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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pinion, Re [1964] EWCA Civ 1 (28 February 1964)
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Cite as: [1965] Ch 85, [1964] 1 All ER 890, [1964] 2 WLR 919, [1964] EWCA Civ 1

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BAILII Citation Number: [1964] EWCA Civ 1
Case No.:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(From: Mr. Justice Wilberforce)

Royal Courts of Justice Friday,
28th February 1964

B e f o r e :

LORD JUSTICE HARMAN LORD JUSTICE DAVIES
and
LORD JUSTICE RUSSELL
In the Matter of the Estate of ARTHUR WATSON HYDE PINION deceased:
Between

____________________

Between:
WESTMINSTER BANK LIMITED
Plaintiffs
- and -

EDITH MAY PINION (Spinster)

and

HER MAJESTY'S ATTORNEY-GENERAL
Defendants

____________________

Transcript of the Shorthand Notes of The Association
of Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice, and
2 New Square, Lincoln's Inn, London, W.C.2).

____________________

Mr. H.E. FRANCIS, Q.C. and Mr. G.T. HESKETH (instructed by Messrs. Scadding & Bodkin) appeared on behalf of the Appellant (First Defendant).
Mr. B.J.H. CLAUSON (instructed by the Treasury Solicitor) appeared on behalf of the Respondent the Second Defendant.
Mr. A.J. BALCOMBE (instructed by Messrs. Scadding & Bodkin) appeared on behalf of the Respondents the Plaintiffs.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE HARMAN: This appeal concerns the testamentary dispositions of Arthur Watson Hyde Pinion, who died in the year 1961 having by his Will made in 1956 as varied by a codicil made in 1961 sought to devote almost the whole of his not inconsiderable estate to a project designed to keep himself and his family for all time before the public eye by allowing the public to view without cost his studio situate at 22a Pembridge Villas, Notting Hill, intact with its entire contents. These treasures are to be entrusted to a custodian, first his sister and subsequently a blood relation of his, who are to be paid and housed out of his estate. The question is whether he was entitled to saddle his property with this chimaera to the deprivation of his next-of-kin and this the judge has held he was entitled to do at the instance of the Attorney-General, who persuaded him, though hardly, that the testator has created a valid charitable trust.

    The will and codicil are rambling and half coherent documents reduced to some semblance of order by the judge but his summary is, I think, perhaps too heat and logical and the actual words should be read to convey its authentic flavour. It starts by conferring a life interest in the whole estate on his sister, the first defendant, who is also his sole next-of-kin, and proceeds:

    "...and afterwards to my Trustees to offer my Freehold Studio 22a Pembridge Villas London W.ll to the National Trust with the pictures painted by myself and others, and my collection of antique furniture to be kept intact in the said Studio and shown at an appointed time by the National Trust in a similar way to their other properties and the income from my real and personal estate to be applied for the upkeep and maintenance of the said Studio and its contents with an income to be paid to a Custodian sufficient to make it worth their while my sister Edith May Pinion to be the first Custodian and after her life to be offered the custodianship with the income attached to any blood relations of mine or as long as they wish to hold the same with the use of a Flat in my freehold house No. 64 St. Stephens Gardens London W.2. The relations to whom this offer applies for custodianship are any descendant of my cousin Gilbert Whitbourn and my cousin Maud Prince. If any of these are not interested in this then my Trustees to appoint a custodian approved by the National Trust Also my Trustees to appoint some other body or Society to carry out the bequest in the event of the refusal of the National Trust to accept the conditions if they are unable or do not wish to carry it out themselves. Having obtained a scholarship at the Patrick Allan Fraser College of Arts at Hospitalfield, Arbroath, Angus in 1902 after four years tuition. The paintings done thereby by myself and afterwards now in my Studio may be considered to have sufficient merit for preservation along with my copies of portraits of the Hyde Family to be kept together with the original portrait of Edward Hyde First Earl of Clarendon by Lely and the early 17th Century portrait of Hamnet Hyde, both of which formerly hung in Hyde Hall, Hyde, Cheshire and mentioned in Eurwakers East Cheshire. Also the two portraits of myself painted at Hospital-field and of old Mrs. Munro of the Abbey Rouse, Arbroath, and the portrait I painted of George Herbert Hyde Villiers, Earl of Clarendon, E.G., G.C.M.G., G.C.V.O. when he was Lord Hyde in 1911 Also the portrait of his Grandmother, Caroline, Dowager Countess of Normanton, exhibited in the Royal Academy and the painting of a Cardinal, also exhibited in the Royal Academy 1909. Among the furniture I particularly wish to be retained along with my pictures in the Studio are the three needlework chairs 1730-40 done by Penelope Hyde, and the card table en suite formerly in Hyde House, Hyde, Cheshire, and the carved oak chairs with initials I.H.R.H. 1676 formerly in Hyde Hall, Denton, and handed down through each generation to myself. Also I wish to be retained the silver tea and coffee service with Hyde Crest formerly belonging to our Grandmother Ann Watson also the silver cream jug with her maiden name initials A.B. on also the silver cup won by our father William Henry Pinion. Also the Cabinet containing collection of old china, ivories and miniatures etc.
    Any goods and chattels not of an antique nature can be disposed of by my Trustees or removed to a vacant flat for the custodian at 64 St. Stephens Gardens W.2 when vacant possession of one can be obtained...."

