Kings v Bultitude & Anor [2010] EWHC 1795 (Ch)

[2010] EWHC 1795 (Ch)Case No HC09C01561
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2010
Before
MRS JUSTICE PROUDMAN
Between
JOHN CHRISTOPHER KINGSClaimantDOROTHY BULTITUDEDefendantsH M ATTORNEY GENERALDefendant
Barbara Rich (instructed by Buss Murton LLP) for First DefendantMark Mullen (instructed by the Treasury Solicitor) for Second DefendantHearing Hearing date: 27 April 2010
Judgment
[1]This is the claim of a solicitor-executor, Mr John Kings, for determination of questions arising in relation to the residuary estate of Pamela Schroder deceased. Mrs Schroder died on 2nd January 2008 and probate of her last will dated 3rd September 1975, (“the Will”) was granted on 10th July 2008. The net value of her estate was sworn at £547,749. The residuary estate is likely to be worth in the region of £449,000, subject to costs of administration including the costs of these proceedings.[2]In order to save costs Mr Kings has not attended or been represented at the trial. The matters in issue have been argued by Miss Rich for the first defendant Mrs Bultitude, representing the beneficiaries who would take in the event of partial intestacy, and Mr Mullen on behalf of the second defendant HM Attorney General, representing charity.[3]The issues centre on Clause 8 of the Will, which contains a gift of residue in the following terms:
“to the person who at the time of the payment of the same shall be or act as the Trustee of the Ancient Catholic Church known as the Church of the Good Shepherd at present meeting at Rookwood Road London N16 in the London Borough of Hackney for the general purposes of the said Church and the receipt of such Trustee or the person acting as such shall be a sufficient discharge to my trustees”
[4]There is now no such trustee, other than such claims as Mr Kings may have to be a trustee as personal representative of Mrs Schroder, but a trust does not fail for want of a trustee. The following questions arise: 1. Is Mrs Schroder’s residuary estate the subject of a valid charitable gift to an identifiable institution? 2. Is it the subject of a valid charitable gift which failed subsequent to its having taken effect so that it may be applied cy-près without more? 3. Is it the subject of a valid charitable gift of which the initial purpose has failed but which may be applied cy-près in accordance with a paramount charitable intention to be ascribed to Mrs Schroder? 4. Is it undisposed of so that it devolves in accordance with the laws of intestacy?[5]A fifth question arises as to ownership of effects at the church premises at Rookwood Road and bank accounts held by Mrs Schroder in the name of the Church, that is to say whether they belong to Mrs Schroder beneficially or whether they should be accounted for to HM Attorney General.

History of the Ancient Catholic Church (“the Church”)

