoint where Objects are, or are not named, p. 524.

7. Cases of Failure of Trustees and of Persons to select objects arising ex post facto, p. 530.