    So much for the will.

    By the codicil the testator revoked the life estate of his sister, gave her an annuity, and continued:

    "Whereas by my will I have bequeathed my freehold Studio 22a Pembridge Villas in the County of London where 1 have lived since June 1907 and its contents and the pictures painted by myself, the collection of antique furniture, silver, porcelain and other objects of art to the Rational Trust along with the endowment of my Estate to maintain the same intact in the aforesaid Studio but REVOKE this bequest if the National Trust are not willing to accept and carry out these conditions and instead authorise my Executors The West-Minster Bank to appoint a Trust who will do so in a small way similar to that of the Soane Museum in Lincoln's Inn Fields".

    Then there is another passage which I need not read and he goes on:

    "Along with the pictures by myself I wish to be kept in my Studio all the portraits of Edward Hyde, First Earl of Clarendon by Lely and Hamnet Hyde formerly in Hyde Hall, Hyde, Cheshire My Grandfather and Grandmother James Lowe Watson and Ann Watson and Jonathan Benison".

    I construe this farrago as meaning that the entire contents of the studio, which housed all the articles referred to, are to be exhibited as a whole and, as he says, "to be kept intact in the Studio". The only exception is that articles "not of an antique nature" may be disposed of. I assume that the revocation of the sister's life interest accelerated the gift to the National Trust, which has refused the bequest, and that the authority to his executors to appoint a trust to carry out the bequest is in fact mandatory, the contrary not having been argued.

    In this court the Attorney-General did not seek to support the gift as being beneficial in a general sense to the public, but confined his plea to that head of charity which is characterised as the advancement of education. He argued both here and below that no evidence was receivable on this subject. A museum, he said, is a place which the law assumes to have an educational value and purpose. The cases on this subject to be found in Tudor are not very satisfactory. It would appear that a gift to an established museum is charitable: see British Museum Trustees v. White (2 Simons & Stuart page 594): in re Holburne (53 Law Times page 202) a gift to trustees of objects of art to form an art museum in Bath open to the public and a fund to endow it was held a valid charitable gift as being of public utility or benefit. No question was there raised as to the merit of the collection. It must have been agreed that such merit existed, for everyone assumed it, including the judge I conclude that a gift to found a public museum may be assumed to be charitable as of public utility if no one questions it. So in a case about religion such as the case about Joanna Southcott in 31 Beavan the court will assume without enquiry that the teaching may do some good if not shown to be subversive of morality. Where the object is to found a school the court will not study the methods of education provided that on the face of them they are proper: re Shaw (1952 Chancery page 163). A school for prostitutes or pickpockets would obviously fail. A case about education is re Hummeltenberg (1923 1 Chancery page 237) where the headnote reads thus:

    "To be valid a charitable bequest must be for the public benefit, and the trust must be capable of being administered and controlled by the court. The opinion of the donor of a gift or the creator of a trust that the gift or trust is for the public benefit does not make it so, the matter is one to be determined by the court on the evidence before it".

    The bequest in that case was connected with spiritualism and the point to which I draw attention is that the judge (the late Lord Russell of Killowen, then Mr. Justice Russell) said it must be decided on the evidence. There is a passage in his judgment as follows (page 242).

    "It was contended" (says he) "that the court was not the tribunal to determine whether a gift or trust was or was not a gift or a trust for the benefit of the public. It was said that the only judge of this was the donor of the gift or the creator of the trust. For this view reliance was placed on the views expressed by the Master of the Rolls and by some members of the Court of Appeal in Ireland in the case of In re Cranston. Reliance was also placed on a sentence in the judgment of Mr. Justice Chitty in In re Foveaux. So far as the views so expressed declare that the personal or private opinion of the judge is immaterial, I agree; but so far as they lay down or suggest that the donor of the gift or the creator of the trust is to determine whether the purpose is beneficial to the public, I respectfully disagree. If a testator by stating or indicating his view that a trust is beneficial to the public can establish that fact beyond question, trusts might be established in perpetuity for the promotion of all kinds of fantastic (though not unlawful) objects, of which the training of poodles to dance might be a mild example. In my opinion the question whether a gift is or may be operative for the public benefit is a question to be answered by the court by forming an opinion upon the evidence before it".

