Penfold v Penfold
| Jurisdiction | England & Wales |
| Judgment Date | 09 November 1836 |
| Date | 09 November 1836 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 471
ROLLS COURT.
S. C. 5 L. J. Ch. (N. S.), 46; sub nom. Penfold v. Giles, 6 L. J. Ch. (N. S.), 4.
[685] giles v. giles. penfold v. penfold. Nov. 9, 1836. jÖ3Ö' [i953] P 27Jt i- j_ / [S. C. 5 L. J. Ch. (N. S.), 46 ; sub nom. Pen/old v. Giles, 6 L. J. Ch. (N. S.), 4.] A testator bequeathed the residue of his estate to his wife A. G. for her life, and the legatee, describing herself as A. G. widow, filed a bill against the executors for the administration of the estate; but, it appearing that J. P., the first husband of the legatee, was living at the time the ceremony of marriage ,was performed between her and the testator, and at the time of filing the bill, she filed a supplemental bill, describing herself as A. P. alias A. G., by her next friend, against J. P., for the purpose of making her husband a party to the suit. Held, that this was not such an alteration of the frame of the record as to render the evidence taken in the first cause inadmissible at the hearing of the two causes; and that the amended description of the :Plaintiff in the supplemental bill could not affect the liability of a witness examined in the original suit to be indicted for perjury, if he swore falsely. A false character, attributed by a testator to a legatee, will not affect the validity of the legacy, unless the false character has been acquired by a fraud which has deceived the testator; and where the testator and legatee have a common knowledge of an immoral or -criminal act, by which the legatee has acquired the false character, the rights of the legatee, as such, will not be affected, it being no part of the duty of the Courts of Equity to punish parties for immoral conduct, by depriving them of their civil rights. Thomas Giles, by his will dated the 26th of November 1830, gave all his real and personal estate to his brother Jeremiah Giles and John Buckton upon trust to sell his real estate, and out of the produce of such sale to pay off any mortgages which might be due at the time of his death, and to invest the residue of such prod uce and of his personal estate, after payment of his debts and legacies, in trust for his wife Ann Giles, for and during the term of her natural life, as a feme sole, and not liable to the debts, assignment, or control of any husband or husbands; and whose receipt alone, notwithstanding any coverture, should be a legal and good discharge to his trustees, to the intent that the yearly interest, dividends and profits might be a provision for the personal maintenance and support of his said wife Ann during her natural life; and that the same or any part thereof should not be subject to any claim whatever, or to any sale, alienation, charge, or incumbrance: and after her decease, in trust for his [686] brother Jeremiah Giles during the term of his life: and after his decease, for the only proper use and benefit of the three children of his said brother. And the testator appointed Jeremiah Giles and John Buckton executors of his will. The testator died on the 5th of April 1831, leaving the Plaintiff, described in his will as his wife Ann Giles, surviving him; and his will was proved by the executors named therein. In the year 1834, the Plaintiff, describing herself as Ann Giles, widow, filed her bill against the executors and trustees, and against the children of Jeremiah Giles, 472 GILES V. GILES 1 KEEN 687. praying that the testator's will might be established, and the trusts thereof performed, and that the usual accounts might be taken of his personal estate; and that the clear residue of the trust monies might be ascertained and invested for the benefit of the Plaintiff during her life. The bill alleged that the Defendants sometimes pretended that John Penfold, the first husband of the Plaintiff, was living at the time when the Plaintiff intermarried with the testator, and that, the Plaintiff not being the testator's wife, the bequests to her were void; whereas the Plaintiff charged the contrary, for that John Penfold was dead at the time of such intermarriage: and that even if Penfold were living, the same ought not to prejudice the Plaintiff's right under the will, inasmuch as she practised no fraud or imposition on the testator. The Defendants by their answer said, they were informed and believed, that in the year 1817, when the ceremony of marriage was performed between the Plaintiff and the testator, John Penfold her husband was living; and that he still was, at the date of their answer, living. [687] The Defendants went into evidence, by which it appeared that a deed of separation, dated the 2d of March 1815, was prepared between John Penfold of the first part, Ann Penfold his wife of the second part, and the testator Thomas Giles and another trustee of the third part; that the testator was cognisant of such deed, though he did not execute it, and that...
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