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: Wilberforce J (27 June 1963) (decision appealed))

In Re Pinion (deceased)
Between: Westminster Bank Ltd
And: Pinion and Anor

Court:

Judges:
Wilberforce JHarman LJ
Davies 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

Hearing date: 8 March, 22 May, 27 June 1963, 11-12 February 1964
Judgment date: 28 February 1964

---

Judgment by:
Wilberforce J (27 June 1963) (decision appealed)

A testator gave his studio and the contents, which included paintings by himself and others, furniture, china, glass and bric-a-brac, to trustees and directed that his residuary estate be used to endow the studio as a museum for the display of his collection.

On a summons to determine whether a valid charitable trust had been created, art experts gave evidence that the studio was squalid and that the collection had no educational value whatever and Wilberforce J. held, first, that when determining whether a gift which was clearly educational was a valid charitable gift, it was not relevant to evaluate the contribution made, but that did not prevent the court from ascertaining, if necessary by evidence, whether a gift had any educational tendency, and that in the present case such evidence must be received; second, that the gift, which included some objects of historical interest and of artistic interest, though slight, might be of public benefit and was, therefore, a valid charitable bequest. The next-of-kin of the testator appealed:-

Held, (1) that on the true construction of the will and codicils the testator's intention was that the entire contents of the studio should be exhibited as a whole, the only exception being that articles not of an antique nature might be disposed of so that the selective exhibition, which was essential to the judge's conclusion, was not justified by the terms of the will (post, pp. 104G - 105A, 108A-B, 109D-F, 110B).

(2) That where the validity of a gift to establish a museum was concerned and the utility of the gift was brought in question, it was essential for the court to know something of the quality and artistic or aesthetic merit of the proposed exhibits in order to judge whether they would be conducive to the education of the public, and for that purpose to hear expert evidence: while the quality and artistic or aesthetic merit of the proposed collection of exhibits was a matter of taste, and tastes differed, there was an accepted canon of taste on which the court had to rely, for it had no judicial knowledge of such matters itself (post, pp. 106E, 107C-E and F, 108C-G).

(3) That the evidence was overwhelming that the collection of proposed exhibits was worthless as a means of education, and no useful purpose could be served by foisting on the public a "mass of junk" and that, therefore, the gifts did not constitute a valid charitable trust (post, pp. 106E - 107C and G, 110G)

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; and In re Hummmeltenberg [1923] 1 Ch. 237; 39 T.L.R. 203 considered.

Judgment of Wilberforce J., post, p. 92; [1963] 3 W.L.R. 778; [1963] 2 All E.R. 1049 reversed.

ADJOURNED SUMMONS.

By his will dated February 22, 1956, and drafted by himself, the testator, Arthur Watson Hyde Pinion, gave some legacies and provided:

"To my sister Edith May Pinion to receive all the income from my real and personal estate for her life and afterwards tomy trustees to offer my freehold studio 22A Pembridge Villas, London, W.11 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 relation of mine for 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 relatives 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 of by the National Trust. Also my trustees to appoint some other body or society to carry out this 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 for four years' tuition, the paintings done there 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 Hospitalfield, and of old Mrs. Munro of the Abbey House, Arbroath, and the portrait I painted of George Herbert Hyde Villiers, Earl of Clarendon, K.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 Hall, Hyde, Cheshire, and the carved oak chair 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 it. Also the silver cup won by our father William Henry Pinion. Also the cabinet containing collection of old china, ivories, 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."

The testator appointed the Westminster Bank and his sister, Edith May Pinion, trustees of his will and he made a first codicil to his will on July 28, 1961, in which, after revoking the conveyance of his whole estate to his sister, Edith May Pinion, for her life and giving her an annuity, he said:

"Whereas by my will I have bequeathed my freehold studio 22A Pembridge Villas in the County of London where I have lived since June, 1907 and its contents of 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 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 Westminster 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 after a provision relating to an annuity, he continued:

"Along with the pictures painted by myself I wish to be kept in my studio are 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".

