1840.-Sidmouth v. Sidmouth.

Stowell's property, shortly before his death, but when his intellects were much impaired by age, the property in question had been included.

The interests of the parties to the suit in the funds in question were as follows: the plaintiff, Lady Sidmouth, would be absolutely entitled to the funds in question, if they formed part of the estate of Mr. Scott; but in the event of the stock forming part of Lord Stowell's estate, the principal defendants would, under the will of Lord Stowell, be entitled thereto, in the event of the death of the plaintiff without issue.

Mr. Pemberton and Mr. L. Wigram, for the plaintiff, Lady Sidmouth, contended that the purchase by Lord Stowell in Mr. Scott's name was an advancement to the son, and did not make him a trustee for his father; and that consequently the funds in question formed part of *Mr. [*450] Scott's estate, and belonged to the plaintiff as his general legatee.

They argued that although where a purchase is made in the name of a stranger, an implied trust arises in favor of him who pays the purchase money; yet that when the purchase is made by a parent in the name of his child, the presumption is that it is made as an advancement, Finch v. Finch,(a) and that the onus of proving a trust attached to the other side. That the fact of the parent remaining in possession was insufficient to rebut the presumption of law in favor of the child. Taylor v. Taylor, (b) Dyer v. Dyer;(c) that the rule of law was thus laid down in Lord Grey v. Lady Grey, (d) "In all cases whatsoever, where a trust shall be between father and son, contrary to the consideration and operation of law, the same ought to appear upon very plain and coherent and binding evidence, and not by any argument or inference from the father's continuing in possession and receiving the profits, which somtimes the son may not in good manners contradict, especially where he is advanced but in part; and if such inference shall not be made by the father's perception of profits it shall never be made from any words between them in common discourse; for in those there may be great variety, and sometimes apparent contradictions. Therefore, when the proof is not clear and manifest, the court ought to follow the law, and 'tis very safe so to do."

They also contended that the only evidence admissible to prove a trust, must be of facts and declarations cotemporaneous, and that no subsequent acts, or *declarations of a parent were admissible, in evidence, to [*451] prove that a trust and not an advancement, was intended; that "nothing ex post facto could ever be allowed to alter what had been already done." Crabb v. Crabb.(e) That if Mr. Scott had executed a deed of trust for Lord Stowell for life, the inference would be irresistable that it was intended that the son should take in remainder beneficially; that the power of

(c) 1 Watkins on Copyholds, 4th ed. 277, and 1 P. Williams, 112, n., and 2 Cox, 92.

(d) Ca tem. Finch, 340, and see 2 Swan. 594.

(e) 1 Myl. & K. 511; and see Kilpin v. Kilpin, ib. 537; and Murless v. Franklin 1 Swan. 13.

1840. Sidmouth v. Sidmouth.

attorney, which was revocable, and would lose its operation on the death of Mr. Scott, was still stronger in proving that he was not wholly a trustee for his father. That the obvious purpose was by a gift inter vivos to avoid the payment of probate and legacy duty.

Mr. Hall for Lord Sidmouth and Mr. Chisholme, a trustee, submitted to any decision of the court.

Mr. Kindersley and Mr. H. Williams, for the representatives of Lord Eldon, and Mr. Purvis, for Mrs. Forster, a party in the same interest, contended there was a clear trust of the stock in favor of Lord Stowell; that there was evidence sufficient to rebut the ordinary presumption that Mr. Scott was to take beneficially. The execution by him of the powers of attorney-his acquiescence for so many years in the receipt of the dividends by his father, showed plainly that the father and not the son was intended to have the benefit of the investment. That the fact of a father retaining possession had always been looked on as strong evidence against an advancement. In Woodman v. Morrel,(a) a daughter was decreed to surrender copyholds on

that ground; and in Murless v. Franklin,(b) it was considered that [*452] *possession taken by the father at the time, would amount to evidence to show that the father intended the purchase for his own

benefit.

They argued, that if the son took the whole beneficial interest, the father's estate might, contrary to the intention, be accountable for the receipts of the very dividends; that if a partial interest was intended to be reserved by the father, then the onus of proving the limits of that interest was on the plaintiff; and that it might fairly be assumed that Lord Stowell intended his son to take the property, only in the event of his surviving him.

