Зображення сторінки

ed, as to impose a natural or moral obligation on the one to provide for the other, the usual presumption of a resulting trust is not then admitted. On the contrary, the purchase is presumed to have been made for the nominee's personal benefit, and with a view to discharge the obligation of which he is the object (a)(1).

The persons for whom the law considers a man [*]morally bound to provide, are those who, by nature and religion, are taught to look to him for support. These are a wife and children only(b); though whether the latter be legitimate or illegitimate, seems immaterial(c). Grandchildren, except when the father is dead(d), do not come within the principle(e) : much less nephews and nieces, whose pretensions have in truth scarce a colour of right.().

Whether a purchase be made in the name of a child solely, or in his name jointly with that of the parent, or jointly with that of a stranger, the presumption of an advancement equally obtains. In the latter case,

(a) See Scroop v. Scroop, 1 (d) Ebrand v. Dancer, 2 Cha. Cha. Ca. 28; Shales v. Shales, 2 Ca. 26. Freem. 252; Finch v. Finch, 15 (e) 3 Atk. 508. See also Lloyd Ves. 43, 50 ; Murless v. Franklin, v. Read, 1 P. Wms. 607; 1 Eq. 1 Swan. 13; also 8 Ves. 199.

Abr. 382. (b) 8 Ves. 199.

( See Lamplugh v. Lamplugh, (c) Beckford v. Beckford, Lofft. 1 P. Wms. 111; Goodright v. 490; 2 Fonb. on Eq. 5th edit. Hodges, 1 Watk. on Cop. 227. 123 n. (i)

(1) Hamilton v. Thomas, 5 Hay. 137. Jackson ex dem. Benson v. Matsdorf, 11 Johns. 91. Stewart v. Riggin, 2 Har. & Gill. 114.

the stranger is from the first a trustee for the child(a): and in that of a jointenancy with the father, though the father takes, of course, an immediate interest in a moiety, yet unless a severance be made, or his creditors set up a claim(b), the whole property will survive to the child beneficially(c). . Nor does the circumstance of the provision not being immediate alter the rule : should the interest be reversionary only(d), the child, [*]notwithstanding, will take. And accordingly, in one case, where a grant of copyholds demisable for lives successivè, was, on renewal, made to a man, his wife, and son, for their lives in succession, the son was adjudged entitled to the reversion absolutely, although by the custom the nominees in remainder always held in trust for the persons who paid the fine (e). Indeed a purchase made in a child's name is considered so strongly indicative of an intention to advance that child, that if the purchase money be not wholly paid by the father in his life-time, the part unpaid will be ordered to be discharged out of his personal estate for the benefit of the child. (f).

As, however, the presumption in favour of an advancement depends on the parents' obligation to provide, and that obligation supposes a provision yet

(a) Lamplugh v. Lamplugh, 1 v. Scroop, 1 Cha. Ca. 28. See P. Wms. 111. But it should be also Back v. Andrew, 2 Vern. mentioned, that a purchase in the 120. name of a child, on a joint advance (d) See 15 Ves. 50 ;2 Eden, 15. by the father and a stranger, is not (e) Dyer v. Dyer, 2 Cox, 92. a presumed provision for the child. See also Murless v. Franklin, 1 15 Ves. 51.

Swans. 13; Swift y. Davis, 8 (6) Stileman v. Ashdowne, 2 East, 355, n. Atk. 477.

(See Redington v. Reding(c) See 2 Swans. 599 ; Scroop ton, 3 Ridgw. P. C. 106, 201.

unmade; the claim of the child may be encountered by evidence, showing that at the time of the purchase he was properly preferred, and that, therefore, the obligation was already discharged.(1) But for this purpose the evidence must go to prove, that the provision made was such as, in reason and propriety, the child might expect. For, although as Lord Nottingham said, where a son is married in the life-time of his father, and by him fully advanced and emancipated, a purchase by the father in the name of that son, is as much a trust for the father as if made in the name of [*]a stranger, because all presumptions or obligations of advancement have ceased; yet where the son is not advanced, or but advanced, or emancipated, in part, in such case there is no room for any construction of a trust by implication : consequently, without clear proof to the contrary, the purchase must be taken to be an advancement(a). On this distinction the determination in all the subsequent cases has turned. If an estate contracted for, be conveyed to a child already fully preferred, the purchase belongs beneficially to the parent(b): but should the child be unprovided for, or only provided for partially, the equitable as well as legal right will be held to remain with him(c)(2).