The testator died on August 30, 1961. Edith May Pinion renounced probate and the will was proved by the bank alone. The studio at 22A Pembridge Villas was in the ownership of the testator at his death. It consisted of a single-storey erection originally put up as an addition to No. 22. It was in itself undistinguished and shabby, but was valued for probate at £10,000 on the basis of the development value of the site, which covered 3,150 square feet. The contents of the studio were valued for probate at £742. The contents were objects of a miscellaneous character which could roughly be classified as follows:

(a)

paintings by the testator himself. There were over 50 of these, the majority being portraits, but there were some small landscapes and two nude sketches;

(b)

other paintings, including some originals of the Stuart period, and a number of portraits or copy portraits of members of the Hyde family, with which the testator had connections, including one of Edward Hyde, first Earl of Clarendon, ascribed by the testator in his will to Lely;

(c)

furniture. There were two articles valued at £50 or over, an eighteenth century Italian commode and a Louis XV style commode. A number of pieces were described as "Louis XIV style," "Stuart style," "Chippendale style" and "Hepplewhite style." There were the three chairs mentioned in the will described as three chairs of mid-eighteenth century design (no separate value was ascribed to them) and there were some articles described as of the seventeenth century;

(d)

bric-a-brac, miniatures and curios, including objects of Chinese, Japanese, Burmese, Indian and other origin and some rugs;

(e)

china and glass, of which those contained in a cabinet were described as "mostly damaged." Also there was the silver tea and coffee service and the silver cream jug and cup mentioned in the will.

The bank offered the studio and its contents to the National Trust, as directed by the will, but the trust did not accept the bequest.

The bank as trustees took out a summons for determination of the question whether the bequest set up a valid charitable trust. Evidence was given on March 8, 1963, by affidavit by F.R. Perry, an auctioneer and valuer employed by Phillips, Son and Neale, that the collection was of no interest or benefit to the public. He said that only two of the items in the studio would realise more than £50 each in a sale. He also said:

"The whole collection is far inferior to a collection such as one might find in an antique dealer's show room, as the few genuine antique items in the collection have been so neglected as to render them of comparatively small value. In my opinion the testator's collection would be of no interest or benefit to the public, as a collection, whether housed in its existing surroundings or exhibited in a museum or other place to which the public has resort, as it is but a haphazard collection covering no particular period or style. I cannot think of any museum or similar institution which would be willing to accept such a collection, the quality of the items in which must inevitably be inferior to the articles already on exhibition in such museum or institution. The cost of exhibiting the testator's collection in its present surroundings would be out of all proportion to any benefit it might confer on the public."

On that evidence counsel for the next-of-kin submitted that the gift was not charitable because it lacked the necessary element of benefit to the public, but Wilberforce J. decided that the evidence of a valuer for probate was insufficient and he adjourned the summons for expert evidence as to the artistic or educational value of the collection. Counsel for the Attorney-General, while formally objecting that evidence to that effect would be inadmissible, did not oppose the adjournment. At the resumed hearing on May 22, 1963, two experts, Philip Brutton James, C.B.E., and Herbert Cecil R. Edwards, C.B.E., gave evidence to the effect that the testator's collection had no educational value whatever, which evidence the judge received de bene esse : The following account of their evidence is taken from the judgment of Wilberforce J. ^[F1]

James said that he had inspected the collection and that

"the items [of furniture] in the collection could not have been of a lower quality."

He also said:

"I have a wide experience and knowledge of the contents of museums and art galleries throughout this country, and in my opinion no item in that collection except the few pieces of furniture would be acceptable to any such museum or art gallery. I am not surprised that the National Trust has declined the offer of this collection. In particular the pictures and china are quite worthless and the suggestion that they should be shown in public in London or anywhere else does not bear serious consideration. In my view, the collection has no educational value whatsoever. I would have expected that a person with the testator's voracious appetite for bric-a-brac would occasionally have acquired some pieces of mediocre quality, but that has not proved to be the case."

In his second affidavit he said he inspected the silver and also the studio. As to the silver, he said:

"It is a perfect example of the tastelessness and ugliness of Victorian silver of this date"

which in fact was 1895, he then said:

"the testator's studio is extremely squalid and in very poor surroundings."

Edwards said:

"The pictures consist of the testator's own works, nudes and portraits, which by any recognised standard can only be described as atrociously bad, and also copies after late Stuart portrait painters with a few coeval but negligible works of the same kind."

