GOMPERTZ v. KENSIT. [1870 G. 16.] Marriage Act-4 Geo. 4, c. 76, s. 22-Undue Publication of Banns-Proof required of concurrence “knowingly and wilfully" by both Parties-Evidence -Costs of Trustee. A marriage solemnized after an undue publication of banns will not be held null and void under the provisions of the Marriage Act of 1823, unless it be shewn that both parties "knowingly and wilfully" concurred in such undue publication. Where an intending husband, then a minor, and desiring to have a secret marriage, gave instructions for the publication of banns, and in such instructions omitted two of his own Christian names and one of the Christian names of his intended wife (also a minor), and the names were entered with such omissions in the register of banns-there being no evidence of how the banns were actually published-and the names were, after the ceremony, signed by the respective parties, with the same omissions, in the register, there being no further evidence besides that of the husband, who deposed that he omitted the names, not thinking or believing he was acting contrary to law, and for brevity's sake only, and the marriage having been reputed good for more than thirty years: Held, that the husband was not proved to have committed any offence against the statute. The husband deposed that, prior to the marriage, the intended wife neither directly nor indirectly took any step towards the publication of the banns, but left the matter entirely to him. There was no evidence of knowledge on her part beyond her signature of the marriage register with the omission' above mentioned, that not being her usual form of signature. She being dead, and the marriage having been reputed good throughout her life-that is to say, for upwards of twenty-four years: Held, that the Court could not impute to the wife knowledge of the omission of the name in the instructions for publication of banns. Costs disallowed to a trustee severing in proceedings from his co-trustee. MOTION FOR DECREE. Sarah Broadhurst, spinster, by her will, dated the 16th of May, 1810, bequeathed all her shares in the Lambeth Waterworks to Thomas Robert Mauley upon trust to pay the yearly income unto her nephew, Louis Armand de Grenier, during his life, and after his decease to his wife, Adelaide Augustine de Grenier, for her life, and after her decease unto testatrix's great-niece, Georgiana Adelaide Harvey (daughter of Robert Valentine Harvey, of the Custom VOL. XIII. 2 E 2 V.-C. B. 1872 Jan. 23, 24. V.-C. B. 1872 GOMPERTZ v. KENSIT. House, London), during her life for her separate use; and the testatrix declared that after her decease the trust premises should be in trust for all and every the children and child of her said great. niece who, being a son or sons, should attain the age of twentyone years, and who, being a daughter or daughters, should attain such age, or should respectively marry under that age, equally to be divided between such children, if more than one, as tenants in common; and if there should be but one such child, then the whole for that one. And the testatrix, after appointing the said Thomas Robert Mawley her executor, gave all the residue and remainder of her estates and effects of every description unto her nephew, Louis Armand de Grenier. The testatrix died in 1841, and on the 23rd of February in that year her will was duly proved by T. R. Mawley. On the 5th of July, 1841, Georgiana Adelaide Harvey went through the ceremony of marriage with the Plaintiff, William Frederick Louis Gompertz. On the 6th of March, 1844, T. R. Mawley died, having by will appointed the Defendant Henry Kensit his executor, by whom his will was duly proved. On the 25th of March, 1844, Louis Armand de Grenier died, having appointed the same Henry Kensit his executor. On the 9th of January, 1866, Amy Georgiana, only child of Mr. and Mrs. Gompertz, married Stephen Spring, and by a settlement executed a few days previously, she being then of age, her reversionary interest in the waterworks shares, expectant on the death of Mrs. de Grenier, was settled, the trustees of the settlement being the Plaintiff, her father, and the Defendant Oliver Murphy. On the 17th of January, 1866, Georgiana Adelaide Gompertz died, leaving surviving her the Plaintiff, her husband, and Mrs. Spring, her only issue. On the 15th of March, 1869, Mrs. de Grenier, the tenant for life, died. This bill was filed on the 15th of February, 1870, by W. F. L. Gompertz against Henry Kensit and Oliver Murphy, stating the above facts, and that, upon the death of Mrs. de Grenier, the Plaintiff and the Defendant Murphy applied to the Defendant Henry Kensit to transfer the waterworks shares to them, and that "he was V.-C. B. 1872 v. about to do so when he discovered" that the marriage of the Plaintiff with his late wife "was solemnized between them by the names of Frederick Gompertz and Adelaide Harvey, instead of by GOMPERTZ their respective full names of William Frederick Lewis Gompertz and Georgiana Adelaide Harvey, and in consequence thereof declined" to transfer the shares to the Plaintiff, except under the order of the Court. The bill then alleged that "the fact is, that the marriage was so solemnized, but the omission of the aforesaid Christian names was not with any mala fides, or with any wrong meaning or improper motive; but such omission was by accident and mistake, and was not wilfully made or done by either of the parties, or any other person, or even with the knowledge of the late Georgiana Adelaide Gompertz;" also that the marriage was ever afterwards recognised by the parents and guardian of W. F. L. Gompertz and G. A. Harvey; that they lived together till the death of the latter as husband and wife; that no question, during Mrs. Gompertz's life or afterwards, until the transfer was