Davis v Davis
| Jurisdiction | England & Wales |
| Judgment Date | 16 July 1830 |
| Date | 16 July 1830 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 248
HIGH COURT OF CHANCERY
[645] DAVIS r. davis. Roll-*. July 16, 1830; L. C., Noe. 16, 26, 1831. A direction in a will, that the testator's brother should be his executor to arrange, dispose of, and settle his affairs, and the appointment of the brother to be the guardian of the testator's daughter, an only child, who was afterwards discovered to he illegitimate does not amount by implication to a bequest of the personal estate in favour of the daughter. The testator in this cause made his will in the following words :-" It is my will that my brother, Samuel Davis, be my executor, to arrange, dispose of, and settle all my affairs, and I appoint him guardian to my daughter Anna Maria." The daughter, Anna Maria, was the testator's only child ; and, during his life, no doubt as to her legitimacy had been entertained by him or any other1 person : but, after his death, it was discovered that she was illegitimate, in consequence of the formalities required by the law, as it then stood, not having been duly observed on the marriage of the testator and her mother. Samuel Davis, the In-other, was one of the testator's next of kin. The question in the cause came ultimately to be, whether by the will a gift of the-testator's personal estate to his daughter was to be implied. Mr. Tiuney, in support of the implication, cited Atkinson v. Paice (1 Bro. C. C., 91) ;, Peat v. Powell (1 Eden, 479 ; Amk, 387)'; Doe dem. Wight v. (Jumlall (9 East, 400),. and Tomkins v. Toiukins, referred to in that case. Mr. Bickersteth and Mr. Lynch, contra. There may probably be enough in this will to shew that the testator did not mean his brother to take his property beneficially, and that the executor was to be [646] a trustee for the next of kin. But that will not assist the Plaintiff's case; and there is no circumstance from which an inference specifically in her favour can be deduced, unless it be that the testator has appointed his brother her guardian. This appointment is ineffectual; and how an unavailing attempt to appoint a guardian to a natural child can operate as a gift to, that child of the whole of the testator's personalty cannot easily be conceived. the master of the rolls [Sir John Leach]. It is plain that it was not the-intention of the testator that his brother should take a beneficial interest, but that he should only arrange and settle his affairs : and, from his appointment as guardian to the daughter, it is to...
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