He then deals with their value and continues:

"The so-called Lely is not in my opinion by that master. Among the furniture there are a dozen or so genuine English and Continental pieces of the 17th and 18th centuries which, perhaps, might be acceptable as a gift to a minor provincial museum - notably, three 18th century English single chairs covered with contemporary embroidery. The frames, however, of these chairs are of distinctly mediocre quality. The remainder of the furniture is either spurious or of low quality or very minor examples of provincial craftsmanship. The items which may be regarded in any way as desirable would not do more than provide the miscellaneous contents of a single small room. I failed to find among the china and bric-a-brac one specimen of a quality above what is commonly described as 'junk.'"

He concluded:

"In my view the proposal that this collection should form a trust is really quite fantastic. I am firmly of opinion that the bequest regarded as an entity cannot be said to possess any educational value whatever."

In his second affidavit he dealt with the silver in the same way as James and also said that the condition of the studio was appalling and that the local authority was likely to condemn it.

The qualifications of both those experts, which were set out in the affidavit, were undoubted. Both experts were cross examined on their evidence, but no positive evidence was called to support the merits of the collection. This expert evidence, concerning the majority of the objects belonging to the testator and the collection as a whole, was unchallenged, but, as regards the testator's own paintings, it was said that no expert opinion could be more than an opinion, and a fallible one at that, and that the rejects of one age were the masterpieces of another.

The example was given of Vincent Van Gogh, who only sold one of his paintings during his life and for only 400 francs, but any one of whose paintings might now fetch £40,000. While conceding that judgment as to artistic merit was not infallible, the two expert witnesses said that there was such a thing as a consensus of informed opinion, that the case of Van Gogh was different in that he was a revolutionary artist ahead of his time, but that even in his lifetime many informed people considered him a genius. Edwards said that the testator was in a different category, that he was an inconceivably bad academic artist and that all experts would agree that his paintings were valueless.

Referring to the few pieces of furniture which might be acceptable to a minor museum, Edwards said that they were not sufficient taken alone to constitute a museum, and that for an exhibition not less than 50 pieces would be required. Edwards said that to treat 12 pieces as worth exhibiting would be stretching it very far. There might, on a liberal assessment, be another dozen of provincial craftsmanship but many of these had been tampered with. He could not say with any confidence that any one piece was of metropolitanorigin. He could not conceive of anyone going to be educated by 12 pieces of third-rate furniture. But he, like James, had been directing his evidence to the merits of the collection as a whole, and, when asked whether some of the best objects could not be picked out, did not rule out the possibility of some instruction being conveyed if these were properly exhibited and labelled. Finally, James was asked to consider the possibility that further items might be added and said that objects of any worth would be ruined by "juxtaposition with this junk."

The Attorney-General, objecting to the admissibility of the evidence, submitted that the gift was on the face of it of an educational character, and being within a recognised category of charitable gifts, the court could not set itself up as the judge of the value of the education provided, particularly so because the gift was in the field of fine arts in which objective judgments were unattainable.

A. J. Balcombe or the plaintiff trustee.

G. T. Hesketh for the first defendant, the next-of-kin of the testator, and entitled on intestacy.

B. J. H. Clauson for the Attorney-General.

The following case was cited in argument, in addition to those referred to in the judgment: Oppenheim v. Tobacco Securities Trust Co. Ltd. ^[F2]

Cur. adv. vult.

June 27, 1963. Wilberforce J. read the following judgment. The question raised in this originating summons is, briefly, whether a gift in the will and codicil of Arthur Watson Hyde Pinion, the purpose of which is to establish a museum for the permanent exhibition of the testator's own paintings and other objects, is a valid charitable gift.

[His Lordship stated the facts, referred to the will and codicil, and continued:] The summons, raising the question as to the validity of the bequest, first came before me on March 8, 1963. There was read on that occasion an affidavit by F. R. Perry, an auctioneer and valuer employed by Phillips, Son and Neale.

[His Lordship then referred to the evidence of F. R. Perry set out above and continued:] On this evidence it was urged upon me by counsel for the first defendant, who is the testator's sister and next-of-kin, that I should come to the conclusion that the gift was not charitable, since it was lacking the necessary element of benefit to the public. It seemed to me, however, that if I were to consider anargument of this kind, it would be necessary for me to have a wider range of expert evidence as to the artistic or educational value of the collection than the evidence of a valuer for probate, and I was, therefore, asked to adjourn this case in order that such evidence should be sought. Counsel for the Attorney-General, while formally objecting that evidence to this effect would be inadmissible, did not oppose the adjournment. On the matter returning to the court on May 22, 1963, further affidavits were filed by two experts of undoubted authority, Philip Brutton James, C.B.E., and Herbert Cecil R. Edwards, C.B.E. Both were emphatically of the opinion that the collection, including the testator's own paintings, had no educational value whatever and that they could not constitute a museum or permanent exhibition.