about to be made, was ever raised as to the validity of the marriage; and that the Plaintiff and the Defendant Murphy submitted that the marriage was a good and valid marriage, and at all events could not, after the death of one of the parties, be questioned or invalidated. The bill then alleged that the Defendant Henry Kensit, as executor of the testatrix's residuary legatee, submitted that the marriage was invalid, and that as in that case the said Georgiana Adelaide Harvey died without issue, he, as such representative, was entitled to the shares. The bill also alleged that the Defendant Oliver Murphy, as such co-trustee and assign with the Plaintiff as aforesaid, had been requested to concur with the Plaintiff in taking the present proceedings, but refused to do so, and had consequently been made a Defendant. The bill prayed that the unperformed trusts of the will might be carried into execution under the direction of the Court; that it might be ascertained and declared who was entitled to the shares and the income since the death of Mrs. de Grenier; and that such shares and income might be transferred and paid accordingly; and for an account of the income. KENSIT. V.-C. B. 1872 GOMPERTZ v. KENSIT. On the 8th of April, 1870, the Defendant Murphy filed an answer, in which he admitted, though having no personal knowledge thereof, the statements in the bill, except that an application was made by him as therein alleged. He said he did not submit that the marriage was good and valid. He admitted his co-trusteeship, and that he had been requested to join the Plaintiff, and said that he refused so to do, or to take any proceedings in Chancery in respect thereof, or to allow his name to be used as Plaintiff, because he was and still was "unacquainted with the facts alleged" by the bill. He further said he was a clergyman of the Roman Catholic Church, that he was always ready to discharge the duties of his trusteeship, but that, being a comparative stranger to the parties, and "wholly ignorant of all the matters therein stated or mentioned," he was unwilling to assume the responsibility of filing a bill. On the 20th of April, 1870, the Defendant Henry Kensit filed his answer, in which he said that, on being applied to for transfer of the shares, he expressed his willingness, on receiving evidence of the applicants' title; whereupon the Plaintiff referred him to St. Pancras Church, from the incumbent of which he obtained a certified copy of the register of the marriage. From this it appeared that the names of the parties married were Frederick Gompertz and Adelaide Harvey, both "minors," he residing at "Pitt Street," and she at "Do." Defendant also obtained a copy of the entry in the register of banns, in which the parties were described in like manner, each by two names only. He further said that he found, in a copy of the Morning Post of the 17th of July, 1841, a notice of the marriage, in which all the Christian names of both parties were given. He believed that Miss Harvey was at the time an orphan, and said she was residing under the care of Robert Thomas Mawley, her step-grandfather, and, he believed, her only living relative, except her maternal uncle, Louis Armand de Grenier. She had been maintained and educated by Mr. Mauley, with whom the defendant was very intimate. Mr. Mawley always called her Georgiana, never Adelaide ; and Defendant believed she herself always used the former name and not the latter. Defendant never heard her called Adelaide, and believed that the name " was, in fact, dormant." He exhibited several letters of the Plaintiff, and several receipts signed by him and by Miss Harvey. None of them were signed either in the name of "Frederick Gompertz" or "Adelaide Harvey." Defendant said that shortly after the marriage he heard of it from Mr. Mauley, who told him that the Plaintiff had run away with Miss Harvey, who was then about eighteen or nineteen, from the place where Mr. Mawley had placed her, and had married her without his consent. Mr. Mawley "then, and ever afterwards," expressed himself much displeased thereat. He believed Miss Harvey was not then living, and had never lived, in Pitt Street. He alleged that the marriage was a clandestine marriage, and solemnized without due publication of banns; that he believed the said undue publication was knowingly and wilfully made by the Plaintiff and Miss Harvey, and with a view to conceal the marriage; that the marriage was null and void to all intents and purposes; and that the trustees had no title to the shares; but said he was ready and willing to transfer the shares upon their establishing their title. Defendant admitted that the parties always lived together, and that he, in ignorance of the facts, treated them as husband and wife. He believed the facts had been now, for the first time, discovered. The Plaintiff, in an affidavit filed on the 26th of July, 1870, said that in 1841 he became acquainted with Miss Harvey at a dinner party at his father's house, to which she and a friend of hers named Hutchinson, at whose house, in Upper Montague Street, she was staying on a visit, were, with Mr. Mawley's consent, invited by Plaintiff's mother. Plaintiff and she afterwards met together several times, and he made her an offer of marriage, which she accepted, and he thereupon "arranged with her to do all that was requisite with reference to the publication of banns and whatever else was necessary to be done," and that she "neither directly nor indirectly made any suggestion or took the most remote step as to the publication of banns or otherwise," but left the matter entirely to him. He was then nineteen, and she about eighteen or nineteen. The banns were published by Plaintiff's sole direction and instructions, V.-C. B. 1872 GOMPERTZ V. KENSIT. |