Gurney v Gurney
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1863 |
| Date | 05 May 1863 |
| Court | High Court of Chancery |
English Reports Citation: 71 E.R. 180
HIGH COURT OF CHANCERY.
S. C. 32 L. J. Ch. 456; 9 Jur. (N. S.) 514; 8 L. T. 380; 11 W. R. 659. Disapproved, Cooke v. Cooke, 1865, 4 De G. J. & S. 710; 46 E. R. 1095.
Declaration of Illegitimacy. Illusory Trust.
180 GURNEY V. GURNEY 1H.&M.413. [413] gurney v. gurney. April 29, May 5, 1863. [S. C. 32 L. J. Ch. 456 ; 9 Jur. (N. S.) 514; 8 L. T. 380 ; 11 W. E. 659. Disapproved, Cooke v. Cooke, 1865, 4 De G. J. & S. 710; 46 E. R. 1095.] Declaration of Illegitimacy. Illusory Trust. The Court will not refuse to entertain a suit for the execution of the trusts of a settlement, where the settled fund actually exists, merely on the ground that the settled fund is so small as to be of no importance to the cestui que trust, and that the settlement was really made to raise a different question (which the Court would not have directly determined) by a side wind. Nor will the Court allow such a question to be evaded by a counter settlement. But, semble, the Court would not entertain such a suit at the instance of a stranger, nor if it appeared to have been instituted with a malicious motive. This was a suit to carry out the trusts of a settlement made on the children of Mr. and Mrs. John Henry Gurtiey under the following circumstances :- John Henry Gurney, of Catton Hall, Esq., M.P., was married in 1846 to Miss Mary Jary Gurney. In December 1859 Mrs. Gurney eloped with one Taylor, and left England with him; and they remained abroad till September 1860. On the 31st December 1859 John Henry Gurney instituted a suit in the Court of Matrimonial Causes for the dissolution of his said marriage, and obtained a decree nisi on the 13th of February 1861, which was made absolute on the 2M of May 1861. On the 4th of May 1861 Mrs. Gurney was confined of a full-grown male child, the Defendant, William Anselm Gurney. Since the dissolution of her marriage with John Henry Gurney, Mary Jary Gurney had married Taylor. In the month of January 1862 John Henry Gurney transferred a sum of 2000 3 per cents., into the names of trustees, " upon trust for all arid every the children now living of the said marriage between the said John Henry Gurney and Mary Jary Gurney, and their respective executors, administrators and assigns," as tenants in common ; and the deed of settlement of the said trust fund provided that it should be "incumbent on the trustees or trustee for the time being to pay and apply the whole of the interest, dividends and income " of the settled fund for the maintenance and education of the children entitled thereto respectively : and that the trustees might either so apply the income themselves, or might pay it to the respec-[414]-tive guardians of the children, without being bound to see to its application. The bill was filed by the two infant children of the marriage, born before the said elopement, by their father as their next friend, against the infant, William Anselm Gurney, and the trustees of the settled fund, for the purpose of having the trusts thereof carried into execution. It was admitted that the bill had been really filed to raise the question whether the Defendant, William Anselm Gurney, was or not to be taken as a legitimate child of the marriage of Mr. and Mrs. Gurney : and it was further asserted, and not denied, that the real object of the suit was to determine prospectively whether the Defendant, W. A. Gurney, would or not be entitled to share in a sum of 400,000 arid upwards, to which Mary Jary Gurney's children would, under her father's will, become eventually entitled amongst them. The bill averred that the Defendant, W. A. Gurney was not issue of the marriage, but an illegitimate child of Mary Jary Gurney; and the Plaintiffs therefore prayed for a declaration that they were the only children of the said marriage, and the only persons entitled to any participation in the settled fund. The guardian of the infant Defendant offered to bring into Court a sum of 1000, to be applied for his benefit in such manner as the Court should direct; thus enabling the trustees of the settlement, without breach of trust, and without prejudice to 1H.&M.415. GURNEY V. GURNEY 181 any question, to apply the entire income of the settled fund for the benefit of the Plaintiffs. The evidence adduced was very voluminous, and a great number of witnesses had been examined and cross-examined before a special Examiner; and the result was to lead His Honour to the conclusion that non-access within the time during which Mr. Gurney might have been the father of the child had been proved as a matter of fact. [415] Sir Roundell Palmer, S.-G., Sir Hugh Cairns, Q.C., Mr. Aspland and Mr. Hutton, for the Plaintiffs. This is a clear case of non-access. The Court cannot hesitate to pronounce that Mr. Gurney could not have been the father of this child, and therefore that the Plaintiffs are entitled to the benefit of this trust futid in equal moieties. The old rule of presumption of access never applied when the parties had been divorced ft mensa et tlurro (Hubback on Evidence of Succession, 412); and the proceedings pending in the Court of Divorce, coupled with the absence of any plea of condonation, amounted to the same thing. [They...
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