The evidence having been received de bene esse , I have first to decide whether I can take it into account. Mr. Clauson, for the Attorney-General, objects to the reception of any evidence bearing upon the artistic or educational worth of the objects included in the bequest. He submits that the gift is, on the face of it, of an educational character, and that is that: the gift is within a recognised category of charitable gifts and the court cannot set itself up as a judge of the value of the education provided. This is particularly the case, he says, because this gift is in the field of the arts, perhaps I should say the fine arts, in which objective judgments are unattainable. It is no part, he submits, of the court's function in deciding whether a gift of artistic objects is charitable to pronounce judgments of aesthetic value upon what the testator has given. This argument, with respect, appears to me to include a petitio principii. I would accept that once it can be established, on a reading of the gift, that it is for genuinely educational purposes, the inquiry need not be carried any further. As Vaisey J. puts it:

"The court ought not to weigh the respective merits of particular educational methods":

In re Shaw's Will Trusts. ^[F3] But the whole question here is whether the gift has an educational character: that question cannot be answered by a mere reading of the will even if one then proceeds to a perusal of a catalogue of the objects given, unless it is the law that a gift of any articles for exhibition is automatically educational. Prima facie, educational such a gift may be, but then it must be legitimate to resort to evidence to refute or confirm this prima facie assumption.

The Attorney-General seeks, as I have said, to uphold the gift as one for educational purposes, but it is possible to consider it in another way, namely, whether it falls within Lord Macnaghten's fourth category ^[F4] as a gift for purposes beneficial to the public. I note that a gift to or for a museum is so classified in Halsbury, Laws of England, 3rd ed. (1953), Vol. 4, p. 229, and probably also in Tudor on Charities, 5th ed. (1929), p. 39. Regarding it in this way, I would accept the proposition - and I adopt here again Vaisey J.'s language in In re Shaw's Will Trusts ^[F5] - that

"there are many cases ... where the purpose is so obviously beneficial to the community that to ask for evidence would be really quite absurd."

But is this such a case? In my judgment, it is not. One may contrast the present gift with part of the gift in In re Shaw, ^[F6] which was for

"The making of grants ... to any ... body ... having for its object the bringing of the masterpieces of fine art within the reach of the people of Ireland."

That carries immediate conviction; the present gift imparts immediate doubt.

A number of authorities were referred to on this point; they fall into two groups. The first establishes that whether a gift has the character of being for the public benefit in a manner which the law regards as charitable is to be determined by the court on the facts of each case, that is, with the aid of relevant evidence: In re Hummeltenberg, ^[F7] National Anti-Vivisection Society v. Inland Revenue Commissioners. ^[F8] This general principle is now beyond question.

The second group was invoked by Mr. Clauson to show that although that may be true generally, in the particular case of gifts which, in a broad sense, are for education in the field of art, evidence cannot be considered, unless, of course, it is sought to show that the gift is contra bonos mores or against public policy. I proceed to examine these cases.

The first, and that most relied on, is In re Holburne. ^[F9] The headnote reads as follows:

"A testatrix by her will bequeathed a collection of pictures, china, plate, books, and articles of vertu to trustees to form an art museum in Bath, to be called the H. Museum, and bequeathed to the trustees a sum of money to be held for the perpetual protection, maintenance, and endowment of the collection. It appeared that the testatrix intended the museum to be kept in Bath as a public institution for the benefit of the inhabitants of the city and the public generally. Held, that the gift was a valid gift for charitable purposes."

The issues in the case were first whether the gift was obnoxious to the Mortmain Act as involving a purchase of land, and, second, whether the gift was for public purposes only, or whether the museum was to be of a private character. It was not apparently disputed that the collection was of such merit that its preservation and exhibition would be forthe public benefit: it was evidently a substantial one which had been assembled by Sir Thomas Holburne and may have been well known locally. The decision upheld the gift as charitable, not on the ground that it was educational but because it was for the benefit of the inhabitants of Bath.

