Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others

JurisdictionEngland & Wales
JudgeMr Justice Etherton
Judgment Date26 February 2002
Neutral Citation[2002] EWHC 218 (Ch)
Docket NumberCase No: CH 1998 B 53421
CourtChancery Division
Date26 February 2002

[2002] EWHC 218 (Ch)



Royal Courts of Justice

Strand, London, WC2A 2LL


The Honourable Mr Justice Etherton

Case No: CH 1998 B 53421

The Bath and Wells Diocesan Board of Finance & Anor
Jenkinson & Ors

Mr C. Nugee Q.C. (instructed by Gould & Swayne) for the Claimants

Mr T. D. Baxendale (instructed by Thring Townsend) for the Defendants

Hearing dates : Thursday 24th January 2002

This judgment will be made available on the Court Service web site: under the heading "judgments" on the homepage


Mr Justice Etherton

Mr Justice Etherton :



This the hearing of an application by The Reverend Noel Anthony Hector, Rector of Wrington ("the Trustee"), for directions concerning the beneficial ownership of the proceeds of sale of the site of the former Redhill Church of England Voluntary Aided School in Avon ("the School Site"). The First to Fourth Defendants ("the Defendants") claim that they are entitled to those proceeds of sale.


The School Site was conveyed in 1872 by the 4 th Duke of Cleveland to the then Rector of Wrington under the provisions of the School Sites Act 1841("the 1841 Act"). The School Site ceased to be used for the purposes of a school in August 1984, and was sold by the then Rector of Wrington in 1990. By virtue of the Reverter of Sites Act 1987, the Trustee holds the proceeds of sale on trust for the persons entitled under the statutory reverter in s. 2 of the 1841 Act ("the s. 2 reverter")


Doubts have arisen as to the identity of the person or persons entitled under the s. 2 reverter.

The Factual Background in more detail


The School Site formed part of the Bathwick and Wrington estates, in Somerset (the Somerset Estate"), of the 1 st Duke of Cleveland.


The 1 st Duke had 3 sons and 3 daughters. None of his sons had any issue. The 3 daughters had issue, creating, in very broad terms, the three family lines which I shall call the Forester family line, the Milbank family line, and the Hay-Drummond family line respectively.


By the 1 st Duke's will dated 15 th June 1836 the Somerset Estate was settled on complex trusts, the broad effect of which was that, if his two eldest sons died without issue, the Somerset Estate would be held on trust for life for his third son, who in due course became the 4 th (and last) Duke, and then his sons in tail male, and then, subject to an annuity in favour of Henry William Forester, on trust for Frederic Acclom Milbank ("F. A. Milbank") for life and then his sons in tail male.


The 1 st Duke died on 29 th January 1842.


The 1st Duke's eldest son, who became the 2 nd Duke, died in 1864, without issue, as I have said.


The 1 st Duke's second son, who became the third Duke, also died in 1864, without issue, as I have said.


On 17 th June 1872 a disentailing assurance in respect of the Somerset Estate ("the 1872 Disentailing Assurance") was executed by the 4 th Duke, F. A. Milbank and his eldest son William Henry Vane Milbank ("W.H.V.Milbank"). By an indenture of the same date ("the 1872 Appointment") executed by them, the Somerset Estate was appointed and transferred to the 4 th Duke.


By a conveyance dated 5th November 1872 ("the 1872 conveyance"), expressly stated to be made under the authority of the 1841 Act and the School Sites Act 1844, the School Site was conveyed by the 4 th Duke to the Rector of Wrington to be used for the purposes of the School Sites Acts.


By the 4 th Duke's will dated 22nd July 1891 he devised "all the manors advowsons messuages lands and hereditaments in the County of Somerset which at my death I shall be entitled to or have power to dispose of for an estate in fee simple legal or equitable" to his great nephew Francis William Forester ("F. W. Forester") for life with remainder to his sons in tail male. He left his residuary estate, as to one half, to his great nephew Arthur William Henry Hay-Drummond for life with remainder to such of his issue as he should appoint, and, as to the other half, to his great nephew Powlett Charles John Milbank on like trusts.


The 4 th Duke died on 21 st August 1891.


