sufficient to rebut a resulting trust in favour of the purchaser, if the surrounding circumstances lead to the conclusion that a trust was intended. Although a purchase in the name of a wife or a child, if altogether unexplained, will be deemed a gift, yet the surrounding circumstances may be taken into consideration, so as to say that it is a trust and not a gift. (a)

Thus in Marshall v. Crutwell, (b) the husband of the plaintiff, being in failing health, transferred his banking account from his own name into the joint names of himself and his wife, and directed the bankers to honour cheques drawn either by himself or his wife, and he afterwards paid in considerable sums to their account. All cheques were afterwards drawn by the plaintiff at the direction of her husband, and the proceeds were applied in payment of household and other expenses. The husband never explained to the plaintiff what his intention was in transferring the account, but he was stated by the bank manager to have remarked at the time of the transfer that the balance of the account would belong to the survivor of himself and his wife. After the death of her husband (which took place a few months after the transfer) the plaintiff claimed to be entitled to the balance. It was held that the transfer of the account was not intended to be a provision for the plaintiff, but merely a mode of conveniently managing her husband's affairs, and consequently that she was not entitled. Jessel, M.R., said: "In all the cases in which a gift to the wife has been held to have been intended, the husband has retained the dominion over the fund in this sense, that

(a) Marshall v. Crutwell, L. R. 20 Eq. 329, per Jessel, M. R.; and see Fowkes v.

Pascoe, L. R. 10 Ch. 343.
(b) L. R. 20 Eq. 329.

CHAP. XII.

CHAP. XII.

Purchase

money unpaid.

Joint tenancy when created.

the wife during the lifetime of the husband has had no power independently of him, and the husband has retained the power of revoking the gift. In transferring a sum of stock there is no obvious motive why a man should put a sum of stock into the name of himself and his wife. She cannot receive the dividends, he can and must, and it is difficult to see any motive of convenience or otherwise which should induce a man to buy a sum of stock or transfer a sum of stock (if there is any difference between the two) in or into the names of himself and his wife, except the motive of benefiting her in case she survives. But here we have the actual fact, that the man was in such a state of health that he could not draw cheques, and the wife drew them. Looking at the fact that subsequent sums are paid in from time to time, and taking into view all the circumstances (as I understand I am bound to do), as a juryman I think that the circumstances show that this was a mere arrangement for convenience, and that it was not intended to be a provision for the wife in the event which might happen, that at the husband's death there might be a fund standing to the credit of the banking account."

Where a purchase either of real or personal property is made in the name of a wife or child, and the purchaser dies before the whole of the purchase-money is paid, the purchase will enure for the benefit of the wife or child, and the unpaid purchase-money is payable out of the purchaser's personal estate. (a)

A purchase in the joint names of a father and son

(a) Redington v. Redington, 3 Ridg. P. C. 106; Vance v. Vance, 1 Beav. 605; Drew v. Martin, 2 H. & M. 130; Skid

more v. Bradford, L. R. 8 Eq. 134; Nicholson v. Mulligan, 3 J. R. Eq. 308; see 30 & 31 Vict. c. 69.

creates a joint tenancy. (a) In one case where the father CHAP. XII. had no other estate to which a judgment creditor could resort, the creditor was relieved in equity against the survivorship at law. (b)

granted for

lives suc

cessive.

Where a father takes a surrender of copyholds for the Copyholds joint lives of himself and son to take successively, and pays the fine, the son is not a trustee of his life interest for the father, but takes it beneficially as an advancement if he survives.(c)

Where a father purchased a copyhold, and was admitted to hold during the lives of his three children successively, it was held that the father meant to advance his children, and that they were therefore entitled beneficially, and not as trustees for their father. (d)

the name of.

If a purchase is made by a parent in the name of a Purchase in child and of a stranger, whether of real or personal child and a estate, it will be considered as an advancement; the stranger. stranger will be treated as a trustee for the child, and there will not be any resulting trust to the father. (e) In certain cases where a purchase is made in the name of a child, the presumption of advancement may be rebutted. Thus, where a father tenant, by copy of court

(a) Scroope v. Scroope, Freem. Ch. 171; 1 Ch. Cas. 27; Back v. Andrews, 2 Vern. 120; Grey v. Grey, 2 Swans. 599; Dummer v. Pitcher, 2 M. & K. 272.