    Where a museum is concerned and the utility of the gift is brought in question it is, in my opinion, and herein I agree with the judge, essential to know at least something of the quality of the proposed exhibits in order to judge whether they will be conducive to the education of the public. So I think with a public library, such a place if found to be devoted entirely to works of pornography or of a corrupting nature, would not be allowable. Here it is suggested that education in the fine arts is the object. For myself a reading of the will leads me rather to the view that the testator's object was not to educate anyone, but to perpetuate his own name and the repute of his family, hence perhaps the direction that the custodian should be a blood relation of his. However that may be, there is a strong body of evidence here that as a means of education this collection is worthless. The testator's own paintings, of which there are over 50, are said by competent persons to be in an academic style and "atrociously bad" and the other pictures without exception worthless. Even the so-called Lely turns out to be a 20th century copy.

    Apart from pictures there is a haphazard assembly it does not merit the name collection, for no purpose emerges, no time nor style is illustrated of furniture and objects of so-called art about which expert opinion is unanimous that nothing beyond the third-rate is to be found. Indeed one of the experts expresses his surprise that so voracious a collector should not by hazard have picked up even one meritorious object. The most that a skilful cross-examination extracted from the expert witnesses was that there were a dozen chairs which might perhaps be acceptable to a minor provincial museum and perhaps another dozen not altogether worthless, but two dozen chairs do not make a museum and they must to accord with the will be exhibited stifled by a large number of absolutely worthless pictures and objects.

    It was said that this is a matter of taste, and de gustibus non est disputandum but here I agree with the judge that there is an accepted canon of taste on which the court must rely, for it has itself no judicial knowledge of such matters, and the unanimous verdict of the experts is as I have stated. The learned judge with great hesitation concluded that there was that scintilla of merit which was sufficient to save the rest. I find myself on the other side of the line. I can conceive of no useful object to be served in foisting upon the public this mass of junk. It has neither public utility nor educative value. I would hold that the testator's project ought not to be carried into affect and that his next-of-kin is entitled to the residue of his estate.

    LORD JUSTICE DAVIES: I agree with the conclusion reached by my Lord and by Lord Justice Russell whose judgment I have already had the advantage of reading.

    It is, in my opinion, clear that where necessary the court, in order to decide whether a valid charitable gift has been made in circumstances like the present, may, and indeed must, receive expert evidence on the question whether the display of the articles comprised in the gift is calculated to be for the advancement of education or otherwise of benefit to the public. For without such evidence the court would be unable to decide the question.

    The evidence in the present case was overwhelming that the objects comprised in this gift were to all intents and purposes worthless and that this exhibition could do nothing to advance education in aesthetics or history. No other benefit to the community was suggested by Mr. Clauson for the Attorney-General.

    Mr. Justice Wilberforce found himself just able to decide that the exhibition of the dozen or two dozen third-rate chairs together with a few of the other articles might have some educational value; and so he upheld the gift. But, as my Lord has pointed out, the testator's declared intention was that the whole collection should remain intact save for "any goods and chattels not of an antique nature". And if this were done, it is obvious that the chairs, such as they are, would be smothered by the intolerable deal of rubbish.

    I therefore agree that the gift is bad.

    LORD JUSTICE RUSSELL: The first question for consideration is whether Mr. Clauson for the Attorney-General is correct in contending that the judge should not have received the expert evidence of Mr. James and Mr. Edwards on the aesthetic merits of Mr. Pinion's collection of objects and its tendency if exhibited to the public to promote or advance education in aesthetic appreciation.

    Mr. Clauson argued that the court could not enquire into such matters: that an exhibition to the public of a collection of objects such as these must be assumed to have that tendency. I cannot agree.

    The mere fact that a person makes a gift of chattels to form a public museum cannot establish that its formation will have a tendency to advance education in aesthetic appreciation or in anything else. Enquiry must first be made, what are the chattels? Five hundred balls of string could not have that tendency. Nor is the enquiry ended on finding that the chattels are household furniture, carpets, light fittings, paintings, china and so forth: otherwise the contents of any dwelling-house in the land if displayed to the public could be said to have a tendency to advance education in aesthetic appreciation -which would I think be absurd. Some further judicial enquiry is needed directed to the quality of those chattels. The judge cannot conduct that enquiry on his own, unless the matter be so obvious as to call for no hesitation. He may be lacking in aesthetic appreciation. He is I consider entitled to the assistance of people expert in such matters, and to arrive at a conclusion based on such assistance. If the conclusion so based is that the quality of the articles is such that their exhibition to the public cannot be reasonably supposed to have the tendency mentioned, there is no charitable gift.