That the authorities cited were distinguishable. The case of Lord Grey v. Lady Grey turned on this, that the son joined in a security for the purchase money. In Taylor v. Taylor, the infancy of the child was the main point relied on, as it would be absurd to appoint an infant trustee; and in Crabb v. Crabb, the testator had evinced his intention by directing the dividends to be paid to the son.

That Mr. Scott was adult at the time, and living with his father, and that no marriage or settlement in life appeared to have been then contemplated, which rendered such a provision for him necessary. They also cited Swift dem. Farr v. Davis.(c)

Mr. Turner and Mr. Allfrey, for Mr. Sanderson, in the same interest, cited, in addition, Stileman v. Ashdown,(d) Loyd v. Read,(e) and a manuscript case of Loriet v. Loriet, before Sir John Leach, in November, 1825. *Mr. Pemberton, in reply.

[*453]

April 28.-THE MASTER OF THE ROLLS:-The plaintiff in this

(a) Freeman, C. C. 32. (d) 2 Atk, 477.

(b) 1 Swan. 17.

(c) 8 East, 354, n.

(e) 1 P. Williams, 606.

1840.-Sidmouth v Sidmouth.

cause is the legal personal representative of her late brother, William Scott, and as such she claims to be entitled to the sum of 5500!. three per cents., the sum of 70001. three per cent. reduced annuities, and the sum of 21,000l. three and a half per cent. annuities, which were standing in the name of Mr. Scott at the time of his death; the defendants are, Lord Sidmouth and Mr. Chisholme the executors of Lord Stowell the father of Mr. Scott and of the plaintiff, Elizabeth Foster, and Richard Burden Sanderson, who are represented to be two of the next of kin of Lord Stowell, (exclusively of his daughter and her issue,) and the executors of the late Lord Eldon, who is represented to have been the only other next of kin of Lord Stowell, (exclusively of his daughter and her issue.)

Mr. Scott died on the 26th of November, 1835, in the lifetime of his father, Lord Stowell, who died on the 28th of January, 1836. The death of Mr. Scott was not made known to his father, and for some time after Lord Stowell's death, it was supposed that Mr. Scott had died intestate, and on this supposition administration of his estate was granted to his father's executors, and they procured the sums of stock which are in question to be transferred into their names. After the will of Mr. Scott was discovered, administration of his estate was granted to the plaintiff.

By the will of Mr. Scott, the whole of his personal estate was bequeathed to the plaintiff.

By the will of Lord Stowell, his residuary estate is contingently given in trust for the persons who, under *the statute of distribu- [*454] tions, would be entitled to his personal estate in case he had died intestate and without issue.

The several sums of stock which were standing in the name of Mr. Scott at the time of his death, were all of them purchased by the directions and with the money of Lord Stowell; and under these circumstances, the plaintiff contends that the stock so purchased by the father in the name of the son, was an advancement to him, and constituted part of his estate, and now belongs to her as his legal personal representative; whilst the defendants, the next of kin (exclusively of the plaintiff and her issue) contend that the purchase was made under circumstances which constitute Mr. Scott a trustee for his father, Lord Stowell, and that, notwithstanding the transfer of the stock into the name of Mr. Scott, the beneficial interest therein was vested in Lord Stowell, and formed part of his estate, and upon the happening of the contingency contemplated by him will belong to his next of kin.

The law applicable to cases of this nature is subject to so little doubt that it has not been questioned in the argument of this case. Where property is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an advancement; the resulting or implied trust which arises in favor of the person who pays the purchase money, and takes a conveyance or transfer in the name of a stranger,[1] does not arise in the case of a purchase

[1] As to resulting trust, in cases of this description, see Botsford v. Burr, 2 Johns. Ch. Rep. 405, 409.

1840.-Sidmouth v. Sidmouth.

by a parent in the name of a child; but still the relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall take as a trustee; and in this case, as in most others of [*455] *the like kind, the only question is, whether there is such other evidence.

That cotemporaneous acts and even cotemporaneous declarations of the parent may amount to such evidence, has often been decided. Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but generally speaking, we are to look at what was said and done at the time.