(b) Stileman v. Ashdown, 2 Atk. 477; see Pole v. Pole, 1 Ves. 76. This case, however, is doubted by Mr. Lewin in his work on Trusts, 6th ed. 153.

(c) Dyer v. Dyer, 2 Cox, 92;

Skeats v. Skeats, 2 Y. & C. C.
9; Swift v. Davis, 8 East, 354,
n. (a.)

(d) Jeans v. Cooke, 24 Beav.
513.

(e) Lamplugh v. Lamplugh, 1 P. Wms. 111; Mumma v. Mumma, 2 Vern. 19; Finch v. Finch, 15 Ves. 43; Crabb v. Crabb, 1 M. & K. 511; Collinson v. Collinson, 3 D. M. G. 403.

Evidence to rebut presumption of

advancement.

CHAP. XII.

Possession by father.

roll for his life, took according to the custom of the manor a grant from the lord of the reversion to his sons for the terms of their lives, in trust for himself "as the purchaser," it was held that the sons were trustees of the reversion for him. (a)

The antecedent and contemporaneous acts and declarations of the parent are admissible in evidence to rebut the presumption of advancement, but his subsequent acts and declarations are inadmissible for that purpose. (b) In Devoy v. Devoy (c) the presumption that the transfer (by a father) of stock into the joint names of himself, his wife, and child, was intended to be an advancement, was allowed to be rebutted by the evidence upon oath of the transferor that no trust was intended, but that the transfer was made under a misapprehension of its legal effect.(d)

Although subsequent acts and declarations of the parent are not evidence to support the trust, subsequent acts and declarations of the child may be so. (e)

The presumption of advancement will not be rebutted by the fact of the father having continued in possession of the estate during his life, (ƒ) nor by the fact that the father has expended money in

(a) Keats v. Hewer, 10 Jur. (N. S.) 1040; 13 W. R. 34.

(b) Redington v. Redington, 3 Ridg. 177; Loyd v. Read, 1 P. Wms. 607; Murless v. Franklin, 1 Swanst. 13; Sidmouth v. Sidmouth, 2 Beav. 447; Collinson v. Collinson, 3 D. M. G. 409; Dumper v. Dumper, 3 Giff. 583; Williams v. Williams, 32 Beav. 370; Tucker v. Burrow, 2 H. & M. 515.

repairs on the estate. (g)

(c) 3 Sm. & G. 403.

(d) See Stone v. Stone, 3 Jur. (N. S.) 708.

(e) Sidmouth v. Sidmouth, 2 Beav. 455, per Lord Langdale.

(f) Grey v. Grey, 2 Swanst. 600; Lamplugh v. Lamplugh,1 P. Wms. 111; Taylor v. Taylor, 1 Atk. 386; Christy v. Courtenay, 13 Beav, 96.

(g) Shales v. Shales, Freem. 252; see further Elliot v. Elliot,

Where a father purchases stock or shares in the name of a child, and receives the dividends during his life under a power from the son, this alone will not rebut the presumption of advancement. (a) In Smith v. Warde (b) a father directed stock to be purchased in the names of himself and his wife in trust for his infant son. The purchase was made in the joint names without any trust being declared, and the father received the dividends down to his decease. It was held that neither his son nor his wife (who survived him) were entitled to the stock, but that it formed part of his assets. (c)

CHAP. XII.

Dividends

received by father.

If, after a purchase of property by a parent or by a Devise, bequest, or husband in the name of a child or wife, the purchaser lease. devises or bequeaths it, (d) or leases it, (e) the primâ facie presumption of advancement will not be rebutted.

Where a testator by his will settled £1,000 reduced annuities on each of his granddaughters, the children of his only son, and two years afterwards he transferred a sum of £3,200 reduced annuities, which was all the property he possessed, into the name of his son, and died at the age of ninety-four, having resided the last ten years of his life with his son, who was a man of considerable property, it was held that the transfer to the son operated as an absolute gift to him free from any trusts. (ƒ)