Soar v Foster

JurisdictionEngland & Wales
Judgment Date28 January 1858
Date28 January 1858
CourtHigh Court of Chancery

English Reports Citation: 70 E.R. 64



S. C. 4 Jur. (N. S.) 406; 6 W. R. 265.

Advancement or Provision. Deceased Wife's Sister. Marriage with, since 5 & 6 Will. 4, c. 54. Purchase of Stock in joint Names. Presumption. Resulting Trust for Purchaser.

[152] soar v. foster. Jan. 23, 28, 1858. [S. C. 4 Jur. (N. S.) 406; 6 W. E. 265.] Advancement or Provision. Deceased Wife's Sister. Marriage with, since 5 & 6 Will. 4, c. 54. Purchase of Stock in joint Names. Presumption. Resulting Trust for Purchaser. Purchase of stock in the names of the purchaser and his deceased wife's sister, whom (in form) he had married since the Act 5 & 6 Will. 4, c. 54, and always treated as his wife: Held, not to raise a presumption that it was intended as an advancement or provision for her. The authorities having established that this presumption will arise where a purchase is made in the name of a wife, a legitimate child, or a grandchild whose father is dead; and also, as it would seem, upon a purchase made in the name of an illegitimate child. Observations on Beckford v. Beckford, Lofft, 490. In the year 1840 William Harris, deceased, the testator in the cause, married the Defendant Eachel, his deceased [153] wife's sister, (1) and afterwards purchased ,£650 consols in the joint names of himself and the Defendant as "Eachel Harris, his wife." By his will, in 1845, the testator bequeathed to the Defendant Eachel, in the will described as " his wife Eachel Harris" (inter alia), the interest of all the money be had in the public funds, for her life; and, " at the death of his said wife," he bequeathed all the principal sums of money in the said public funds to the Plaintiff, Mary Jane Soar, his daughter by his former marriage, and he appointed "his said wife, Eachel Harris " sole executrix of his will. At the time of his death (31st January 1845) the testator was possessed of the £650 consols standing in the joint names of himself and the Defendant Eachel, and of £50 consols standing in his own name. After the testator's death Eachel married the Defendant, William Foster. The bill was filed by Soar and Mary Jane, his wife, against Foster and Eachel, his wife; and it prayed that it might be declared that the £650 consols, as well as the £50 consols, formed part of the estate of the testator, Harris, at the time of his death; and that the Plaintiff Mary Jane was entitled thereto after the death of the Defendant Kachel; and that the Defendants, might be decreed to replace the £650 consols (which they had sold); and for other consequential relief. [154] The bill admitted that the testator and the Defendant Eachel, after going through the form of marriage, cohabited together, and treated one another, and were regarded generally by others as man and wife. ' Evidence was adduced by the Defendants, but unsuccessfully, to shew that the (1) Lord Lyndhurst's Act (5 & 7 Will 4, c. 54), by which it was enacted "that all marriages which should thereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity should be absolutely null and void to all intents and purposes whatsoever," received the Eoyal assent on the 31st of August 1835. 4K.&J.155. SOAR V. FOSTER 65 £650 consols were purchased with Rachel's savings; but the Court was of opinion that they were purchased with the testator's own moneys. Mr. Eolt, Q.C., and Mr. J. H. Law, for the Plaintiffs, contended that they were entitled to a decree as prayed. They relied upon the general rule that where a purchase is made by one in the name of another, or in the name of himself and another, the latter is a trustee for the purchaser. The case of a wife was exceptional; and had the Defendant, Rachel Foster, been the lawful wife of Harris at the time when this stock was purchased, a presumption might have arisen that it was intended as a provision or advancement for her quA wife. But she was not his lawful wife. The marriage, if marriage it could be called, was in 1840. long after the...

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