The next is In re Spence, ^[F10] where there was one gift of a collection of arms and antiques and another gift of money to erect and provide a public hall in which the arms and antiques were to be exhibited. The main portion of the judgment of Luxmoore J. is concerned with the question whether the gift for the hall was good and, having so decided, the judge said: ^[F11]

"With regard to the gift of the collection of arms and antiques somewhat different considerations apply. Having regard to my declaration respecting the public hall, it is probable that no difficulty will arise. It is necessary, however, to determine whether it is a good charitable gift. The object of the gift is to allow the collection to be inspected by the public. This is an educational object and is therefore charitable."

There is no indication in the report of the nature of the collection, nor whether there was evidence of its educational value, but the judge must have found or assumed that it had such value, unless (which seems unlikely) he was intending to say that a gift of anything to be inspected by the public is educational.

Then there is the Royal Choral Society v. Inland Revenue Commissioners ^[F12] case. The well-known judgment of Lord Greene M.R. establishes that education is not limited to teaching or inconsistent with pleasure and that the development of artistic taste is a valuable objective of education. There are many references in the report to the high standard of the society's work and the Master of the Rolls evidently thought that this was relevant, and indeed Sir Hugh Allen gave evidence that the performances of the society were in his view a valuable element in the musical education of the country. That would seem to show that such evidence is relevant.

That was followed by In re Delius, decd., ^[F13] where the trust was for the advancement of the musical works of that composer. The headnote records that it was not in dispute that the standard of Delius's works was so high that the question of his adequacy as a composer did not arise. Roxburgh J. said: ^[F14]

"I do not find it necessary to consider what the position might be if the trusts were for the promotion of the works of some inadequate composer. It has been suggested that perhaps I should have no option but to give effect even to such a trust. I do not know, but I need not investigate that problem, because counsel who have argued before me have been unanimous in the view that the standard of Delius's work is so high that that question does not arise in the present case."

That case at least shows that evidence as to quality may be received and leaves open the question what would be the result if it could be shown that the work to be encouraged was worthless.

Last, in a different field, I was referred to Thornton v. Howe, ^[F15] the case on the writings of Joanna Southcote. That case is comparable, in the field of religion, with the case, in the field of education, of In re Shaw's Will Trusts, ^[F16] from which I have already quoted. Once a gift is clearly seen to be in the religious or educational sphere, the court cannot discriminate between religions or methods of education. It does not prevent the court from ascertaining, if necessary by evidence, whether the gift has any educational tendency.

In my judgment, therefore, the court can, and indeed must, in this case receive evidence to support or negative the existence in this gift of educational value or public benefit. No doubt it must be cautious in the receipt of such evidence: as Lord Simonds put it "the court will not be astute ... to defeat on doubtful evidence the avowed benevolent intention of a donor": National Anti-Vivisection Society v. Inland Revenue Commissioners. ^[F17] Particularly where it is dealing with a subject matter in the sphere of art or aesthetics it must allow for the difficulty there is in making any secure objective judgment, for changes in fashion and in taste. It should recognise that the formation of an educated taste is a complex process, differing greatly as between individuals. It must allow for the differences - very great differences - of education and taste to be found among the members of the public who are likely to see the bequest. Nevertheless, making all these necessary allowances, there must come a point when the court, on the evidence, is impelled to say that no sufficient element of benefit to the public is shown to justify the maintenance in perpetuity of the subject matter given. A strong and a clear case has to be made before such a conclusion can be reached: Is this case sufficiently strong and clear? I now proceed to consider the evidence.

I have already referred to the affidavit of the auctioneer and valuer and I now examine the evidence of James and Edwards.

[His Lordship referred to the evidence of James and of Edwards, set out above, said that their qualifications were undoubted, and continued:] Where, then, does that evidence lead? I was invited to consider first the possibility that the collection might be maintained as a whole, which indeed was, substantially, the testator's intention. The argument of the next-of-kin as to this was that such few articles of merit as there are would be so completely submerged in the sea of "junk" that nobody could derive any profit from seeing it. One may accept this, but I do not think that maintenance in toto is the only course open to the trustees. They have power to dispose of, or to remove to the custodian's flat, any articles "not of an antique nature," which evidently gives them a fairly wide discretion.