In this case, the only evidence showing what was done at the time is that of Mr. Addison, who says that Lord Stowell was in the habit of going to the banking house of Child & Co. when he had surplus money to lay out, and that ou such occasions a conversation of this sort usually occurred, viz., after mentioning that he had some spare money to lay out, he would say, partly as if deliberating to himself, and partly as if speaking to witness, "What shall I buy? I have some idea of buying the stock in my son's name ;" and after hesitating and considering for a short time, he would add, "Well, I think I will buy it in my son's name," or he used expressions to that effect. The witness then proves the stock to have been purchased by the directions of Lord Stowell in his son's name, and leaving it to be supposed that the vague language he has described was employed on the several occasions of those purchases, he says it was understood by the bank that the stock was to be held by the son at the entire and absolute disposal of the father.

This understanding is not material, as we are to consider what it is of which the facts are evidence; and I am of opinion that the species of de

liberation which was manifested by Lord Stowell, and supposing it [*456] to have *occurred on every occasion of transfer, affords no evidence

whatever that he intended his son to be a trustee of the stock. I cannot suppose him to have been ignorant of the legal effect of buying the stock in the name of his son; and it seems much more probable that any hesitation which he evinced was occasioned by a deliberation whether he should or not make an advancement for his son, than by a deliberation whether he should or not make his son a trustee for him at a time when he had other stock standing in his own name, and in which it does not appear that any convenience could be obtained by making his own son a trustee for him of part of the stock of which he was the owner.

As far as acts strictly cotemporaneous appear, there does not appear to be any thing to manifest an intention to make the son a trustee for the father. The circumstance that the son was adult does not appear to me to be material.[1] It is said that no establishment was in contemplation, and that no necessity or occasion for advancing the son had occurred, but in the relation

[1] Vide Scawin v. Scawin, 1 Yo. & Coll. C. C. 65. Cited post, 459, n.

1840.-Sidmouth v. Sidmouth.

between parent and child, it does not appear to me that an observation of this kind can have any weight. The parent may judge for himself when it suits his own convenience, or when it will be best for his son, to secure him any benefit which he voluntarily thinks fit to bestow upon him, and it does not follow that because the reason for doing it is not known, there was no intention to advance at all.

But then it is said that the powers of attorney, which enabled the father or the father's bankers to receive the dividends, though not strictly cotemporaneous, followed so soon upon the transfers as to show that they were part of the same transaction. In none of the cases does it appear that Mr. Scott knew of the transfers at the time *when they were made; [*457] in two of the cases it does not appear that he knew of the transfers until the times when he executed the powers of attorney; but in one of the cases he had attended at the bank, and himself received the dividend warrant, and consequently knew of the transfer before he executed the power of attorney; he then permitted his father, who was present, to deal with the dividend as he pleased. These circumstances are not conclusive, but they appear to me to make it probable, that at the time when the transfers were made, Lord Stowell intended that the dividends should be received by himself. Whenever that intention was formed, Mr. Scott acquiesced in it.

But supposing that the demand of the powers of attorney afford evidence of Lord Stowell's intention at the times of the several transfers, I am of opinion that it cannot thence be deduced that Lord Stowell, at the same times, intended his son to be a mere trustee for him. Consider the situation in which they stood, the son unmarried, living in the house of his father, and wholly maintained by him, having future expectations from another source, but no present maintenance except from his father, and having very great fu ture expectations from his father's large property; and then consider what the father could mean by transferring sums of stock into the name of his son, with an intention to receive the dividends himself. It is clear that he meant to continue to maintain his son; it is probable that if he had meant only a contingent provision in the event of the son surviving him, he would have made a transfer into the joint names of himself and his son, for this would have given the absolute power over the stock to the survivor ;[1] if he had intended, notwithstanding the transfer to the son, to retain the absolute dominion in himself, it is probable he would have taken care to *extend the power so as to enable himself to sell and transfer; but it [*458] is scarcely to be conceived why he should make any transfer at all, if

the

[1] One seised of a copyhold estate for the joint lives of himself and J., and the survivor, surrenders it to the lord and takes a new grant for the joint lives of himself, J., and W., surrenderor's son, and the longest liver of them; it was held, under the circumstances of the case, that this was intended to be an advancement for W. Skeats v. Skeats, 2 Yo. & Col. C. C. 9.