THE BISHOP'S BOND.

Auckland Star, Volume XXXIX, Issue 72, 24 March 1908, Page 4

THE BISHOP'S BOND.

APPEAL COURT, REVERSES ..JUDGMENT.: ■.'■':" (From-Our Special Correspondent.) r. ■:- • LONDON, February 14. \ The appeal of the Bishop of Dunediri against a judgment of Mr Justice Grantham was,heard this week in the Court of Appeal, before "Lords "Justices Vaughan Williams, Farwell, and Kennedy. 3?he appeal -was eventually allowed, and Mr,, JnstacerG-raiit.ham's decision: reversed. "The original action "was brought by the Rev.' J. D. Evans, of Wahnersley, near Bury, and Mr F. E. a solicitor,' of Chester, a≤ the executors of J. P. Penny, deceased, against the Most Rev Scmuel •Tarzatt, 2*evili, ;Bishop .of thin : edin, -New , eZaland, claiming alleged to be JiSie. ojq a bond.given hy" the defendant to 0.-.P. Penny,,^and--dated July-9th, , 1870. '■■''■'■■ , ;' : It appeared .thai the. .defendant, in 1862,. anarried :Mary! .Susannah Goojc Penny (the daughter of J. p. Penny), and" on August; 6th of. the same year, after her marriage to ihe defendant, ;Mrs .Nevfll. made.a will by ;which she appointed, a sum of £20,000 (to the income .of which she was entitled under the will of heir'grandmother, -Margaret Cook) husband, -the defendant, absolutely, in .default of issue. There was-no issue of. the marriage. MrsNeyilr's power, of pointment, under ; the will -of Margaret Cook was,subject to .the proviso that .appointment .made by -her in iavpur' «f 'J..P..:Penny, or any other-relation of ■hers -on' the paternal .side : ,the .fourth.degree pf-c6nsanguinity,sh,ould be absolutely void. ~lil '1870, prior ing tips country : Sew iZea-haid; JMa|s NevUl coa4nned..-by'-a codicil to her wijl of 01882 her power of apppintment ; in" fo-ebui- of .her: hnsband, and -the defendant gave ia bond to Mx Penny to pay' a sum of #10,000 at his wifpfs death; Mr pßenny giving a written jindertaking -that jthe bond should not.be -enforced, except 'tp tlie .es*ent of the money Jeft.a-t .-the absolute disposal ot the defendant by his' wife. Mrs 'kTevill -also- executed a bond rfor the payment of -£5000 -to the ,3etfendant's parents- in the .event of'Jier surviving her husband. Mr,J.'-P. Penny died in 1884, and Mrs Nevill on June 21; 1905, having made Jier last will in -1904, by which she -revoked -all .former: wills,! and appointed a 'few small amounts -ou+; of the, £:20i000 to other persons, and appointed .part of that sum to the .defendant ior life -only, ■ and the" balaiiceto him absolutely.' The plaintiff, E* IJ. EoberfcSj ,was:the.pephew,of J. j>. Penny,, and 4 had acted as .liis solicitor :in family■ •matters, and in .1870 was j employed -by the .defendant .and •Mrs Nevill -to carry, out tb.e arrangements to provide for their-respective families.

The defence iset' up at the trial was: First,- that the bond was' in .reality an escrpAy, having 1)6611 made to .meet 'csjdjbingencies which might arise-on the journey of the defendant; ;andLhis' l wife to iijJew Zealand; secondly, -that %h.e bond •was a fraud on the power of .apppjnl;ment; being one step in a scheme to .enable Mrs Nevill -to give money to her father, who was not entitled to bene.fi,t iinder ..the power of. appointment; thirdly, that the bond was invalid on the ground that, regard .being Jiad to the relationship between Mr ,F, IS. Roberts and Mr J. P. Penny, ,the defendant' had not had independent adyiee. Mr Justice Grantham held that the: bond was in ' tended to "be a binding and operative bond; thatttbere had been no fraud on the, ,ppKer of appointment;, and:;that there had been no breach on the part o.f Mr, Roberts, of, .duty aijisting put ; of: his fiduciary position towards the defendant, such as to justify the setting aside of the bond. '.He accordingly -gave judgment for the plaintiffs, and made a declaration that the defendant was liable >,to ;the plaintiffs under the bond to the extent of the amount of the property'left to , the defendant at his.absolute disposal by his late wife's will and. codicil, not exceeding the amount of £10,000-payable under the bond. - .-

Having heard arguments, by Mr Jenkins, K.C., Mr" 7. JUder .g.C, and i'lr G. M. Pitman fpr the appellant, and Mr Dickens, K.C., and; Mr Harold Morris for the respondents, their lordships allowed the appeal, and entered judgment for.the iefewdwit, -wrfcli «osts here -end.&elow.r.-"-- ■-•-.'-•■■.*■ v ; -- .-v :■■■■■■:■*>■:'■■•. 5 '