I think, therefore, that it would be fair to assume that the testator's wishes would be carried out by exhibiting the best pieces of furniture - perhaps even some furniture less good than this; the Stuart period paintings; some of the better copies of paintings and those connected with the Hyde family, a family, after all, with a place in history. The testator's own compositions could hardly be excluded, but it might be legitimate not to hang them all at one time. All these objects, it might be assumed, would be properly labelled in such a way as to convey their date and place of origin and any historical affiliations. An even more favourable character can be imparted to the collection if one assumes that the trustees were from time to time to purchase additional items of merit, but I do not think that it is legitimate to make this assumption, not only because the will contains no power to do this, but because the evidence does not show that there will be enough money in hand after providing for the, necessarily considerable, administrative expenses.

Taking, then, the middle view of what the trustees are likely to do, ought I to hold that the element of benefit to the public, educational or otherwise, is so wholly absent that the gift is void? Or is this rather a case of possibly a disproportionate endowment to achieve a small benefit, but still a case where there is a small benefit to be anticipated for the public? With considerable hesitation, I think that this is a case of the latter class. It seems to me that there is just enough, given proper and skilled exhibition, in the collection to make a contribution to the formationof artistic taste to justify it. It may do no more than interest those who see it in styles of furniture and portraiture and encourage them to go further and to look for better specimens both of furniture and painting in, say, the Victoria and Albert or the National Portrait Gallery - this irrespective of whether they might learn something from the testator's own struggles with the pictorial medium. The contribution will, no doubt, be a small one; it may even be out of proportion to the resources locked upin preserving it, but I do not think that the court can measure the relation of benefit to expenditure and say that the former is, or is not, a justified use of the latter. Once it is found, as I feel obliged to find, that the evidence does 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, the court must declare, as I do, that the gift is charitable and valid.

To reach this conclusion does not involve a disregard of the experts' evidence. I feel a considerable sympathy with them in their refusal to accept the testator's gift as measuring up to their standards of what a museum should be. I have little doubt thatthe studio, when arranged by the trustees, even in the most attractive and selective manner, will not nearly qualify to be called a "museum" as James and Edwards understand that word, but I think that the standard for a valid charitable gift is not so high as that. I cannot say that to provide a room, with a number of objects possessing some degree of historical and artistic interest, open to the public, will not be a benefit to the public: I think that it may, and I uphold the gift.

Declaration accordingly. Costs of the plaintiff on trustee basis and other parties on common fund basis from the estate.

The testator's sister and sole next-of-kin, Edith May Pinion, appealed on the grounds, first, that there was no evidence to support the finding that the gifts created a valid charitable trust, second, that the judge had misdirected himself in holding that if the evidence did not establish with sufficient certainty that no recognisable benefit to the public was secured by the gifts, in at field which the law regarded as charitable, he was bound to declare that the gifts were charitable and valid and, third, that the judge's order was against the weight of evidence.

The Attorney-General sought to uphold the judgment on the ground, additional to those contained in the judgment, that the gifts contained in the will and codicils,

(a)

of the freehold studio with its contents for the establishment of a museum and

(b)

of the residuary estate as an endowment for the maintenance of the museum being,

on the true construction of the will and codicils, on their face of a charitable nature, and there being before the court no evidence that the display of the contents of the studio would be contrary to public policy and morality, the judge was bound in law to hold that the gifts created a valid charitable trust irrespective of any evidence as to the quality of the contents of the studio.

H. E. Francis Q.C. and G. T. Hesketh for the first defendant, the next-of-kin of the testator entitled on intestacy. The gift, if it is to be held to be of a charitable nature, must be brought within either category II or category IV of the four main categories set out by Lord Macnaghten in Income Tax Special Commissioners v. Pemsel, ^[F18] i.e., it must be shown either that the gift is for the advancement of education or that it is for al purpose beneficial to the community, not falling within the other three categories, namely, the relief of poverty, the advancement of education or the advancement of religion. If it is claimed to be a trust beneficial to the community under category IV it must be shown that the trust will necessarily result in a benefit to the community, it is not sufficient to show that it may do so: see per Russell L.J. in In re Grove-Grady. ^[F19]

Here the evidence goes no further than to show that after searching cross-examination one expert witness was prepared grudgingly to concede that if a few of the best articles from the collection were selected, separated from the rest and set out to advantage, he would not exclude the possibility that the public might derive some benefit therefrom. That is not enough. As to the advancement of education, it should be noted that the testator himself said nothing whatever abouteducation; his dominating purpose was the preservation of his own collection. The only discretion given to the trustees to dispose of items of the collection relates to "goods and chattels not of an antique nature"; if anything is antique there is no discretion. The trustees could not dispose of anything which the testator specifically requested them to retain, all of which expert evidence describes as "junk." The upshot of the matter is that there is a trust to retain and use the studio and exhibit its contents in their entirety. The will uses the words "in the event of the refusal of the National Trust to accept the conditions," and it is submitted that "the conditions" there referred to means the duty to keep the studio and its contents intact.