    Accordingly I would reject the submission that the judge should not have entertained the evidence of Mr. James and Mr. Edwards on the quality and the potential educational value of this gift.

    The next question is whether the judge was right, on the basis of the evidence, in arriving at the conclusion that this was a charitable gift as tending to promote or advance education in the field mentioned. This is a matter on which this court in this case is at no disadvantage in not having heard the oral evidence.

    His decision was based upon the assumption, putting it broadly, that a relatively small part of this collection could and would be selectively exhibited, the bulk being discreetly withheld from the public gaze. Was he correct in considering that such selective treatment would have complied with the terms of the disposition? If not it is quite plain, on the evidence, that by no stretch of the imagination could it be supposed or even conjectured that the collection would have any educational value, and it is clear that the judge would have so held.

    For my part, viewing the will and codicils as a whole, I think that such selective exhibition would not have complied with the expressed intentions of the testator. The will requires that his studio residence should be offered to the National Trust "with the pictures painted by myself and others, and my collection of antique furniture, to be kept intact and shown....", and then immediately allocates the income of his residuary estate to the upkeep and maintenance of the studio "and its contents". The only phrase which gives a free hand to the trustees is that "any goods and chattels not of an antique nature can be disposed of....or removed to a vacant flat for the custodian" of the collection at another address.

    In his first codicil he recites that he had bequeathed his studio residence "and its contents and the pictures painted by myself, the collection of antique furniture, silver, porcelain and other objects of art to the National Trust along with the endowment of my estate to maintain the same intact in the afore-said studio...."

    Now it is perfectly true that in a somewhat conversational excursus in his will the testator mentions certain items as being items "which may be considered to have sufficient merit for preservation", or as being "among the furniture I particularly wish to be retained along with my pictures in the studio", or as being items "I wish to be retained": and in the first codicil he says that "with the pictures by myself I wish to be kept in my studio" certain other portraits. But I do not regard these phrases as indicating that the trustees are authorised either to remove from the premises or to keep on the premises but hidden from the public eye either permanently or temporarily any of the contents of the house except such as might come within the phrase "any goods and chattels not of an antique nature". Indeed I incline to the view that that exception was not intended to extend to any of the items specifically mentioned, even though some might be goods and chattels not of an antique nature.

    For this reason I do not think that the selective exhibition which was essential to the judge's conclusion would be justified by the terms of the will, and it follows from the evidence that the gift cannot be supported as an educational charity.

    I would, however, for myself go further. The mainstay of the selective exhibition would have been about 12 chairs, described by one expert as third-rate antique furniture, and by the other as "such minor examples that one could say their educational value is practically nil". At the end of his evidence the idea of the selective exhibition was put by the judge to Mr. Edwards - who together with Mr. James had come prepared to consider the educational potential of the collection as a whole. The judge asked him:

    "Is there not some educational profit to be gained by perhaps ordinary members of the public coming in and seeing just this furniture? Leave out the junk for the moment....and suppose that the best bits are picked out and properly annotated and exhibited. Maybe you cannot answer that? (A) Yes, my Lord. I would not rule out the possibility in that case as put by your Lordship".

    On the basis of that evidence the judge said: "It seems to me that there is just enough, given proper and skilled exhibition, in the collection to make a contribution to the formation of artistic tastes to justify it": he referred of course to selective exhibition. He felt "obliged to find that the evidence did not establish with sufficient certainty that no recognisable benefit to the public is secured by the gift, in a field which the law regards as charitable and concluded that accordingly he must declare that the gift is charitable.

    Now the crucial question is whether the evidence did sufficiently establish that the gift would tend to advance or promote education in the relevant field. (If it did, then public benefit would follow, since there was from the nature of the suggested education no counterbalance of detriment). But I would not agree that the evidence did sufficiently establish a tendency to promote or advance education.

    One expert says in effect that the tendency would be "practically nil", and the other "would not rule out the possibility of some educational profit". No one was brought forward to do better than that.

    For my part I would not admit to the favoured ranks of charity, bearing the banner of education, a disposition with such negligible qualifications to bear it. Where the evidence leaves me with the virtual certainty on balance of probabilities that no member of the public will ever extract one iota of education from the disposition, I am prepared to march it in another direction, pressing into its hands a banner lettered "De minimis non curat lex".

    I would allow the appeal, and declare for an intestacy.

    (Appeal allowed. Order accordingly. Costs of all parties on common fund basis to be paid out of the estate)


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