(a) Finch, 341; 2 Swans. 600. (c) Lady Gorge's case, Cro. Car. See also in Elliot v. Elliot, 2 550, cited ; Scroop v. Scroop, i Cha. Ca. 231-2.

Cha. Ca. 27; Shales v. Shales, 2 (b) Pole v. Pole, 1 Ves. 76. Freem. 252; 1 Eq. Abr. 382, S.

(1) And see Sampson v. Sampson, 4 Serg. & Rawle, 329. Stewart v. Riggin, 2 Harr. & Gill. 114.

(2) In Connecticut it has been held that a deed from a father to his son, purporting to be in consideration of love and affection and of

With respect to the quantum of provision which constitutes an advancement, and discharges the obligation of the parent, it is difficult to lay down any exact rules. The solution of the question must always mainly depend on the condition in life, circumstances, and family of the parent. In which view, a mere sufficiency for support will, in some cases, be deemed enough ; whilst, in others, the providing of a large [*]establishment only will satisfy the obligation. In all cases, however, the child must be relieved from dependence on his father for necessaries; until this be done, the claim of the former, and the duty of the latter, clearly subsist. Therefore a gift not immediately productive, as of a reversionary interest, will be insufficient to repel the presumption(a). To which may be added, that although a child, prior to an estate being bought in his name, appear to have been sufficiently advanced; yet, if it can be shown, that the father judged otherwise, equity will consider itself bound by that opinion(b).

The presumption in favour of the child


also be

C.; Lord Gray's case, 2 Freem. 6;. Lamplugh v. Lamplugh, 1 P.
Finch, 338; 1 Cha. Ca. 296 ; 2 Wms. 111; Taylor v. Taylor, 1
Swans. 594, s. C. ; Jennings v. Atk. 386. In the six latter cases
Selleck, 1 Vern. 467 ; Back v. An- the child was an infant. See also
drew, 2 Vern. 120 ; Prec. Cha. 1, 2 Freem. 128, c. 151.
S. C.; Bateman v. Bateman, 2 (a) Lamplugh v. Lamplugh, 1
Vern. 436; Dyer v. Dyer, 2 Cox, P. Wms. 111.
92 ; Finch v. Finch, 15 Ves. 43 ; (b) Redington v. Redington, 3.
Murless v. Franklin, 1 Swans. 13; Ridgw. P. C. 106.
Mumma v. Mumma, 2 Vern. 19;

five dollars, is to be presumed to have been made by way of advancement. Hatch et al v. Straight, 3 Con. R. 31.

met by evidence of the parent's intention (1). But such intention must clearly and unequivocally appear. Parol declarations to show that the child was meant to take merely as trustee, will not, it seems, be sufficient(a). A written document signed by the party, which is the proper demonstration (b), or some other act equally conclusive in its nature, are perhaps alone available to that end : and these must be contemporaneous with, or prior to the completion of the purchase ; if of later date, they will be nugatory(c).

Acts, which as manifesting design to reserve the beneficial ownership, have been deemed subversive of [*]the prima facie title of the child, are such as appear in the following cases. A father, on the purchase of a copyhuld, which, according to the custom, was held for three lives, but might be disposed of by the first taker, proposed as nominees himself and his two sons : it was adjudged, that a licence to grant leases for seventy years, which the father obtained at the same court when he was admitted, was sufficiently indicative of intent to disappoint the claim of the sons to the remainder; inasmuch as the father might, at any time, by mortgage or sale for the term, have substantially defeated their interest (d). And in a later

(a) Shales v. Shales, 2 Freem. (c) Elliot v. Elliot; Finch v. 252; Taylor v. Taylor, 1 Atk. Finch, 15 Ves. 51; Murless v. 386.

Franklin, 1 Swans. 17; Sed vide (6) Elliot v. Elliot, 2 Cha. Ca. Woodman v. Morrel, 2 Freem. 32. 238 ; Scroop v. Scroop, 2 Freem. (1) Swift v. Davis, 8 East, 171; 2 Swans. 600.

355, n.

(1) Sampson v. Sampson, 4 Serg. & Rawle, 329.

« НазадПродовжити »