pied before the condoned offence was committed. When the husband is restored to his original position the law implies forgiveness, but forgiveness of a peculiar character, because it is coupled with the condition that the husband shall not in future be guilty of any marital offence. The whole doctrine of condonation a very useful doctrine no doubt - is a structure of the Courts founded on the necessities of the case. But the question does not arise here, for the parties have entered into a written agreement, and whatever ground there may be for saying that the wife forgave the husband must be found in the agreement itself, which supersedes any presumption of law, and the conduct of both parties must be referred to that agreement.

But passing by that consideration for the moment, and dealing with the case as one of ordinary condonation, the question arises whether the conduct of the wife was such that the Court is bound to draw from it the conclusion of condonation. It seemed to be supposed that everything depended on the question whether there had been sexual intercourse between the parties. The bulk of the evidence on that question was quite contradictory; but if I were bound to come to a conclusion upon it, I should be of opinion that there was conjugal intercourse between them on the occasions when they met. That fact, without explanation, might perhaps — although I do not say it would amount to condonation. Assuming, however, that there was condonation, the answer of the petitioner is complete. She says: "It is immaterial whether I did or *did [312 not condone the incestuous adultery committed in 1868, because my husband was guilty of adultery in 1869;" and the adultery in 1869 was proved, and not denied. In answer to this it was argued that incestuous adultery which had been condoned could not be revived by ordinary adultery. That depends on the condition which the Court implies in cases of condonation. When a wife condones a husband's incestuous adultery, what is the condition upon which the condonation is to protect him against a suit? The condition must be the same as in all other cases of condonation, namely, that the husband shall not be guilty of adultery or of any other marital offence. When incestuous adultery is condoned, I think the condition is not merely that the husband shall not again commit incestuous adultery, but that he shall be true to his marriage vows.

Having dealt with the supposed condonation, I recur to what I have already indicated to be the true question in the case, namely, the rights of the parties under the written agreement.

The substance of the agreement, in the first sheet, is, that the petitioner will forgive the respondent and forbear to sue for a divorce, on the condition that he will retire from the partnership. This he did, either on the same or the very next day. He said he would rather give up his partnership than his wife, and he signed a deed of dissolution of partnership, receiving 1000l., which probably did not represent the value of his interest in the business. He paid a price- and no doubt a considerable price to obtain the agreement that she would not sue him in this court; and if the agreement had stopped there, it is quite clear that, independently of any question of condonation, the petitioner could not have been entitled to found a suit upon the incestuous adultery, for she had bargained away her right to do so, and the bargain was one which the Court would uphold. But the second sheet of the agreement, which was signed at the same time, begins thus :-"Note.- The agreement or conthus:. tract on page 1, of this sheet binds me only so long as you remain true to me in love and duty," &c.; and it ends: "I give you the hope of regaining me, as an incentive to good and useful effort; but should I not be satisfied with your future conduct, this hope gives you no claim." The first sentence in this second page seems to me to be the most important part of the 313] *agreement. It provides that the agreement contained in the first page shall only be binding on the wife as long as the husband remains true to her. Without saying what other condition these words may include, I think it would be impossible for the Court to hold that they do not include a condition that he shall not be guilty of adultery. I cannot say that the respondent, having been guilty of adultery, did remain "true to the petitioner in love and duty." I hold therefore that the husband, by his adultery in the summer of 1869, set the wife free from the agreement which she entered into in 1868, and, consequently, that she is entitled to a divorce on the ground of the incestuous adultery committed in 1868.

I am bound to add, that my mind has not been free from doubt on the case. The husband gave up a lucrative position on the hope held out by the wife that she would pardon him,

and I cannot find that he did anything up to the time when she refused to continue to see him to forfeit his claim under the agreement, or to justify her in refusing to carry out the arrangement contained in the agreement. On the 19th of April matters were brought to a crisis; but up to that time the respondent had done nothing to justify her in the course she then took. But afterwards he committed adultery; and I feel bound to hold that his adultery deprived him of what would otherwise have been a good defence to the suit.

Decree nisi, with costs.

Attorneys for petitioner: Blakeley & Beswick.
Attorney for respondent: J. B. Wheeler.

Improper conduct which would not justify separation, revives the former offense; Burr v. Burr, 10 Paige, 20; affirmed Ct. Errors, 7 Hill, 207; Whis pell v. Whispell, 4 Barb., 217; 2 Bish. Mar. and Div. (4th ed.), §§ 53-66.

And even cruelty will revive adultery, so as to entitle the plaintiff to a divorce on account thereof; 2 Bish. Mar. and Div. (4th ed.), S$ 57, 58, explaining the earlier cases in New York; Hofmire v. Hofmire, 3 Edw. Ch., 173, 7 Paige, 60; Johnson v. Johnson, 14 Wend., 637, reversing, 4 Paige, 460; Gardner v. Gard ner, 2 Gray, 434, 442.