[6]The Church was Mrs Schroder’s life and she devoted all her time, energies and finances to it. She was the designated keeper of its archives. She conducted services until 23rd December 2007, only a few days before her death. In May 2007 she described herself as “sole custodian of the Church”.[7]In the 1950s the Church was a thriving entity with several thousand followers. Sir Alfred Munnings was an adherent. At the time Mrs Schroder made the Will, at least until her husband’s death on 1st October 1985, the Church was still flourishing. The present problem has arisen because membership began to dwindle and, by the time of Mrs Schroder’s death more than 20 years later, the congregation was very small indeed.[8]The Church was founded by one Harold Nicholson. By the 1940s there were several movements, schismatic from Rome, some of which were comprised in the Catholic Apostolic Church, known as the Catholicate of the West. Mr Nicholson had begun a house church movement in Clapton in the 1930s, moved to Thornton Heath and in 1943 was ordained a priest into the Catholic Apostolic Church. After the Second World War Mr Nicholson’s movement acquired a bomb-damaged former Baptist Chapel in Lower Sloane Street Chelsea, restored it in a high Catholic tradition and opened it as the Church of the Good Shepherd in 1947. In 1949, Mr Nicholson resigned from the ministry of the Catholicate of the West, although he maintained close links with the Patriarch. On 27th May 1950, at a service in Chelsea, the Patriarch issued a charter to the Church, creating it as an independent and autocephalus tropus of the Catholicate of the West and consecrating Nicholson as its first Primate.[9]The Church left the Catholicate of the West in about 1955, shortly before the Catholicate itself was dissolved. In December 1956 the Church moved to Clapton, where Mr Nicholson had started out, to premises in Rookwood Road which had been used as a church for the Agapemonites but had been disused for over fifty years. The move was as a result of the death (the funeral was conducted by Mr Nicholson) of Ruth Preece, the so-called “spiritual bride” of J H Smyth-Pigott, the “Clapton Messiah”, leader of the Agapemonite sect.[10]The building and premises at Rookwood Road (“the Building”) was opened as the Cathedral Church of the Good Shepherd, and the Church’s occupation of the Chelsea premises was discontinued. In 1957 a lease of the premises was granted to Mr and Mrs Schroder. The freehold owners were and are the trustees for the persons entitled on dissolution of the Agapemonites, including a Mr Jonathan Buckley who has corresponded with Mr Kings and provided much of the relevant information about the Building.[11]In 1968, Mr Nicholson died. Mr Schroder was elected and enthroned as Primate in his place. One Monica Daviel purported to “assign my position as Trustee” of the Church to Mrs Schroder, although Mr Kings is dubious as to the effectiveness of such a transfer. Mr Schroder and a Mr Hampton were also appointed trustees, to act with Emily Nicholson (Mr Nicholson’s widow) and Ethel Stubbington. All such persons are now dead.[12]In the 1970s the lease arrangement came to an end and the Church continued to occupy the Building under a licence or tenancy at will to Mr and Mrs Schroder. After Mr Schroder’s death Mrs Schroder continued to pay some form of rent and the arrangement continued until her death.[13]In 1985 Mr Schroder died. At some date, not in evidence, Mrs Schroder assumed the title of “Reverend” and began to conduct services. From about 1995 until her death she conducted all the services as the only minister and priest of the Church.[14]The important constitutional documents are as follows:• 28th April 1950: A Trust Deed (“the Trust Deed”) establishing the Church under Mr Nicholson as first Primate.• 27th May 1950: The Charter referred to above.• An undated document called the Canons Ecclesiastical of the Ancient Catholic Church, (“the Canons Ecclesiastical”) incorporated by reference into the Trust Deed and declaring the Trust Deed to be the constitution of the Church binding on all its members.• A document entitled Validation of the Orders of the Ancient Catholic Church “the Validation document”), dated Christmas 1954, which explains the doctrines and evidences the ordination requirements of the Church.

Charitable gift to the Liberal Catholic Apostolic Church?

[15]It is common ground that in principle the gift in clause 8 of the Will is capable of constituting a valid charitable gift fulfilling the requirements of the Charities Act 2006 sections 2 and 3. The Church was established for the advancement of religion and it is accepted on both sides that there was the requisite element of public benefit in, for example, public worship and public administration of the sacraments.[16]Logically the first question for the Court is whether the Church still exists in some form so that its purposes can be said to continue to be carried out as those of an existing identifiable institution. Soon after Mrs Schroder’s death a Mr Kersey made a claim that his organisation, the Liberal Catholic Apostolic Church (“LCAC”) was a successor organisation to the Church and thus entitled to its assets. The claim seems to have been based on an asserted apostolic succession of Mr Kersey to Mr Nicholson, supported by a Deed of Attestation from a Mr Hadingham (apparently a former member of the Church) purporting to validate Mr Kersey as successor to Mr Schroder as Primate of the Church. However Mr Kersey’s alleged succession does not comply with the requirements of the Trust Deed and there is some evidence leading to the inference that Mr and Mrs Schroder would have rejected his claims and those of the LCAC.[17]Mr Kings has done a great deal of research into the claims of Mr Kersey and the LCAC, and he takes the view, based on examination of various documents put forward by Mr Kersey, that it was clear that no steps towards primatial succession by Mr Kersey were taken before Mrs Schroder’s death and no attempt was taken to reconcile Mr Kersey’s position with the constitutional framework affecting the Church.[18]In any event, after letters from Mr Kings’s firm inviting Mr Kersey’s comments on certain constitutional questions, Mr Kersey and Mr Hadingham have firmly disclaimed any interest in making any claim to or about Mrs Schroder’s estate “and all related matters”.[19]In those circumstances the parties to these proceedings have, rightly in my view, discounted any possible claims by Mr Kersey or the LCAC for the purposes of these proceedings.

