In the Pitt-Rivers papers in the Pitt Rivers Museum [Pitt-Rivers Pamphlet Collection] is a printed copy of a judgement made in the High Court of Justice (Chancery Division) Scott v. Pitt-Rivers on 20 December 1900, 11 January 1901, 16 January 1901 and 28 January 1901.

This is an edited transcription of this judgement. It has been edited to include only the most interesting aspects of the document from the point of view of Pitt-Rivers' collection and the longevity of Farnham Museum, Pitt-Rivers' private museum on the Dorset/ Wiltshire border. The original is presumably based upon the shorthand writers' account of the case and what was said.

Mr Wilkinson:  My Lord, this is an originating Summons taken out on behalf of the trustees and executors of the late General Pitt-Rivers for the determination of certain questions of construction which arise upon the first codicil to the will. ... under the will the first Defendant, the eldest son of the testator, received all the personal estate, and as to the real estate he is tenant for life, and the second Defendant, his son, is the tenant-in-tail.

The devise under the will of the testator comprised an estate at Rushmore. Part of this estate consisted of a museum and farm of 8 acres of land known as the Larmer Grounds. It is well known during his life that the testator took an interest in the museum, and he collected articles of interest, which were placed on exhibition in it, and he spent also large sums of money in laying out the grounds.

... This is a guide to the Larmer grounds and museum which was prepared by the testator during his lifetime and which has been published since his death. The museum and pleasure grounds were open free to the public, and the testator kept a staff of servants to keep order and to show people over them ...

The first codicil of the will deals with the intention on the part of the testator, and the question shortly for your Lordship is whether the effect of the codicil is to continue the state of affairs which existed at the testator's death after his death. [sic]

[Wilkinson then read out the codicil of the will]

... The questions of construction that arise upon that codicil are shortly as to whether there is a definitive trust of these grounds and the museum bequeathed by that codicil. The trustees named there (Lord Avebury and Mr Charles Hercules Read) are represented by my learned friend Mr Renshaw, and they argue the point on behalf of there being a trust.

[The lawyers then show the judge where the museum and Larmer Grounds were in relation to the Rushmore estate]

Mr Lawrence [who appeared for Alexander Pitt-Rivers] ... Then under Clause 1 there is the museum, which was freehold in the testator, and therefore he was entitled to entail it. Then there are its contents, and the contents, except so far as they are fixtures, would be personal estate, and I should take an estate absolutely in those.

Then as to the "objects of curiosity in my house at Rushmore, which are intended to be placed in the said museum," the facts with regards to these objects are these. The testator before sending anything to the museum use to have the goods that he bought for the museum sent to the house ... and there they were catalogued and set up temporarily in his house in cases and ticketed, and so on; then when he had seen enough of them and had not room for them he sent them down to the museum; but he kept a large catalogue consisting of nine volumes of everything that was intended for the museum. That was kept there and illustrated. He had pictures made of everything that went down.

Now with regard to this bequest I should say that at all events there would pass to me under this gift all those things which he had identified as intended to go to the museum by entering them in the catalogue of the museum up to the date of the codicil. I do not think I could contend that anything after that would come to me ...

We have an affidavit by the testator's private secretary, who used to look after all those kinds of thing for him, and he has, as a matter of fact, listed all those down to the date of his death. He has made an accurate list of all those articles which were entered in that catalogue and those designated by tickets, and so on down to the date of the testator's death, but I think I should be right in asking only for those in the catalogue as being identified down to that date as coming to me. The rest are heirlooms, and he has given all the articles of vertu in Rushmore Hall as heirlooms. ...

Then as regards Clause 3, there is the sum of £300 per annum.

... That is given for the maintenance of the museum and Larmer grounds ...

Then No. 5 is, "I appoint my son in law John Lubbock Baronet of 2 St James' Street in the county of Middlesex and of High Elms Farnborough in the county of Kent and Charles Hercules Read of the British Museum [handwritten insert] in the County of Middlesex [end insert] to be the trustees only for the purposes so far as necessary in connection with the future maintenance of the said Museum Larmar [sic] grounds and the objects of interest therein and thereon." I say there is nothing in this codicil which in any way declares a trust of this museum and Larmer grounds, there is no trust that I am bound to dedicate it to the public or to keep it open for ever, or any trust that could be created. ... I do not know what the trustees would say to that, but they have no duties at all. ...

[Mr Renshaw explains that C.H. Reed had had long dealings with Pitt-Rivers about his museum in his professional capacity as a member of staff at the British Museum]

Mr Renshaw: ... There must have been some object in the testator's mind in appointing trustees. It cannot have been intended that the only son should take his property free and clear away.

... Mr Justice Kekewich: ... I think the Attorney-General is the only person who can deal with that. I suppose it would be a method of instructing the public like the Natural History Museum, and it is clearly a charitable bequest if once we get so far as that.

... Mr Lawrence: It would be a very curious result, because the expense of the upkeep is something enormous. These grounds were very curious

Mr Justice Kekewich: It would be very much more than £300.

