In Re Pinion (deceased); Westminster Bank Ltd v Pinion and Anor
[1965] Ch. 85[1962] P. No. 3101.]
[1964] 1 All ER 890
(Judgment by: Harman LJ)
In Re Pinion (deceased)
Between: Westminster Bank Ltd
And: Pinion and Anor
Judges:
Wilberforce J
Harman LJDavies LJ
Russell LJ
Subject References:
CHARITY
EDUCATION
ART
Gift to National Trust of studio with contents intact as a museum
Admissibility of expert evidence on aesthetic values to determine whether gift of educational character or for public benefit
Whether valid charitable gift
Standard of values and taste applicable
Case References:
British Museum Trustees v. White - (1826) 2 Sim. & Stu. 594
In re Holburne, Coates v. MacKillop - (1885) 53 L.T. 212; 1 T.L.R. 517
In re Hummmeltenberg - [1923] 1 Ch. 237; 39 T.L.R. 203
Judgment date: 28 February 1964
Judgment by:
Harman LJ
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 neat 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. [His Lordship then read those passages of the will and codicils set out in the statement of facts, referred to the fact that the testator had revoked the life estate of his sister, had given her an annuity, and continued:] 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 on Charities, 5th edition (1929), are not very satisfactory. It would appear that a gift to an established museum is charitable: see British Museum Trustees v. White. [F33] In In re Holburne, [F34] 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 Thornton v. Howe, [F35] the case about Joanna Southcote, the court will assume without inquiry 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: In re Shaw's Will Trusts. [F36] A school for prostitutes or pickpockets would obviously fail. A case about education is In re Hummeltenberg, [F37] where the headnote reads:
"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 cage wag connected with spiritualism and the point to which I draw attention is that the judge (the late Lord Russell of Killowen, then Russell J.) said it must be decided on the evidence. There is a passage in his judgment as follows: [F38]
"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 [Porter M.R.] and by some members of the Court of Appeal in Ireland in In re Cranston. [F39] Reliance was also placed on a sentence in the judgment of Chitty J. in In re Foveaux. [F40]
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 kindsof 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 thateducation 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 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 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 effect and that his next-of-kin is entitled to the residue of his estate.