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	England and Wales High Court (Exchequer Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Exchequer Court) Decisions >> Dyer v Dyer [1788] EWHC Exch J8 (27 November 1788) URL: http://www.bailii.org/ew/cases/EWHC/Exch/1788/J8.html Cite as: [1775-1802] All ER Rep 205, 2 Cox Eq Cas 92, 30 ER 42, (1788) 2 RR 14, [1788] EWHC Exch J8

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		Dyer v Dyer (1788) 2 RR 14; 2 Cox Eq Cas 92; [1775-1802] All ER Rep 205; 30 ER 42;

In the Exchequer
L. C. Baron, B. Hotham, B. Thompson.


		20, 21, and 27 November 1788

B e t w e e n:


____________________

	DYER
	-v-
	DYER

____________________

Judgment
 


Advancement. Copyhold granted to A. and B. his wife, and C. his younger son, to take in succession for their lives and the life of the survivors. The purchase money was all paid by A. C. is not a trustee of his life interest for A., but takes it beneficially as an advancement from his father. Resulting trust.

In 1737 certain copyhold premises holden of the manor of Heytesbury, in the county of Wilts, were granted by the lord, according to the custom of that manor, to Simon and Mary his wife, and the defendant William (his other son) to take in succession for their lives, and to the longest liver of them. The purchase money was paid by Simon Dyer the father. He survived his wife and lived until 1785, and then died, having made his will, and thereby devised all his interest in these copyhold premises (amongst others) to the plaintiff, his younger son. The present bill stated these circumstances, and insisted that the whole purchase money being paid by the father, although, by the form of the grant, the wife and the defendant had the legal interest in the premises for their lives in succession, yet in a court of equity they were but trustees for the father, and the bill therefore prayed that the plaintiff, as devisee of the father, might be quieted in the possession of the premises during the life of the defendant.

The defendant insisted that the insertion of his name in the grant operated as an advancement to him from his father to the extent of the legal interest thereby given to him. And this was the whole question in the cause. This case was very fully argued by Mr. Solicitor General and Ainge for the plaintiff, and by Burton and Morris for the defendant. The following cases were cited, and very particularly commented on. Smith v. Baker, 1 Atk. 385. Taylor v. Taylor, 1 Atk. 386. Mumma v. Mumma, 2 Vern. 19. Howe v. Howe, 1 Vern. 415. Anon. 2 Freem. 123. Benger v. Drew, 1 P. W. 781. Dickenson v. Shaw, before the Lords Commissioners in 1770. Bedwell v. Froome before Sir T. Sewell, on the 10th May 1778. Row v. Bowden before Sir L. Kenyon, sitting for the Lord Chancellor. Crispe v. Pratt, Cro. Car. 548. Scroope v. Scroope, 1 Cha. Ca. 27. Elliot v. Elliot, 2 Cha. Ca. 231. [93] Ebrand v. Dancer, 2 Cha. Ca. 26. Kingdome v. Bridges, 2 Vern. 67. Back v. Andrews, 2 Vern. 120. Rundle v. Bundle, 2 Vern. 264. Lamplugh v. Lamplugh, 1 P. W. 111. Stileman v. Ashdown, 2 Atk. 430. Pole v. Pole, 1 Ves. 76.

Lord Chief Baron [Eyre], after directing the cause to stand over for a few days, delivered the judgment of the Court.

The question between the parties in this cause is, whether the defendant is to be considered as a trustee for his father in respect of his succession to the legal interest of the copyhold premises in question, and whether the plaintiff, as representative of the father, is now entitled to the benefit of that trust. I intimated my opinion of the question on the hearing of the cause, and I then indeed entertained very little doubt upon the rule of a court of equity, as applied to this subject; but as so many cases have been cited, some of which are not in print, we thought it convenient to take an opportunity of looking more fully into them, in order that the ground of our decision may be put in as clear a light as possible, especially in a case in which so great a difference of opinion seems to have prevailed at the bar. And I have met with a case in addition to those cited, which is that of Bumbold v. Rumbold on the 20th April 1761. The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffinent is made without consideration, the use results to the feoffor. It is the established doctrine of a Court of equity, that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove that the circumstance of one or more of the nominees, being a child or children of the purchaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine, if the children had been considered as purchasers for a valuable consideration. Natural love and affection raised a use at common law; surely then it will rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have prevented some very nice distinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be of course evidence admitted on the other side. Thus it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides. In the most simple case of all, which is that of a father purchasing in the name of his son, it is said that this shews the father intended an advancement, and therefore the resulting trust is rebutted; but then a circumstance is added to this, namely, that the son happened to be provided for; then the question is; did the father intend to advance a son already provided for? Lord Nottingham could not get over this, and he ruled that in such a case the resulting trust was not rebutted; and in Pole v. Pole, in Vezey, Lord Hardwicke thought so too; and yet the rule in a court of equity as recognized in other cases is, that the father is the only judge as to the question of a son's provision; that distinction, therefore, of the son being provided for or not, is not very solidly taken or uniformly adhered to. It is then said that a purchase in the name of a son is a prima facie advancement (and indeed it seems difficult to put it in any way); in some of the cases some circumstances have appeared which go pretty much against that presumption, as where the father has entered and kept possession, and taken the rents; or where he has surrendered or devised the estate; or where the son has given receipts in the name of the father; the answer given is, that the father took the rents as guardian of his son; now would the Court sustain a bill by the son against the father for these rents? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is answered that these are subsequent acts; whereas the intention of the father in taking the purchase in the son's name must be proved by concomitant acts; yet these are pretty strong acts of ownership, and assert the right, and coincide with the possession and enjoyment. As to the son's giving receipts in the name of the father, it is said that the son being under age, he could not give receipts in any other manner: but I own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other distinctions are taken. If the custom of the manor be that the first taker might surrender the whole lease, that shall make the other lessees trustees for him; but this custom operates on the legal estate, not on the equitable interest; and therefore this is not a very solid argument. When the lessees are to take successive, it is said, that as the father cannot take the whole in his own name, but must insert other names in the lease, then the children shall be trustees for the father; and to be sure, if the circumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There may be many prudential reasons for putting in the life of a child in preference to that of any other person; and if in that case it is to be collected from circumstances whether an advancement was meant, it will be difficult to find such as will support that idea: to be sure taking the estate in the name of the child, which the father might have taken in his own, affords a strong argument of such an intent; but where the estate must necessarily be taken to him in succession, the inference is very different. These are the difficulties which occur from considering the purchase in the son's name as a circumstance of evidence only. Now if it were once laid down that the son was to be taken as a purchaser for a valuable consideration, all these matters of presumption would be avoided.