The court must hear evidence as to the quality of the collection, and form a qualitative judgment thereon. There is nothing on the face of the will to suggest that the gift was for the advancement of education. There may be cases under category IV where, though the purpose is not educational, education may result as a by-product. A gift to create a museum is regarded as coming under that category.

[RUSSELL L.J. If a thing is educational will not it be assumed that it will be of benefit to the public?]

A school to teach people how to be pickpockets or prostitutes would be educational in a sense, but not beneficial to the public, since it would be contrary to public policy and morality. In the first three categories, namely, relief of poverty, advancement of education, or advancement of religion there would be a presumption that the gift was beneficial.

This is not a trust for the advancement of education. One must look at the will to find what the testator's real intention was. Here he said nothing about education or the prospect of students deriving benefit by visiting the collection; it is plain that his real purpose was solely to preserve his own collection. It is conceded that the cultivation or improvement of taste in the cultural field is an educational object. Lord Greene said that education of artistic taste is one of the most important things for a human being, and such education may be accomplished by exhibiting works of art, by performing works of drama or music or by publishing books; but the works exhibited or performed must be of a certain quality, one cannot educate by exhibiting works of bad quality.

[HARMAN L.J. Cannot you educate people what not to like as well as what to like?]

In the hands of a tutor it may be useful to have bad examples to refer to as illustrations, but merely to exhibit them would not do. The public would tend to think that because the exhibition was thrown open to the public the works exhibited were to be admired. Every bad artist, writer or composer would then be able to inflict his works upon the public, provided that he had the necessary money. See per Lord Greene M.R. in Royal Choral Society v. Inland Revenue Commissioners. ^[F20] That case shows that the cultivation of artistic taste, or the appreciation of music or literature is an educational object, but it should be noted that the works there being performed were works of the highest quality and it is clear that Lord Greene M.R. was giving importance to that fact. Further, it must be shown, not that the gift might conceivably, if a few objects of artistic merit were selected, have some educational properties, but that as a whole a necessary and natural result will be to improve or cultivate the artistic taste of the public. Benefit to the public is indeed an overriding consideration in each of the four categories.

See Inland Revenue Commissioners v. Baddeley; ^[F21] Oppenheim v. Tobacco Securities Trust Co., Ltd; ^[F22] and National Anti-vivisection Society v. Inland Revenue Commissioners, ^[F23] per Lord Simonds. The overall effect of the benefits and disadvantages must be looked at; the amount of money locked up might be quite disproportionate to the benefit achieved.

[RUSSELL L.J. The public's interest lies in the fact that charities have fiscal advantages, not that money is being wasted by individuals.]

[HARMAN L.J. The benefit might be so small that it ought to be disregarded as being de minimis .]

If it be said that the selected exhibition suggested by the judge would do no harm, the answer is that equally it would do no good. It is not possible here, because of the obligation to exhibit the entire contents of the studio, to devise any form of exhibition which would confer any benefit on the public. Everything has to be exhibited, unless it can be described as "not of an antique nature"; but even the discretion to dispose of such articles as were "not antique" seems to be confined to the furniture and bric-a-brac, and does not apply to the paintings. A selected exhibition would not be in conformity with the terms of the will.

[In re Wedgwood ^[F24] was also referred to.]

B. J. H. Clauson or the Attorney-General. The judgment below, which was in favour of the gift being charitable, should be upheld, so that the benefit to the public is not lost. This is virtually an appeal against a finding of fact. The defendants' grounds of appeal are

(a)

that the judge went wrong on the evidence and

(b)

wrongly felt bound to hold that the gift was charitable, if the evidence did not clearly establish that no recognisable benefit to the public would be achieved by the gift. In the court below the Attorney-General sought to support the gift solely on the ground that it was for the advancement of education; it is not sought to support it on the additional grounds that it is for the establishment of a museum and as such can be regarded as charitable under the fourth category, i.e., as one beneficial to the community. The judge was satisfied on the evidence that it was a valid charitable trust.

