tenants for rent: but it by no means follows, nor is it true in fact, that he is entitled to an exclusive possession, or to appropriate the whole of the profits. The rights which the father immediately acquires from the joint seisin cannot, therefore, it is conceived, be relied on as affording any substantial inference against a presumptive advancement. Nor does more importance appear to be due to the fact, that the father; in case of a division, would take one moiety absolutely; it merely shows, that he did not intend to give his son a title, from the first, to the whole property. So with regard to his retaining a chance of survivorship, nothing positive seems fairly deducible from thence; for survivorship is simply an incident of [*] the tenancy, and gives at most but a chance : the son too has the same prospective benefit, and with better hope of seeing it realized, the probability being in favour of his surviving: he has likewise the power, when of age, to sever the joint estate. And the circumstance of his being an infant rather strengthens than opposes his pretensions: the inutility of an infant trustee is obvious; and to objections drawn from the son's inability during nonage to effect a severance, it may be urged in reply, that such fact merely denotes an intention on the father's part to secure the property to himself in case the son should die before he wanted it. Nevertheless, to recur to the principal question, it must be allowed, that the argument of conveniency is strong for holding a purchase in the name of an adult child, to be a trust. The general [*67]

tendency of the contrary doctrine is, to preclude a father from entrusting his own son(a)(1).

The same rules on the point of advancement, which hold with regard to purchases in the name of a child, are also applicable, so far as the difference of circumstances admits, to purchases in the name of a wife. It has, at least, been decided that such purchases shall, in the first instance, be presumed a provision or advancement for the wife (b); the disabilities under which she, as a feme covert, is placed by law, rendering her, in many respects, unfit for the

office of trustee.

[*]When a purchase in the name of a child, or, as it should seem, of a wife, is determined to be an advancement, the consequence, as regards the father or husband, is to prevent his making any disposition of the property, in destruction or derogation of the child's or wife's right. He capnot, therefore, defeat. their claim by devise (c); and, as the case falls not within the operation of the stat. 27 Eliz. c. 4, he has no power to prejudice their title by mortgage (d),

(a) See 2 Cha. Ca. 232.

(6) Kingdom v. Bridges, 2 Vern. 67; Back v. Andrew, ib. 120; Christ's Hospital v. Budgin, 2 Vern. 683; Rider v. Kidder, 10 Ves. 367.

(c) Mumma v. Mumma, 2 Vern. 19; Dyer v. Dyer, 2 Cox, 92., See also 15 Ves. 50, 51.

(d) Back v. Andrew, 2 Vern. 120; Prec. Cha. 1, S. C.

(1) A deed from a parent to his child, in consideration of love and affection, is presumed to be an advancement. Hatch et al. v. Straight, 3 Conn. R. 31.

sale for valuable consideration (a), or settlement on marriage (b).

Purchases in the name of a wife or child may, it is conceived, be avoided by creditors under the stat. 13 Eliz. c. 5. The point, it is true, has not been actually decided. Indeed, it has been contended, on the authority of Fletcher v. Sedley (c), and Proctor v. Warren (d), that such purchases cannot be impeached; and it was also urged, among other arguments, that as a man may give money to the object of his bounty, to be laid out in a purchase, so, pari ratione, he may himself make a purchase, and direct the conveyance to be taken in the name of a wife or child. The cases above-mentioned, however, are as insufficient to establish the point for which they have been cited, as the arguments which have been adduced to the same end are inconclusive. For on the occasion of the former [*]case being cited before Lord Hardwicke, his Lordship is reported to have said, "That case in Vernon was only the inclination of the court on the argument of counsel, and it would be dangerous to allow the arguments which are there" (e). And in the latter case, the only observation of Lord King applicable to the subject was, that " he did not know it had ever been determined, that where a man indebted, and minding to provide for his children, has an estate originally conveyed to them, such estate was subject to his debts." So much for the cases which have been cited as authorities. With respect to the argu

ments advanced in support of purchases of this kind against the claims of creditors, we have already seen, that Lord Hardwicke has characterized them as dangerous. And as they are certainly rather subtle than substantial, and proceed upon refined technical distinctions, which can never be admitted in a court of equity, it is conceived they will not be allowed to prevail against an enlarged and sensible construction of the statute under consideration; which also being a remedial law in favour of creditors, must, as are all remedial laws, be construed liberally (a). It may also be observed, that the argument, which has been derived from the alleged validity of a direct gift of money to the object of bounty for the purpose of being laid out in land, is not entitled to much weight since Lord Henley's decision in Partridge v. Gopp (b); in which case, after mature consideration, [*]he held, that a gift to a child of money by an insolvent debtor did come within the purview of the act of the 13th Elizabeth, and that the donee was answerable though the money might have been spent.

But the argument now under discussion appears to be open to the much more serious objection, that it is drawn from an assumption, in which is really involved a petitio principii. For if a purchase made by a father himself in the name of a child may be avoided by creditors, it is impossible to say that the mere colourable gift of the purchase money to the child to be by him laid out in land, could protect

(b) 1 Eden. 163; Amb. 596; S. C.

(a) See 19 Vin. Abr. 515; per there cited. Best C. J., 2 Bing. 197. See also Christ's Hospital v. Budgin, 2 Vern. 683, and Gatley v. Quarrel,

the transaction against their claim. A court of equity will never allow that to be done per indirectum which it forbids to be done directly. It would entirely disregard the superficial distinction which divides between the two cases, and would treat the circumstance of the gift as a clear fraudulent evasion of the wholesome provisions of the statute. The validity of a gift of money to be laid out in a purchase must not therefore be assumed: it is in truth itself dependent on, and must be proved by first establishing the validity of a purchase made immediately by a parent in his child's name. Now if we strip the case of a purchase made in the name of a wife or child of the peculiar external circumstances, it can hardly be distinguished from a mere voluntary post-nuptial settlement.

So that where there is no express declaration of trust in favour of the wife or child, and the matter is left entirely to presumption to raise a trust in their favour, it appears an almost necessary [*]conclusion, that such presumption will not be allowed, where it would work an injury to creditors; since it is very clear, that the duty of paying just debts is superior to that of advancing a wife or child. And although a trust be expressly declared in their favour, or possession have been taken by them, the case (besides being open to the objections just stated) seems also capable of being met on that ground of fraud which is mentioned by Lord Hardwicke in Chesterfield v. Janssen (a) wherein he says-“ A fourth kind of fraud may be collected or inferred, in the consideration of this court, from the nature and circumstances of the transaction, as being an imposi

(a) See 2 Ves. 156.