And although cruel treatment be not sufficient to justify a divorce on account of prior adultery, it may be given in evidence in support of the charge for the new offense; Johnson v. Johnson, 4 Paige, 460, 14 Wend., 637.

There never was the slightest question if the offense was of a similar character; 2 Bish. Mar. and Div. (4th ed.), $58.

The court will connect the whole of his conduct in order to form a correct judgment; 2 Bish. Mar. and Div. (4th ed.), § 59.

Nov. 21, 1871.

*CHARTER V. CHARTER.

Law Reports, 2 Probate and Divorce, 315.

[315

Will-Appointment of Executor - Latent Ambiguity — Parol Evidence.

The testator appointed as his executor his son Forster Charter. He had no son of that name, but two sons named William Forster Charter and Charles Charter.

The Court, on evidence of the circumstances under which the testator wrote the will, and of the position of the parties about him, and also on consideration.

of the contents of the will itself, determined that the latter was the person denoted by the will, and decreed probate to him.

It would seem that in such a case the Court may receive parol evidence of the intention of the testator.

FORSTER CHARTER, of Woodburn Hill, Northumberland, farmer, died on the 8th of August, 1869, having duly executed 316] a will, *bearing date the 23d of June, 1859. The will was in the following terms :

“I hereby nominate and appoint my son Forster Charter as the executor of this my last will and testament, and to him I give, devise, and bequeath all my messuages, &c., for his own use and benefit, and for the use and benefit of the persons hereinafter to be named. My will is, that my executor, Forster Charter, shall annually pay to Elizabeth, my wife, the sum of 107. sterling, and at the same time allow my said wife her ordinary maintenance, so long as they reside together in the same house; but should they think proper to live separately, then my will is that, besides paying my wife the above-named annuity of 10., the said Forster Charter shall allow my said wife, rent'free, the use of the cottage at Woodburn Hill now occupied by Daniel Wood, and shall also supply her, gratis, with a reasonable quantity of bread, corn, potatoes, coals, butter, cheese, and garden produce. Also my will is, that should any difference of opinion arise between my said executor and my said wife with regard to the quantity or quality of the above bread, &c., the matter shall be laid before Walter Davison, shoemaker, and his decision shall be final. Moreover, my will is, that if my daughter Barbara Forster should at any time be sick or in want, my said executor shall afford her such pecuniary and other aid as she may require, and his own circumstances may permit, the kind and amount of aid to be determined upon by the above-named Walter Davison."

Probate of this will was granted on the 16th of September, 1869, to William Forster Charter, the elder son of the deceased, but such probate was called in by a citation dated the 24th of August, 1870, at the instance of a younger son of the deceased, Charles Charter, who claimed to be the person appointed executor in the will of the deceased. The deceased had had a son called Forster Charter, who died in infancy many years before the date of the will. At that time, and also at the time of his

death, he had two sons living, William Forster and Charles, and an unmarried daughter, Barbara (in the will misnamed Barbara Forster). William Forster Charter was the elder son, and up to the year 1850 usually resided with his father. In that year he set up for himself as a butcher at Cleator Moor, Cumberland, about 100 *miles from Woodburn Hill, and [317 in 1853 he emigrated to Australia, from whence he returned in 1856, when he again established himself at Cleator Moor, and has continued to reside there from that time. He was never addressed or known by his father or family by the name of "Forster," but always as William. Charles Charter, the younger son, with the exception of a short period in 1859 and 1860, about the time the will was executed, lived with his father and mother at Woodburn Hill from his boyhood until his father's death, and worked for and assisted his father (without wages) in managing the farm. Affidavits were filed from members of the family and independent witnesses, setting out declarations of the testator made at the time of and subsequent to the date of the will, and almost to the day of his death, that Charles Charter was his heir, and that he had not left, and would not leave, anything to his elder son. The reading of these declarations was objected to on behalf of the defendant.

Dr. Tristram, and Pritchard, appeared for the plaintiff Charles Charter. [They referred to Wigram's Extrinsic Evidence, prop. 5; Camoys v. Blundell (); Douglas v. Fellows.(2).]

Dr. Spinks, Q.C., and Bayford, for the defendant William Forster Charter. [They cited Jarman on Wills, 3d ed., p. 401; Doe d. Gord v. Needs (3); Doe d. Morgan v. Morgan (); Jones v. Newman (5); Williams on Executors, 6th ed., p. 1072; Doe v. d. Hiscocks v. Hiscocks (6).]

Cur. adv. vult.

May 13th. LORD PENZANCE. The question raised in this case is somewhat peculiar. The deceased appointed as his executor his son, Forster Charter. It turns out that he had no son of that name; his eldest son was named William Forster Charter, his second son Charles Charter. It is beyond dispute, that (*) 1 C. & M., 235.

(1) 1 H. L. C., 778.

(2) Kay, 114; 23 L. J. (Ch.), 167. (3) 2 M. & W., 129.

(*) 1 W. Bl., 60.
(*) 5 M. & W., 363.