Mr Lawrence: Yes. Your Lordship will see from the catalogue alone it ran into thousands.

Mr Justice Kekewich: ... I mean unless there is a public trust declared, which the Attorney-General only can put forward, the trustees have no duties to perform at all.

... I mean no duties to perform that can be legally enforced.

... Mr Lawrence: It is the evidence of Mr Johnson, who is described as being in the employment of the testator. He was employed by him to manage his objects of art in the museum, and so on, and his evidence is that the specimens which came to the museum were sent first to the house and then, after being examined by the testator, they were catalogued. ... "As a general rule the articles and specimens for the said museum were sent to the testator's house at Rushmore, and after being examined by the testator and catalogued sent to the museum at Farnham. 3. At the date of the testator's death the articles ... were in the testator's house in Rushmore. They were specimens which the testator had collected or purchased and were put in cases and in tables in the house at Rushmore and on the walls by way of decoration, but they all were intended to eventually form part of the collection in connection with the testator's museum at Farnham, as they were all drawn in colour in the catalogue of the contents of the museum prepared by and under the superintendence of the testator, and the whole or nearly the whole of the articles in the said schedule were ticketed and were intended to be removed to the museum. The said articles were always shown as part of the collection to any one asking to see them. The said catalogue of the contents of the said museum is contained in nine volumes, and is very elaborate.

... Mr Lawrence: The ticket is very important. If you find an article ticketed with a number corresponding with another number in the museum you have some identification, just as much as if you placed them in a separate room. That would be intended for the museum.

... [11 January 1901 agrees to call witnesses and the Attorney-General]

[16th January]

... [Arthur James Creech is examined by Mr Lawrence, he reports that on 20 November 1899 he was summons to Rushmore and asked to see the General alone ...]

[Creech]: 'He had not made any codicil as to the museum and Larmer grounds, and he wished to do so, and he feared whether there was time to communicate with Messrs Farrer for them to come down and make a codicil. He wished one made at once. ... He wished, as to the museum and Larmer grounds, that Mr Pitt-Rivers should carry them on in the same way as before, but he strictly mentioned that the public would have no rights in it. He feared--he asked the question whether I thought that the public would interfere with it in any way afterwards. ... and assert any right; that was what he was very jealous about, and did not wish, of course that anything of that kind might arise ... I may say that the codicil is in the General's own words. I took that down. [... Did he sign it then, after it had been fair copied, in the presence of yourself and your son?] [Creech]: Yes ... I took it away with me and kept it till after his death ... perhaps I ought to say as to the codicil itself some very short time before the General died, I think only a fortnight, or at any rate three weeks, he asked me if I still had the codicil. He said "Of course you have not parted with it." and I said, "No," and he said "Well, you are to part with it to no one; keep it till after I am dead, and then you will know what to do with it."

... Creech then wrote to Pitt-Rivers' lawyers Messrs Farrer sending the draft of the codicil, a letter comes back from Messrs Farrer read by Mr Lawrence, '... What we propose is to make a new Codicil, leaving the Museum, King John's House and Larmer Grounds to pass under the Will itself, but making the chattels heirlooms to go with the Estates. ... We propose therefore that General Pitt-Rivers shall express a hope in the Codicil that his son will keep up the museum &c., in the same way as he has done, and that in making any arrangements relating to them he will consult Sir John Lubbock and Mr Read.' ... then reports on other correspondence ... after a while Pitt-Rivers concluded that he did not Farrer's new codicil and wanted to retain the original one written by Creech.

As part of his evidence Creech says '... he told me several times that if I saw any interference on the part of the public in any way with his rights as owner I was at once [to] order the caretaker to shut the grounds up, and shut the public out'.

... Creech reports on a newspaper report: 'It is very evident, General, from the large number who assemble here from time to time, that your munificence is highly appreciated," said the editor. "Yes, there is not a shade of doubt on that point, and," smilingly said the General, "the more the people come the better I am pleased, but, of course, I maintain my rights, and if ever the public should endeavour to set up a right, I shall very quickly kick them out. Still I am bound to say that all the years I have allowed the public to come here nothing has occurred to shake my faith in them. ... I am astonished at the care which the public exhibit in regard to places of interest and the museum, which I permit them to visit free of charge." ...

During cross-examination of Alexander Pitt-Rivers he is asked 'Your father wanted you to go up and see Mr Read because Mr Read would satisfy you that these things were of value and were worth keeping up? Answer Yes ... I never doubted they were interesting things.

... Charles Hercules Read is cross-examined ...

Q. You knew the General very well, I think?

A. Yes, very well indeed.

Q. I think in his lifetime he was in the habit of consulting you with reference to the museum and the contents of it?

A. He was

Q. Did he ask you to become a trustee ... about the time he made this codicil, in November 1899?

A. Some time just shortly before that, I think it was--in October.

... Q. Will you tell his Lordship what passed between you and Mr Alexander Pitt-Rivers on the subject?

