provide for his child, the purchasing in his name will be construed in a court of equity to be a performance of that obligation; and the taking of the rents during the minority of the child, only implies that the father acted as guardian to his son. years old; Mumma, 2 Vern. 19. 73. J. Mumma purchased a copyhold in the name Mumma v. of his eldest son, an infant about eleven laid out 4007. in improvements, paid the purchase money and the fines, and enjoyed it during his life. He surrendered to the use of his will, devised it to his wife for life, remainder to his younger children; and made other provisions for his eldest son. Upon the death of the father, the eldest son recovered this copyhold in ejectment. The widow brought a bill to be relieved, upon the principle that the eldest son was a trustee for the father. Lord Chancellor Jefferies declared, that as the eldest son was but an infant at the time of the purchase, though the father did enjoy during his life, it must be considered as an advancement for the son; and not a trust for the father. 74. In the case of Lamplugh v. Lamplugh, it was ante, § 46. resolved, that if the purchase had been made in the younger son's name only, it had been plainly an advancement for him, and no trust. That the case did not differ, in regard the persons named by him did disclaim; especially since prudential reasons might be given why those persons were joined: namely, that they might help and protect the infant younger son; also to prevent the estates descending to a remote relation, in case the younger son died before his father. For in such case a court of equity would have said, if the father were to come for the estate; though this would have been an advancement, in case the younger son had lived to have enjoyed it, Taylor v. ante, § 73. yet the younger son dying, the trustees should, in equity, have conveyed it back to the father. And this might be the use and intention of naming these trustees. Besides, the younger son being but eight years old, was unfit to be a trustee; therefore must be intended to have been named for his own benefit. 75. A father purchased copyhold lands in his son's name, who was then eighteen years of and continued in possession till his death. age, Lord Hardwicke.-"I am of opinion that it should be considered as an advancement for the son; and found my opinion greatly on the case of Mumma v. Mumma: and though two receipts are produced under the son's hand, for the use of the father, I think that will not alter the case. For the son, being then under age, could give no other receipt in discharge of the tenants; who held by lease from the father. And in this case I am of opinion that parol evidence may be admitted, though indeed improper when Dyer v. Dyer, offered against the legal operation of a will, or an implied trust; but here it is in support of law, and equity too." 2 Cox's R. 92. Scroop v. 1 Cha. Ca. 27. Stileman v. 2 Atk. 477. 76. A purchase by a father in his own name and that of his son, has, in some cases, been deemed an advancement for the son; not a trust for the father. But this doctrine has been altered; and it has been held, that in such a case, a moiety of the estate will be subject to the father's debts. 77. A father made a purchase of land in his own name, and that of his eldest son, and their heirs; and a similar purchase in his own name and that of his younger son. The father paid the purchase money, and continued in possession till the time of his death. A judgement creditor of the father's brought his bill to have satisfaction of his debt out of those estates. It was insisted that the sons took them to their own use, as an advancement, and were not trustees for their father. Lord Hardwicke said,-The general rule had been admitted, and had been long the doctrine of the Court, that notwithstanding the father paid the whole money, yet if the purchase was made in the name of a younger son, the heir of the father should not insist it was a trust for the father. But this case differed from that rule, or any other that he remembered; and if he could find any material difference, he should, in his own judgement, be inclined to relieve the creditor. For though it might be proper stare decisis, yet he thought the cases had gone far enough in favour of advancements; and he ought not to carry it farther. It must be admitted, that in some cases which had been before the Court, the father had continued in possession, where the purchase had been made singly in the name of the son, and yet held an advancement for the son; and for this reason, because the father was the natural guardian of the sons, during their minority. Here the purchase was in the names of the father and sons, as joint tenants; now this did not answer the purpose of an advancement, for it entitled the father to the possession of the whole, till a division, and to a moiety absolutely, even after a division; besides the father's taking a chance to himself of being a survivor of the other moiety. If the son had died during his minority, the father would have been entitled to the whole, by survivorship, and the son could not have prevented it by severance, he being an infant. Suppose a stronger case, that the father had taken an estate by purchase, to himself for life, with remainder to his son in fee, Ebrand v. 1 P. Wms. Fearn's Op. 327. should this prevail against the creditors? No certainly. For the defendant's father having the profits for life, and the son only a remainder, the estate would have been liable. A material consideration for the plaintiffs, that the father might have other reason was for the purchasing in joint tenancy, namely, to prevent dower on the estate, and other charges. Then con sider how it stood in respect to the creditor. A father here was in possession of the whole estate, and must necessarily appear to be the visible owner of it, and the creditor would have had a right, by virtue of an elegit, to have laid hold of a moiety; so that it differed extremely from all the other cases. Now it was very proper that the Court of Chancery should let itself loose, as far as possible, in order to relieve a creditor, and ought to be governed by particular circumstances of cases: and what could be more favourable to the plaintiff than that every foot of the estate was covered by these purchases; and unless the Court let him in upon these estates, the plaintiff had no possibility of being paid. Decreed, that a moiety of these purchases was liable to the debt. 78. A purchase by a grandfather in the name of his grandchild, provided the father be dead, in which case the grandchildren are in the immediate care of the grandfather, will be deemed an advancement for the grandchild, not a trust for the grandfather. 79. Where a person purchased a copyhold estate in the names, and for the lives, of his three natural children, who were admitted, and described as his daughters in the admission. Mr. Fearne inclined to the opinion that the daughters were entitled to the estate for their own use: because every man is under a natural obligation to provide for such children. 80. It is said by Lord Nottingham, in the case of Exception, Grey v. Grey, that where a son is married in the life Children emancipated. Elliot v. of his father, and by him fully advanced, and eman- Finch R.341. cipated, there a purchase by the father, in the name Elliot, of his son, may be a trust for the father, as much as 2 Cha. Ca. if it had been in the name of a stranger; because in Pole v. Pole, that case all presumptions or obligations of advance- 1 Ves. 76. ment cease. But where the son is not advanced, or but advanced, or emancipated, in part, there is no room for any construction of a trust by implication; and without clear proofs to the contrary, it ought to be taken as an advancement of the son. 231. 271. 81. It is also said by Lord Chief Baron Gilbert, Lex prætoria, that if a father purchases in the name of his son, who is of full age, which by the English law is an emancipation out of the power of the father; there if the father takes the profits, or lets leases, or acts in any other manner as the owner of the estate, the son will be considered as a trustee for the father: because there is the same resulting trust, as if the son were a stranger, since it was purchased with the father's money. But if the father had let the son continue in possession, from the time of the purchase, without acting as owner, it would be an advancement. For the legal interest being in the son, and the father permitting him to act as owner of the estate, from the time of the purchase, did as much declare the trust for the advancement of the son, as if it had been declared in express words in the deed. 82. A wife cannot be a trustee for her husband. And also Therefore if a husband purchases lands in the name a Wife. of his wife, it shall be presumed in the first instance to be an advancement, and provision for the wife. |