On 19 th July 1920 F. W. Forester and his son Henry William Forester ("H. W. Forester") executed a disentailing deed ("the 1920 Disentailing Deed") in respect of "ALL the lands and hereditaments in the County of Somerset devised by the said Will [of the 4th Duke"] of or to which the said Henry William Forester was under the said Will seised for an estate in tail male … expectant on the death of the said Frederick William Forester". By an indenture of the same date ("the 1920 Resettlement"), F. W. Forester and H. W. Forester appointed, among other things, "ALL THOSE messuages lands fee farm rents and hereditaments ….. known as the Bathwick Estate and all …hereditaments of freehold tenure held for an estate in fee simple comprised in [the 1920 Disentailing Deed]" to be held, in the events which happened, on trust for F. W. Forester for life, with remainders over.


By a contract of 4th September 1924 ("the 1924 Contract") between F. W. Forester and The Bathwick Estate Company ("the Estate Company") F. W. Forester agreed, as tenant for life, to sell to the Estate Company "all … the messuages lands and hereditaments situate at Bathwick and Wrington.. or elsewhere in the County of Somerset of which [F. W. Forester] is tenant for life in possession [under the 1920 Re-settlement]". By clause 3 of the 1924 Contract, the purchase price of £187,492 was to be satisfied by the allotment of fully paid up shares in the capital of the Estate Company.


The allotment of shares in the Estate Company, in satisfaction of the purchase price under the 1924 Contract, was made on 29 th October 1924.


The 1924 Contract was never, so far as is known, completed by the formal legal transfer of the lands and hereditaments comprised in it.


A resolution for the voluntary winding up of the Estate Company was passed on 18 th February 1974. The Estate Company was dissolved on 31st December 1981. There was no distribution of any rights under the s. 2 reverter.


The Defendants are the beneficial owners of the shares in the Company.


On 31st August 1984 Redhill School closed, and the School Site ceased to be used for the purposes of the 1841 Act.


In May 1990 the School Site was sold for £190,000. As at 31st May 1998 the amount held by the Trustee, representing the proceeds of sale and interest, was £311,335.34

The Defendants' claim


The Defendants claim that the right to the School Site or its proceeds under the s. 2 reverter passed under the devise of the Somerset Estate in the 4 th Duke's Will, and was vested in F. W. Forester for life under the 1920 Disentailing Deed and the 1920 Resettlement. They claim that F. W. Forester, acting properly within his powers as tenant for life under the Settled Land Act 1882, contracted to sell the s. 2 reverter rights to the Estate Company by the 1924 Contract, and that, following allotment of shares in the Estate Company in October 1924, in satisfaction of the purchase price payable under the 1924 Contract, the Estate Company was beneficially entitled to the s.2 reverter rights. If that is correct, then those rights will, they accept, have vested in the Crown as bona vacantia, on the dissolution of the Estate Company in 1981. The Treasury Solicitor has indicated that the Crown is willing to vest in the Defendants, as the owners of the shares in the Estate Company, any rights the Crown may have in the proceeds of sale of the School Site.

The legislation


Section 2 of the 1841 Act, so far as relevant, is in the following terms.

"… Any person, being seised in fee simple, fee tail, or for life, of and in any manor or lands of freehold, copyhold, or customary tenure, and having the beneficial interest in therein, … may grant, convey, or enfranchise by way of gift, sale, or exchange, in fee simple or for a term of years, any quantity not exceeding one acre of such land, as a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge; provided that no such grant made by any person seised only for life of and in any such manor or lands shall be valid, unless the person next entitled to the same in remainder, in fee simple or fee tail, (if legally competent,) shall be a party to and join in such grant … Provided also, that upon the said land so granted as aforesaid, or any part thereof, ceasing to be used for the purposes in this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate held in fee simple or otherwise, or of any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed, any thing herein contained to the contrary notwithstanding."


Fee simple owners as well as limited owners may convey land under the authority of s. 2. It is well established that the s. 2 reverter applies to a conveyance by an absolute owner who conveys under s. 2, even though he does not require the assistance of s. 2 to convey the land: see Re Cawston's Conveyance [1940] Ch. 27. A reason why an absolute owner would wish to convey under s. 2 would be to take advantage of the s.2 reverter, since any express non-statutory right of reverter to the same effect would have infringed s.1 of the Charitable Uses Act 1736, which required a conveyance for charitable uses to be without any "power of revocation, reservation, trust, condition, limitation, clause or agreement whatsoever, for the benefit of the donor or grantor or of any person or persons claiming under...

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