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

Judges: Wilberforce J
Harman 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

Decision by:
Russell LJ

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 the witnesses James and Edwards on the aesthetic merits of the testator'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 inquire 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. Inquiry must first be made, what are the chattels? Five hundred balls of string could not have that tendency. Nor is the inquiry 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 inquiry is needed directed to the quality of those chattels. The judge cannot conduct that inquiry 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 the witnesses James and 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 aforesaid 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 the witness Edwards - who together with the witness 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: ^[F41]

"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 taste to justify it":

he referred, of course, to selective exhibition. He felt ^[F42]

"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.

Costs of all parties on common fund basis to be paid out of the estate.

Solicitors: Scadding & Bodkin; Treasury Solicitor.