Subsequent or initial failure? The Law

[20]The Church as it existed at Rookwood Road has now closed. The doors of the Building were closed at the time of Mrs Schroder’s death and remained so closed as far as the Church was concerned. The Building is now being used by the Georgian Orthodox Church.[21]That gives rise to the question whether the purposes of the Church continued to be carried on after Mrs Schroder’s death, in which event there is a case of subsequent failure so that the subject-matter of the gift falls to be applied cy-près without more, despite total cesser of activities and purposes thereafter. The alternative question is whether there was an initial failure, in which case the gift to charity can only be saved if a general or paramount charitable intention can be found in the Will.[22]The first issue is thus whether all or any of the activities of the Church were carried on after Mrs Schroder’s death. If the answer is affirmative, it is a case of subsequent failure and the gift is saved for charity.[23]A negative answer to that question does not however conclude the matter against charity. The gift in the Will was made expressly for the “general purposes of the…Church”. Its purposes were for the advancement of religion and satisfy the requirement of public benefit. Therefore a gift for the purposes of the Church (an unincorporated association) can take effect under a scheme even if the institution was not in existence at the death, provided that(a) the testatrix did not intend to make the gift dependent on the named institution remaining in existence and that(b) the work of the institution is still being carried on as a matter of fact: see Re Vernon’s Will Trusts [1972] Ch 300n, Re Finger’s Will Trusts [1972] Ch 286. As Mummery LJ said in Re Broadbent [2001] EWCA Civ 714 at paragraphs 27 and 36, “As a general rule, the purposes of a named church do not come to an end as a result of its building ceasing to be available for use in connection with the church… A church building may be closed up and pulled down, but the activities which further the general purposes of the church do not necessarily close down… If on examination of all the relevant material, the court is satisfied that the gift is for a charitable purpose which the institution existed to promote and there are existing funds dedicated to that purpose (to which the bequest can be added), the gift will not be allowed to fail simply because the particular institution used as a means of attaining the charitable end has ceased to exist.”[24]There is a preliminary question of law, namely, at what moment does a gift takes effect? That is vital to this case. Mr Mullen submits that the purposes of the Church continued after Mrs Schroder’s death; Miss Rich submits that they ceased, at latest, on her death. If they ceased on or by reason of the death, is that a case of initial or subsequent failure? The parties have been unable to refer me to any authority dealing with the termination by reason of death of a charitable institution carried on by the testator himself.[25]Tax lawyers are familiar with the concept of valuing the deceased’s estate immediately before death, but the rationale for the express statutory provisions to such effect (to ensure that interests ceasing on death do not adventitiously fall outside the taxing provisions) does not apply in the present case.[26]I was referred to Re Slevin [1981] 2 Ch 236 in which, at 241, the basis for subsequent failure of a gift was discussed. It seems to me that if an institution and its purposes come to an end by virtue of a death there is nothing for the legatee to inherit and it is becomes impossible to carry out the purposes at the moment of death. Logically it cannot therefore be a case of subsequent impossibility.

