Gilmour v Coats

JurisdictionEngland & Wales
JudgeLord Simonds,Lord du Parcq,Lord Normand:,Lord Morton of Henryton:,Lord Reid
Judgment Date08 April 1949
Judgment citation (vLex)[1949] UKHL J0408-2
Date08 April 1949
CourtHouse of Lords

[1949] UKHL J0408-2

House of Lords

Lord Simonds

Lord du Parcq

Lord Normand

Lord Morton of Henryton

Lord Reid

Gilmour
and
Coats and Others

Upon Report from the Appellate Committee, to whom was referred the Cause Gilmour against Coats and others, that the Committee had heard Counsel, as well on Wednesday the 26th, Thursday the 27th and Monday the 31st days of January last, as on Tuesday the 1st and Wednesday the 2d days of February last, upon the Petition and Appeal of Ethel Gilmour (Spinster), for and on behalf of The Carmelite Priory St. Charles' Square, Notting Hill, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 9th of March 1948, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Evelyn Dudley Coats (Spinster) and George Bellord; John Pius Boland, the Right Honourable Bernard Edward Fitzalan-Howard Baron Howard of Glossop and the Honourable Colum Edmund Crichton-Stuart, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 9th day of March 1948, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Trust Fund be applied in the first place in payment of the costs incurred in respect of the said Appeal by the said Respondents Evelyn Dudley Coats and George Bellord, and in the second place in payment of the costs incurred in respect of the said Appeal by the said Respondents John Pius Boland, the Right Honourable Bernard Edward Fitzalan-Howard Baron Howard of Glossop and the Honourable Colum Edmund Crichton-Stuart, the amount of such costs respectively to be certified by the Clerk of the Parliaments.

Lord Simonds

My Lords,

1

The Appellant, Ethel Gilmour, is the present Prioress of the Carmelite Priory of St. Charles' Square, Notting Hill, London. In that capacity she appeals against a judgment of the Court of Appeal, whereby that Court dismissed an appeal from a judgment of Mr. Justice Jenkins who had in effect declared the purposes of the Carmelite Priory not to be charitable in the technical sense which the law ascribes to that word.

2

The question arises in this way. By a declaration of trust made on the 10th June, 1946, between the Respondent, Evelyn Dudley Coats, of the one part and herself and George Bellow (therein called "the Trustees") of the other part a sum of £500 cash was settled upon trust after payment of costs for investment as therein mentioned and to hold the resulting trust fund "Upon trust if the purposes of the Roman Catholic Community situate and known as the Carmelite Priory, St. Charles' Square, Notting Hill, in the County of London, are charitable to apply the income of the Trust Fund to all or any such purposes … but if the purposes of the said community are not charitable then upon trust to apply the Trust Fund to all or any of the purposes of the Converts' Aid Society of 20, Holmes Road, Twickenham, Middlesex." This settlement was admittedly made for the purpose of raising the question which has now reached this House. Accordingly within a short time an originating summons was issued in the Chancery Division by the trustees, to which the present Appellant and certain persons representing the Converts' Aid Society, who are the present Respondents, were made Defendants, asking how the trustees ought to apply the income of the trust fund. The question, though framed in this general way, was intended to raise the issue whether the purposes of the Carmelite Priory were charitable. For it was clear that the settlement created a perpetuity in favour of that community, so that, if the purposes were not charitable, the gift over in favour of the Converts' Aid Society would take effect.

3

What then were the purposes of this Carmelite Priory, which I will sometimes refer to as "the Convent" or "the community"? Upon this matter evidence was given by the Appellant herself and by His Eminence Cardinal Griffin, the Roman Catholic Archbishop of Westminster. This evidence is stated at length in the very careful judgment of Mr. Justice Jenkins and I will refer to certain salient features of it. The whole of it has been carefully considered by the House.

