ACTION AGAINST BISHOP NEVILL.

New Zealand Herald, Volume XLV, Issue 13708, 26 March 1908, Page 8

ACTION AGAINST BISHOP NEVILL.

IN COURT OF APPEAL,

REVERSAL OF LOWER COURT'S JUDGMENT. [Kltn.M Oim OWN COItUKSJPONJIENT.] LONDON, February 14. Tins week the. appeal of the Primate of Now Zealand against the judgment of Mr. Justice Grantham in the Lower Court, in the case of Evans versus Ncvill was argued before the Court of Appeal. Lords Justices Vaughan Williams, Farwell, and Kennedy bitting to hear the appeal. The case was originally tried in May last year before Mr. Justice Grantham without a jury. The action was brought by the Lev. J. D. Evans, clerk in holy orders, and Mr. F. F. Roberts, a solicitor in practice at Chester, as executors of James Parker Penny, deceased, against the Most Rev. Samuel Tarratt Ncvill, Bishop of Dunedin, New Zealand, claiming the sum. of £10,000, alleged to he duo on a bond given by the defendant to J. P. Penny and dated -Inly 9, 1870. The defence was that the plaintiff, F. E. Roberts, as solicitor for the defendant, acted in breach of his fiduciary relation to the defendant and acted in concert with J. F. Fenny to induce the defendant to sign the bond, and failed to explain to him its nature and contents, and that the bond was a fraud upon a power of appointment created by will, and that it was made to provide for a eon-

tiugency which had not, happened. It appeared that in the year 1862 the defendant married Mary Susannah Cook Penny, the daughter of Mr. .1. P. Penny, and that on August 6 of the same year, after her marriage to the defendant, Mrs. Nevill made a will by which she appointed a sum of £20,000, to the income of which she was entitled under the will of her grandmother, Margaret Cook, to her husband, the defendant, absolutely in default of issue. There was no issue of the marriage. Mrs. Nevill' power of appointment, under the will of Margaret Cook, was subject to a proviso that any appointment made by her in favour of J. P. Penny or any other relation of hers on the paternal side within the fourth degree of consanguinity should be absolutely void. At the date of her marriage Mrs. Nevill executed a deed whereby an annuity of £500 out of property other than that which passed under the will of Margaret Cook was to be paid to her lather during his life, and after his death to her stepmother and sisters. In 1070 the defendant and his wife contemplated a voyage to New Zealand, and they determined to set their affairs in order before their departure and to arrange for the distribution of their estates in case anything should happen to them in the immediate future. Mrs. Nevill confirmed by a codicil to her will of 1862 her power of appointment in favour of her husband, and the defendant gave a bond to Mr. Penny to pay a sum of £10,000 at; his wife's death. At the same time Mr. Penny gave a written undertaking or covering letter that the bond should not bo enforced except to the extent of the money left at the absolute disposal of the defendant by his wife. Mrs. Nevill also executed a. bond for the repayment of £5000 to the defendant's parents in the event of her surviving her husband. Mr. J. P. Penny died in the year 1884 and Mrs. Nevill on June 27, 1905, having made her last will in 1904, by which she revoked all former wills and appointed a few small amounts out of the £20,000 to other persons, and appointed part of that sum to the defendant for life only and the balance to him absolutely. The plaintiff, ¥. E. Roberts, was the nephew of Mr. J. P. Penny, and had acted as his solicitor in family matters, and in 1870 was employed by the defendant and Mrs. Nevill to carry out the arrangements to provide for their respective families. The defence set up at the trial was, first, that the bond was in reality an escrow.

having been made to meet, contingencies which might arise on the journey of the defendant' and his wife to New Zealand; secondly, that the bond was a "'fraud on the, power of appointment," being one step in a scheme to enable Mrs. Nevill to give money to her father, who was not entitled to benefit under the power of appointment: thirdly, that, the bond was invalid on the ground that, regard/ being had to the relationship between Mi' F. E. Roberts and Mr. J. 1. Penny, the defendant had not had independent advice. Mr. Justice Grantham was of opinion that the bond was intended to be a binding and operative one; that there had been no fraud on the power of appointment ; and that there had been no breach on the part of Mr. Roberts of duty arising out of his fiduciary position toward the defendant such as to justify the setting aside of the bond. The learned judge accordingly gave judgment for the plaintiffs and made a declaration that the defendant was liable to the plaintiffs under the bond sued upon 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. . The Court allowed the appeal and entered judgment for the defendant, disagreeing with the judgment of Mr. Justice Grantham, and holding that there had been what, was known to the law as a " fraud upon the power." and, further, that the bond had been delivered as an escrow.