The evidence

[27]With these principles in mind I turn to the facts of the present case.[28]The evidence is contained in two witness statements. First there is the evidence of Mr Kings in his witness statement and the exhibits. He has no first hand knowledge of the matter but has done a very great deal of research into documents and on the internet and talked to and corresponded with numerous people, including Mr Buckley, Mr Kersey and relatives of Mrs Schroder. As a result he has amassed a considerable amount of material about the history of the Church, its doctrines and practices, its constitution and its relationship with other churches.[29]The second witness statement is that of a Mrs Luchette Gray. She attended the Building for services some four times a week for about 38 years until Mrs Schroder’s last service in December 2007. Mrs Gray was an altar server for the Church. Her evidence is particularly important as she was a close friend of Mr and Mrs Schroder and is an independent witness. She says that she had never seen Mr Kersey in the church; in the five years up to Mrs Schroder’s death there were only four regular members of the congregation, including the organist and Mrs Gray herself. Mrs Gray is the only witness who was found to give any direct narrative of events following Mrs Schroder’s death. She says:
“Pamela Schroder took every service and recognised that she had not appointed anyone to succeed her saying that she had not found anyone suitable. Since [her] death, the few of us who made up the congregation no longer worship together since our church and all that it stood for has now come to an end with the death of Pam. …No other Church, to my knowledge, offers the same services and beliefs that Pam’s Church did. Sadly, the Church doors have remained closed since her death. Our Church has now come to an end and we have all gone our separate ways.”
[30]Also in evidence were photographs of the Building, of Mrs Schroder conducting services in it at various times and of the sign board outside it. It is clear that there were services of animal blessing, spiritualist services, weddings and christenings and that some of these special services were better attended than the regular services. This evidence is not inconsistent with that given by Mrs Gray who accepts that there were larger congregations for mediumship evenings and for animal blessings, although it is likely that the photographs do not relate to the few years immediately before Mrs Schroder’s death. Mr Kings was told that when Mrs Schroder went on holiday the Building would close and there would be no services.[31]There is also some indirect evidence from a Mrs Wendy Stokes, a journalist with the publication Psychic News, who telephoned Mr Kings’s firm. One of her main concerns was to complain about a man to whom Mrs Schroder had apparently made large of gifts of what Mrs Stokes considered to be Church property, that is to say property representing donations from parishioners over the years. She also complained that he had taken some of the Church assets from the safe. The one point relevant to the present issue which she made was, according to the attendance note, “….because no notice had been posted at the Church following Mrs Schroder’s death explaining what had happened, people were still turning up at the Church from all over London expecting to go to services.” Mrs Stokes also wrote an obituary in Psychic News of 23rd February 2008 referring to Mrs Schroder’s “busy congregation”. However the article does not give details as to time and in any event I prefer the evidence in the sworn statement of Mrs Gray as to the position in the few years before Mrs Schroder’s death. This is supported by a letter from Mr Kersey, who refers to the “extremely small” attendance “by the end of Pam’s time”.

The Church Constitution and Mrs Bultitude’s primary claim

[32]The Trust Deed dealt with the constitutional structure of the Church and its key doctrinal principles. It did not purport to declare a trust of any specific property and there is no evidence of any subsequent endowment of property to be held on trust for the Church. The Trust Deed did not make provision for any objects or purposes other than the establishment of the Church as a religious denomination. In effect, the Trust Deed was the governing document of the Church as an unincorporated association. It contained provisions about the election, functions and jurisdiction of the Primate and of a Primatial Synod (which was to elect the Primate) and the appointment of trustees. Mr Nicholson and Mr Schroder were successive Primates but no further Primate was appointed after Mr Schroder’s death. The whole concept of a Primatial Synod, central to the constitution, fell into abeyance so that there was none in being, let alone active, after Mr Schroder’s death.[33]The Trust Deed was followed by a number of documents setting out and recording the principles of the Church as a religious denomination. They are, in the words of Mr Kings, “expressed in elaborate and grandiose legal or pseudo-legal language and refer to copious forms of authority and authenticity of the acts they record”. As he goes on to say, however, they appear to have little effect as a matter of law.[34]The basic constitutional tenets of the Church included governance by the Primatial Synod and the hierarchical supremacy of the Primate. I note also that paragraph 1 of an appendix (Ordination Requirements in the Ancient Catholic Church) to the Validation document provides:
“1. Men only are eligible for Major Orders, and the Ancient Catholic Church neither permits nor recognises women Bishops, Priests or Deacons. Women are, however, eligible for the Order of Deaconess.”
[35]After her husband’s death Mrs Schroder’s ministry did not conform to the provisions of the Trust Deed or to the tenets of the Validation document or the Canons Ecclesiastical. She administered the sacraments as a (indeed the only) full priest of the Church. She regarded herself as the only person authorised to ordain clergy. This contravened the requirement at paragraph 1 of the appendix quoted above and also the express provisions of Canon 16 of the Ecclesiastical Canons. She assumed sole responsibility for the governance of the Church and there was neither Primatial Synod nor Primate to give authority to her actions.[36]The weekly clairvoyance and medium address at the Building plainly went far beyond the original “spiritual vision” of the doctrines of the Church. They contravened the prohibitions against Psychic Matters contained in Canon 15, which stated in terms that “It is declared that this church is not a Spiritualist Church”. I note from what Mr Kersey has said that most of Mrs Schroder’s small congregation moved after her death to worship at Walthamstow Spiritualist Church. The inference that the Church had assumed a spiritualist dimension is supported by the obituary of Mrs Schroder in Psychic News.[37]Accordingly the first defendant’s primary case on the facts is that the Church, as that expression was used in the Will (which pre-dated Mr Schroder’s death), its purposes and activities, came to an end on Mr Schroder’s death in 1985.[38]However, there is a distinction between the de jure (strict legal) position and the de facto (factual) position. Although the Church had departed from its constitution, it continued as an institution under Mrs Schroder’s ministry in accordance with the tenets and beliefs that she prescribed and which she plainly believed fundamentally conformed to those of Mr Nicholson and Mr Schroder. In her mind and for her purposes the Church continued, and I interpret her Will in that context.[39]I therefore hold that the purposes of the Church continued after 1985.