This is an educational charity. The testator intended that his collection should be exhibited to the public - the majority of the works in the collection were not his own works. He clearly intended them to form a museum. It is true that there is no word of education, but neither is there a word of pleasure. Royal Choral Society v. Inland Revenue Commissioners ^[F25] shows that what might at first sight be regarded as for pleasure can be educational: see per Lord Greene M.R. The testator has sought to provide a museum, and a museum is prima facie educational. The fact that he does not say that the gift is for education is irrelevant, the important point is that in fact it will educate the public, or tend to do so.

[RUSSELL L.J. A museum is only educational if its contents have some quality historical or artistic.]

That raises the second question, namely, what sort of evidence can be given. If it be alleged that the contents of a proposed museum are "trash," the difficulty is to know what evidence can be given. The court cannot set itself up as a judge of aesthetic or educationalqualities. A house filled with sixteenth-century furniture, cheap in its own day, would today be acceptable as a museum. Obviously, of course, it is possible to give evidence of the quality of the contents if they are immoral or likely to corrupt the public; but the judge went wrong in considering and admitting evidence as to quality in general. A museum is assumed to have an educational value. Similarly, as in Thornton v. Howe, ^[F26] the case about the works of Joanna Southcote, the court will not weigh one religion against another but will assume that the teaching will do some good, provided that it is shown not to be subversive of morality. Similarly, where the object is to found a school, the court will not study the methods of education, provided that they are proper on their face: see In re Shaw's Will Trusts. ^[F27]

The evidence here was sufficient to justify the judge's finding of fact. The court is asked to weigh the evidence of two experts as to the quality of the collection, but the court is totally unable to form a view on such a matter. It is a qustion of taste, and taste varies from year to year. If Van Gogh had left a cottage filled with his pictures for exhibition to the public everyone at the time would have said that they were "trash," but that view would look remarkably foolish now. But the difficulty does not arise, since a museum is prima facie educational. See Thompson v. Shakespeare. ^[F28]

In re Delius ^[F29] is authority for the proposition that motive does not vitiate the charitable nature of a gift. Here the purpose of the will was to allow the public to have the full benefit of seeing the collection, the majority of which was not the testator's own work. His motive was not pure self-glorification. In re Spence ^[F30] shows that a museum is prima facie charitable. Where there is a gift for the display of objects for the public it is prima facie educational and therefore charitable.

All the court can do is to look at the words of the gift and decide on those words; it cannot inquire into the quality of the objects intended for display. It must, of course, be satisfied that the trust is not contrary to public policy, but once it is satisfied that a gift is potentially educational that is the end of the matter, and the gift must be regarded as charitable. But even if these submissions be wrong, the judge was, nevertheless, quite justified, on the evidence, in coming to the conclusion he did. It is submitted that the " de minimis " rule does not apply to charities. Once it is shown that there is a scintilla of educational merit in the gift it is charitable. The fact that a charity is thoroughly wasteful and overendowed does not matter. National Ante-vivisection Society v. Inland Revenue Commissioners, ^[F31] per Lord Simonds, shows that one must weigh the anti-public element of a gift. It cannot be said that it is greatly to the public disadvantage that the endowment fund should in this case be tied up in the upkeep of the museum. The passage in Lord Simonds' judgment is no authority for the proposition that the de minimis rule applies to charities. Here the evidence shows that there is a minimum of educational value to be derived and no evidence to the contrary. Even a display of "junk" cannot be said to have a deleterious effect. This appeal should be dismissed.

Francis Q.C. in reply. The court has to determine whether a trust is for the advancement of education or religion. The court must have evidence on which it can base its decision.

This is not a trust for the advancement of education, otherwise a gift of any building with its contents might be classed as a museum, provided that it was incumbent upon the trustees to throw it open to the public. National Anti-Vivisection Society v. Inland Revenue Commissioners ^[F32] is a decision in the appellant's favour.

If a selective exhibition were adopted in this case it may be that there would be an element of education, but that would not be within the terms of the will. What the court must find is, not that there is a possibility that someone will derive education or benefit from seeing the display, but that benefit would be the natural and necessary consequence. The evidence of the experts does not go as far as this. Once the court comes to the conclusion that substantially the whole collection must be displayed it cannot shut its eyes to the effect on the public of displaying so much "junk."

Cur. adv. vult.

February 28, 1964. The following judgments were read.