Re Hutchinson's Trusts

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 14 January 1914
• Court: Chancery Division (Ireland)
• Docket Number: (1913. No. 555.)
• Date: 14 January 1914

In re Hutchinson's Trusts.

M. R.

(1913. No. 555.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1914.

Charity — Dissenting Protestants — Unitarians Dissenters' Chapels Act, 1844 (7 & 8 Vict. c. 45) — “Congregation” — Meaning of.

Held, that inasmuch as no particular religious doctrines were required by the deed of trust to be taught, the provisions of the Dissenters' Chapels Act, 1844, applied, and that the usage for twenty-five years and upwards preceding the claim was conclusive evidence that Unitarian doctrines and mode of worship might properly be taught and observed in the church, and that the right of the minister to the annuity could not be called in question; (2) that there still was a congregation of Unitarians attending the church; and (3) that the trust fund should be paid over to the Commissioners of Charitable Donations and Bequests, and the income paid to the minister for the time being of the Unitarian congregation in Clonmel.

Adjourned Summons.

This was an application on behalf of Richard Bagwell, of Marl-field in the county of Tipperary, and the Rev. Robert John Orr, of Airmount, Clonmel, in the same county, for the determination of the following question:—Whether the annuity of £15 (Irish currency), granted by an indenture dated the 27th November, 1747, made between Richard Hutchinson of the one part and Matthew Jacob and John Bagwell of the other part, on the trusts thereby declared, or the redemption price thereof of £380 19s. 2d., as fixed by order of the Irish Land Commission, dated the 27th April, 1911, should be secured for the benefit of the said Robert John Orr or others his successors for the time being occupying the position of minister of the congregation of Nelson Street, Clonmel, or that the same should be secured for the benefit of the Rev. Robert Rentoul or others his successors for the time being acting as minister of the Presbyterian church in the town of Clonmel.

The following statement of fact is taken from the judgment of the Master of the Rolls:—

“This annuity was created by an indenture, dated the 27th November, 1747, whereby Richard Hutchinson granted to Matthew Jacob and John Bagwell, their executors, administrators, and assigns, an annuity or yearly rentcharge of £15, to be received, taken, and issuing out of the lands of Knocklofty situate in the Barony of Iffa and Offa in the county of Tipperary for the term of 999 years.

“Almost contemporaneously with, but before, the grant of this annuity, John Perry, by an indenture dated the 15th October, 1747, demised to the said Matthew Jacob and John Bagwell a parcel of ground in the town of Clonmel for the term of 999 years at a peppercorn rent.

“There were no trusts originally declared concerning the annuity or the land demised, but it appears from subsequent documents that Matthew Jacob and John Bagwell were really trustees in the matter.

“The title to the annuity and land devolved by conveyance on Matthew Jacob, William Ryall, John Bagwell, and Samuel Perry, and by a deed poll, dated 14th October, 1761, these parties declared that the annuity had been assigned to them upon trust to pay the same to the Rev. John Patton, or such other person as for the time being should have the pastoral care of the congregation of Dissenting Protestants of the town of Clonmel, for or towards the support of such pastor, and that the land and the house then erected thereon should be held upon trust for the residence of the said John Patton and of such other person or persons as should from time to time thereafter be pastor or pastors of the said congregation.

“The history of the congregation is as follows:—

“The congregation of Dissenting Protestants of whom the Rev. John Patton was the pastor were Presbyterians, but he appears to have been succeeded in the ministry by a clergyman who either always professed, or subsequently adopted, the Unitarian doctrine. He appears to have preached this doctrine to his congregation, with the result that in 1827 a considerable number—stated to be the majority—seceded, and established a church of their own which has since been carried on in connection with the General Assembly of the Presbyterian Church in Ireland. The remaining members of the congregation continued to attend the services held in the original church, which from 1827 has been a Unitarian church.

“The seceding Presbyterians made no claim to the annuity of £15 Irish, or to the plot of ground which was given to provide a residence for the Rev. John Patton and his successors. The Unitarian congregation and their ministers in succession were thenceforth allowed to remain in undisputed enjoyment of both properties and the original church. The seceding Presbyterian congregation in fact abandoned all claim to them.

“Such is the history of the actual enjoyment of the endowment. The legal title had been kept up by the appointment of new trustees from time to time. The last appointment by deed seems to have been in the year 1816, and there was no further appointment until an application was made to this Court in the year 1877 under the 52nd Geo. 3, c. 101. By an order made in that matter, dated the 13th June, 1877, four gentlemen were appointed new trustees of the property, which, it was ordered, should be vested in them upon the trusts then subsisting.

“These new trustees, and the survivors of them, thenceforth continued to hold the property for the benefit of the Unitarian minister and congregation, and no question was raised until the annuity was redeemed in the year 1911, and the price of the redemption was paid into Court.”

The following additional facts appeared from the affidavits filed in the matter:—

The Rev. James Orr (father of the applicant the Rev. John Orr) was the last resident Unitarian minister of the church in Nelson Street. He died in 1882. After that date the services in the church were held by different ministers, called “supply ministers.” It was admitted that up to that date there was a congregation attending the church, but the existence of a congregation after that date was denied, and affidavits were made by Mr. Rentoul that in 1911, and since, there was no “congregation,” and that the only persons who attended the church when services were held were three Misses Orr, sisters of the Rev. John Orr, except on rare occasions when casual visitors attended. On the other hand, affidavits were made by the Rev. John Orr that services were regularly held by himself and other visiting ministers, and that there was at the present time a congregation consisting of his three sisters, himself when residing in Clonmel, and a Mr. Canning, who was a chauffeur and driving instructor at a motor garage in the town.

A book was produced in which the Unitarian congregation in Clonmel was returned as one of the three congregations which form the Synod of Munster. These three are Dublin, Cork, Clonmel; and a meeting of the Synod is held alternately in each of these places.

R. D. Murray, for the applicants:—

It must be admitted that Unitarians do not come within the words of the deed of the 14th October, 1761, “Dissenting Protestants”: Attorney-General v. Drummond (1), affirmed in the House of Lords in Drummond v. Attorney-General (2). Sir Edward Sugden there decided that Unitarians were not Protestant Dissenters within the terms of the trusts of a deed of 1710, which had for its objects—1, to support the Protestant Dissenting interest against unreasonable persecutions; 2, the education of youth designed for the...