Did the Church continue as an institution for a short period after Mrs Schroder’s death?

[40]The next question is therefore whether as a matter of fact the Church continued to exist after Mrs Schroder’s death. I have already decided that if its activities ceased on the death that would be equivalent for present purposes to cesser immediately before the death.[41]Mr Mullen submitted that the Church did continue to exist for a short time, on the following basis. The Church included laity as well as clergy although, as I have indicated, it had been intended to be ruled by constitutional decisions made by the Primatial Synod and by the Primate. Mrs Schroder was survived by a number of lay members of the congregation, the ‘company of faithful people’ referred to in the Validation document. Members of the congregation attended the Building in ignorance of Mrs Schroder’s death. The members therefore only decided to go their separate ways after the death, and, so Mr Mullen submitted, the Church accordingly only became defunct after the gift had taken effect.[42]I do not agree. It seems to me that Mrs Schroder was essential to the activities of the Church and without her it simply ceased to exist. If Mr Kings had applied for an administrative scheme to regularise the governance of the church, as Mr Mullen submits he could have done, it is to no purpose, as Mr Mullen also submitted, that the congregation “could have continued to meet for services which did not require an ordained minister in the meantime and a new minister could have been sought for those that did.” The fact of the matter is that the congregation did not continue to meet in the name of the Church. Instead, the members went their separate ways.[43]Mr Mullen submitted that the work of the Church is capable of being carried on. Its purposes appear from the Trust Deed and other constitutional documents and are, in essence, the promotion of a reasonably traditional form of Christianity with adherence to the Nicene Creed, the maintenance of the apostolic succession and the administration of traditionally recognised sacraments, adhering to the Roman belief in the real presence of Christ in the sacrament. The promotion of Christianity, the administration of the sacraments and the maintenance of Catholic Orders are of course carried on by many religious denominations. Mr Mullen also relied on an article in the West London Press of 9 June 1950 shortly after its foundation and Mr Nicholson’s enthronement as its first Primate, in which he is reported to have said that “he hoped to develop a real home for people of all religious denominations.”[44]The use of the phrase “at present meeting in Rookwood Road” in Clause 8 of the Will shows that the gift was not conditional on the Church’s purposes being carried on at the Building. However Mr Mullen went further than that. He submitted that those words showed also that the gift was not tied to any particular method of putting the purposes of the Church into effect. That seems to me to beg the very question that I have to decide. One can summarise the purposes of the Church in many ways; the question is whether the ingredients enumerated by Mr Mullen excluded matters that Mrs Schroder must herself be taken to have considered essential to those purposes.[45]This issue overlaps with that of whether Mrs Schroder intended to make her gift dependent upon the continuation of the Church (as opposed to the physical manifestation of the Church at the Building) as a distinct institution.[46]The following matters are important. By the time of her death the Church had no activities other than the ministry of Mrs Schroder, a ministry which, to all intents and purposes, she herself was funding. The Trust Deed made no provision for any objects or purposes other than the religious denomination of the Church, which it described as a “new” religious denomination, and which its Charter established as an “autocephalus tropus”, that is to say, a canonically independent denomination.[47]It is abundantly evident from the Trust Deed and the Validation document that the Church set great store by the perpetuation of the apostolic succession and the validation of ministerial orders as the Church itself interpreted those matters. It is true that the clergy of the Church derived their orders (and authority) by virtue of consecration by bishops of other churches. However that was more a validation of the authority of the founders in terms of apostolic succession than a matter giving free rein for the future to ordination by those outside the Church. I note the importance attached in the constitutional documents to the requirements for election of a Primate by the Primatial Synod, for the training of clergy and the rites for consecration of the Primate.[48]It is impossible not to read the constitutional documents as giving effect to the idiosyncrasies of Mr Nicholson as the Church’s founder and of any Primate who succeeded him. It is evident that before his death Mr Nicholson recognised that Mr and Mrs Schroder represented the only prospect of continuation for the Church. After Mr Schroder’s death, Mrs Schroder and her particular idiosyncrasies dictated the ministry of the Church.[49]As to the quotation from Mr Nicholson in the newspaper article, I agree with Miss Rich that his public statement is significantly more inclusive and indeterminate than the description of the tenets and ministry of the Church in the constitutional documents and, in particular, the Canons Ecclesiastical. In any event, whatever Mr Nicholson’s aspirations may have been as to the scope of his congregation, it is evident that its members would have been expected to subscribe to his own beliefs and that the rites, ceremonies and constitutional procedures of the Church were a prerequisite to ordination.[50]I accept Miss Rich’s submission that the Church became constitutionally defunct on the death of Mr Schroder. I would add that it, and, importantly, its purposes, went on to become defunct in practical terms on the death of his wife. She believed passionately in the Church as a separate denomination. That is borne out by a letter from Mrs Schroder to a Mr Biggs of 10th July 1989 in effect refusing his application to be ordained a minister of the Church on the ground that “I would need to be satisfied that I am not ordaining someone who has fundamental differences of belief to me.” By that stage she was treating the views of the Church as being the same as her personal idiosyncratic views.[51]I agree with Mr Kings’s observation that all the independent Catholic churches were doctrinally distinct from one another, “which is why they remain doggedly independent and pursue their separate paths”. The Church under Mrs Schroder was particularly dogged in pursuing its separate path, to the extent of complete separation from all other schismatic institutions.[52]All the evidence points in my judgment to an intention on the part of Mrs Schroder to make the gift dependent on the continued existence of the Church as an institution.