It must be admitted that the case of Dickinson v. Shaw, is a case very strong to support the present plaintiff's claim. That came on in Chancery on 22d May 1770. "A copyhold was granted to three lives to take in succession the father, son, and "daughter; the father paid the fine; there was no custom stated; the question was, "whether the daughter and her husband were trustees during the life of the son, who "survived the father. At the time of the purchase the son was nine, and the daughter "seven years old. It appeared that the father had leased the premises from three "years to three years to the extent of nine years. On this case Lords Commissioners " Smythe and Aston were of opinion, that as the father had paid the purchase money, " the children were trustees for him." To the note I have of this case, it is added that this determination was contrary to the general opinion of the bar, and also to a case of Taylor v. Alston in this Court. In Dickinson v. Shaw there was some little evidence to assist the idea of its being a trust, namely, that of the leases made by the father; if that made an ingredient in the determination, then that case is not quite in point to the present; but I rather think that the meaning of the Court was that the burthen of proof laid on the child; and that the cases which went the other way were only those in which the estate was entirely purchased in the name of the children; if so, they certainly were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son, I have been favoured with a note of Rumbold v. Rumbold before Lord Keeper Henley on the 20th April 1761, where a copyhold was taken for three lives in succession, the father and two sons; the father paid the fine; and the custom was that the first taker might dispose of the whole estate (and his Lordship then stated that case fully). Now this case does not amount to more than an opinion of Lord Keeper Henley; but he agreed with me in considering a child as a purchaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been supposed that the case of Taylor v. Alston in this Court denied the authority of Dickinson v. Shaw. That cause was heard before Lord Chief Baron Smythe, myself, and Mr. Baron Burland, and was the case of an uncle purchasing in the names of himself and a nephew and niece; it was decided in favour of the nephew and niece, not on any general idea of their taking as relations, but on the result of much parol evidence, which was admitted on both sides, and the equity on the side of the nominees was thought to preponderate. Lord Kenyon was in that cause, and his argument went solely on the weight of the parol evidence; indeed, as far as the circumstance of the custom of the first taker's right to surrender, it was a strong case in favour of a trust; however the Court determined the other way on the parol evidence: that case therefore is not material. Another case has been mentioned which is not in print, and which was thought to be materially applicable to this, Bedwell v. Froome before Sir T. Sewell; but that was materially distinguishable from the present; as far as the general doctrine went, it went against the opinion of the Lords Commissioners. His Honour there held that the copyholds were part of the testator's personal estate; for that was not a purchase in the name of the daughter; she was not to have the legal estate; it was only a contract to add the daughter's life in a new lease to be granted to the father himself; there could be no question about her being a trustee; for it was as a freehold in him for his daughter's life; but in the course of the argument his Honour stated the common principles as applied to the present case; and ended by saying that as between father and child the natural presumption was that a provision was meant. The anonymous case in 2 Freem. corresponds very much with the doctrine laid down by Sir T. Sewell; and it observes that an advancement to a child is considered as done for valuable consideration, not only against the father, but against creditors. Kingdome v. Bridges is a strong case to this point, that is, the valuable nature of the consideration arising on a provision made for a wife or for a child; for there the question arose as against creditors.

I do not find that there are in print more than three cases which respect copyholds, where the grant is to take successive. Rundle v. Rundle, 2 Vern. 264, which was a case perfectly clear; Benger v. Drew, 1 P. W. 781, where the purchase was made partly with the wife's money; and Smith v. Baker, 1 Atk. 385, where the general doctrine as applied to strangers was recognized; but the case turned on the question, whether the interest was well devised. Therefore, as far as respects this particular case, Dickinson v. Shaw is the only case quite in point; and then the question is, whether that case is to be abided by? With great reverence to the memory of those two judges who decided it, we think that case cannot be followed; that it has not stood the test of time, or the opinion of learned men; and Lord Kenyon has certainly intimated his opinion against it. On examination of its principles, they seem to rest on too narrow a foundation, namely, that the inference of a provision being intended did not arise because the purchase could not have been taken wholly in the name of the purchaser. This we think is not sufficient to turn the presumption against the child; if it is meant to be a trust, the purchaser must shew that intention by-a declaration of trust; and we do not think it right to doubt whether an estate in succession is to be considered as an advancement, when a moiety of an estate in possession certainly would be so. If we were to enter into all the reasons that might possibly influence the mind of the purchaser, many might perhaps occur in every case upon which it might be argued that an advancement was not intended. And I own it is not a very prudent conduct of a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family; but this applies equally in case of a purchase in the name of the child only; yet that case is admitted to be an advancement; indeed, if any thing, the latter case is rather the strongest, for there it must be confined to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well established as to become a land-mark, and which, whether right or wrong, should be carried throughout. This bill must therefore be dismissed; but after stating that the only case in point on the subject, is against our present opinion, it certainly will be proper to dismiss it without costs.