A. What passed was this: Mr Fox Pitt, as he then was, came to see me with regard to the disposition in the future of this museum and Larmer grounds, and to hear from me, I think, what had passed between his father and myself, and also to hear my individual opinion as being a person conversant with museums and collections of this kind as to the propriety or wisdom of keeping this museum in the place where it now stands ... The idea ... in the General's mind was that I was an outside and independent witness as to the value of these collections, whereas he himself speaking to his son might be considered to be a partisan obviously ... I was quite aware that the General thought that his sons did not, perhaps, take sufficient interest in the museum. Mr Fox Pitt explained that practically they were not allowed to take a very active part, and without taking an active part it was rather difficult to take an interest. ... I explained to Mr Fox Pitt that I, in conjunction with my co-trustee, if I may call him so, Lord Avebury, had suggested to the General several courses which he could take in disposing of this museum. One of them was, as he had already given a museum to Oxford, if he wished to remove it he might very reasonably give one to Cambridge now. That was one of the alternatives I put before him when he asked what I thought should be done. ... The other was that it might be sold--that was one way of disposing of it. Another was that it should be offered to the Trustees of the British Museum ... The fourth was that it should be kept where it was, knowing all the time that the General would only entertain one. ... [Q. That the General determined to keep it where it was?] A. Yes, I told Mr Fox Pitt that. ...

Q. And have you also talked to him [Pitt-Rivers] about the articles and collections he gave to Oxford?

A. I have had some conversations with him about that.

Q. He has told you many times, has he not, that he regretted ever having parted with that collection?

A. I could scarcely say "many times," but he has told me that.

Q. And also expressed a determination not to part with any other collection of his?

A. Well, never in those terms. ... With regard to the museum at Rushmore, he certainly would not entertain parting with it anywhere. ...

Judgment

... The Court therefore finds itself in this embarrassing position. If it accedes to the contention of the Attorney-General that there is a secret trust to be enforced for the benefit of the public, it must ignore or defeat the expressed intention of the testator that the public shall acquire no rights, and on the other hand, if that contention is rejected and the trust be not enforced, the only alternative can be that Mr Fox Pitt-Rivers will be left absolute owner of the property in question and at liberty if he wishes to disregard his father's wishes and to treat the property as equally at his disposal as if no trust had been communicated to and accepted by him.

... After full consideration I have arrived at the conclusion that the secret trust must be enforced at the Suit of the Attorney-General, and for the benefit of the public. This will preserve the legal ownership of the son which the father intended him to have: it will also fulfil his intention as far as it can be fulfilled, that the museum and grounds shall be maintained as heretofore, and will avoid the possibility of the property being diverted from its intended purposes ... I give credit to Mr Fox Pitt-Rivres for honest intention to do his very best to fulfil his father's wishes, but that creates at best only an imperfect obligation, and I must take it on the evidence that this would not have satisfied the father who desired to secure the maintenance of the museum and grounds. ... I propose to declare the construction of the will on the points mentioned and further to declare that it as been established to the satisfaction of the Court that the gifts to the son were made to Mr Fox Pitt-Rivers and were accepted by him for the express purpose that the museum and grounds should be maintained and used as they had been in the lifetime of the testator ... it remains to be determined what are "the objects of curiosity in my house in Rushmore which are intended to be placed in the said museum." ... The other question is what, if any, interest Lord Avebury and Mr Charles Hercules Read take in any of the property disposed of by the codicil. It is obvious that the testator intended them to occupy some position of trust ...

Afterword

Charles Hercules Read commented on this case at his Presidential Address to the Anthropological Institute in 1901

... General Pitt-Rivers is for us in this room a much more familiar figure, and his death makes a gap which will scarcely ever by entirely filled. ... In his museum at Farnham in Dorset is to be seen a large-scale model of every excavation he undertook, showing with the utmost precision the exact position of every object found, while the objects themselves were shown in cases near by. The museum contained many other things, however, besides the local relics, and it was always fascinating to hear the General explain his reasons for gathering together, in the heart of the country, collections of such variety and extent. By a recent judgment of the Court of Chancery it is now clear that the museum is to be kept up in the same way as during the General's lifetime. This, I may say, was his intention, but the Court ruled that some of his provisions were impossible. I have made no mention of the Pitt-Rivers Museum at Oxford, a gift from the General to the University, for this, under the charge of my friend Mr. Balfour, is now so well known as scarcely to need a reference. It differs from other museums not so much in its contents as in the method of arrangement. This certainly adds greatly to the interest of the objects, and is at the same time a fresh testimony to the originality of the General's ideas.

'Presidential Address [by C.H. Read] pp.18-19 delivered at the Anniversary Meeting of the Anthropological Institute of Great Britain and Ireland. 4th February, 1901'The Journal of the Anthropological Institute of Great Britain and Ireland, Vol. 31, (Jan. - Jun., 1901), pp. 9-19

Transcribed and edited by AP May 2013.