Paramount Charitable Intention

[53]Moreover there is nothing in the Will to indicate a general charitable intention which might save the gift: contrast Re Harwood [1936] 1 Ch 285 with Re Finger (above). The Will contains no other charitable gift. The Church was constituted in accordance with the personal idiosyncratic beliefs of its founder, and continued by Mrs Schroder in accordance with her own particular idiosyncrasies.[54]I would accordingly answer the first three numbered questions in paragraph 4 above in the negative and the fourth in the affirmative. The gift of residue in Clause 8 of the Will fails so that residue passes on partial intestacy.

Ownership of Church assets

[55]I therefore turn to the fifth question, as to the ownership of:• The Church archive of documents.• The contents of the Building, valued at £5,250.• A current and deposit account with Barclays Bank with credit balances of £6,063.33 and £12,215.37 respectively at the date of death.[56]Miss Rich submitted that all of the assets form part of Mrs Schroder’s personal estate. The Church never had any permanent endowment and it was substantially funded from Mrs Schroder’s personal resources, although Mr Kings’s evidence suggests that the source of the funds in the bank accounts may to some extent have been church collections.[57]Dealing with the bank accounts first, they were in the name of the Church, and Mrs Schroder kept them entirely separate from her personal bank accounts. In my judgment there is nothing to rebut the presumption which therefore arises that Mrs Schroder held those accounts for charitable purposes and not beneficially. They were held unconditionally on behalf of the Church at a time when it was still functioning. In my view they are therefore applicable cy-près.[58]Miss Rich also argued that the Church archive and the contents were the subject of a personal gift from Mr Nicholson to Mrs Schroder. However the evidence of Mrs Schroder’s niece Mrs Seddon was that these items were “entrusted” to Mrs Schroder. I have little doubt that this was the case and that she was given them for Church purposes rather than beneficially. However this point may be of academic interest only as the family members wish to maintain a historical archive of such items in the circumstances described by Mrs Seddon in her statement of 6th January 2008 sent under cover of a letter to Mr Kings of 9th January 2009. It may be that whatever I decide agreement will be reached for this to be done.[59]At all events, I decide the fifth issue in favour of HM Attorney General.

Cited in 1 later judgment