4

It appears that this community is one of the communities of the Discalced Nuns of the Order of Our Blessed Lady of Mount Carmel, and that the Discalced Friars and Nuns have been a separate branch of the Order under the jurisdiction of their own Father General since the General Chapter of the whole Order held at Cremona in the year 1593. They were founded by St. Theresa of Avila with the object of restoring the strict enclosure and intensifying the contemplative life of the communities and promoting their share in the apostolate. The first convent of nuns was founded by her at Avila in 1562. The convent here in question was founded in the year 1878 from the Convent of the Incarnation in Paris and from it 33 other convents have been founded in England, Scotland and Wales.

5

The Discalced Carmelite Nuns throughout the world follow the Primitive Rule, which was drawn up by St. Albert Patriarch of Jerusalem and confirmed by Pope Innocent IV in 1247, and the Constitutions of 1591 as modified in 1926 to bring them into conformity with the new code of Canon Law of the Roman Catholic Church. Each Carmelite Convent consists of not more than 20 or 21 nuns who live in community and are presided over by a Prioress. Each convent is autonomous and all are subject to the jurisdiction of the General of the Discalced Carmelite Friars or of the local Bishop. The purposes of the nuns are conveniently summarised in the prologue to the Constitutions of the Discalced Carmelite Friars which states "two vocations in their due order have been divinely ordained. The more important aim of our life shall be the love and contemplation of divine things and the secondary aim the apostolate, particularly all that pertains to our neighbours' salvation."

6

The nuns take vows of perpetual poverty, chastity and obedience and live under rules which impose and regulate the strict enclosure and observance of silence, which are said to be the conditions of the true and fruitful following of the contemplative life. So too their rules prescribe the occupations which are to fill their lives. They must assist devoutly and every day at the celebration of the mass and the recital of the Divine Office and other offices and prayers of the Church, must spend so many hours a day in mental prayers which are offered with general or special intentions in furtherance of their aims, must never be idle but must spend all the time that is not occupied in community duties in prayer or spiritual reading or work in their cells. Further, the rules prescribe practices to further the spirit of humility and particular mortifications, as for example a monastic fast lasting from September 14th to Easter, and the prohibition throughout their lives of those aids to comfort which by ordinary women are regarded as necessities rather than luxuries of life.

7

This, then, is the life which it is the purpose of this community to promote in the women who join it. Is it a charitable purpose and is a trust for its furtherance a charitable trust?

8

The community does not engage in, indeed is by its rules debarred from, any exterior work, such as teaching, nursing or tending the poor, which distinguishes the active branches of the same Order. A Catholic woman, it is said, joins such a contemplative Order as this to promote in herself more fully and perfectly the love of God, expressed in as perfect a submission to His will as she can achieve with the help of His Grace, to promote that love in her neighbour and to make reparation to God for the sins of mankind. It is the teaching of the Church that the religious life thus led is, as it is called, the State of Perfection. But it is not a complete statement of their purpose to say that it is merely to work out their own salvation. For it is the established belief of the Roman Catholic Church, as appears from the Apostolic Constitution "Umbratilem" that the prayers and other spiritual penances and exercises, in which the nuns engage for the benefit of the public, in fact benefit the public by drawing down upon them grace from God, which enables those who are not yet Christians to embrace the Christian religion and those who are already Christians to practice Christianity more fully and fruitfully, and, further, that the prayers and other spiritual exercises of the nuns are the more efficacious by virtue of the fact that they devote their lives with especial devotion to the service of God. It is this benefit to all the world, arising from the value of their intercessory prayers, that the Appellant puts in the forefront of her case in urging the charitable purpose of the trust.

9

Nor is it only upon the intercessory value of prayer that the Appellant relies for the element of public benefit in their lives. For it is the evidence of Cardinal Griffin—and I do not pause to ask whether it is evidence of fact or opinion—that the practice of the religious life by the Carmelite nuns and other religious is a source of great edification to other Catholics—and indeed in innumerable cases to...

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