Grey (Lord) v Grey (Lady), 2 Swans. 594, 36 E.R. 742
muggle...@googlemail.com
"FORD Lord GREY, Plaintiff; KATHERINE Lady GREY, Defendant. And
KATHERINE, RALPH, and CHARLES GREY, Infants, Plaintiffs; FORD Lord
GREY, and KATHERINE Lady GREY, Defendants. 26th March 29 Car. 2, 1677.
[See Sayre v. Hughes, 1868, L. 11. 5 Eq. 380.]
Purchase by a father in the name of his son, an advancement.
These cases involve the concerns of a family, in which I would be glad
to avoid the delivery of any opinion, because I foresee that a victory
on either side can never produce the peace of it, but will rather
occasion great, and perhaps endless breaches. The case is a very short
one, but of a very nice and curious debate.
William Lord Grey purchases Gosfield in the name of Thomas Grey, his
eldest son, without any trust declared; whether, upon the whole
matter, with all its circumstances, this be a provision for Thomas
Grey, the son, by way of advancement, or a trust for the Lord William
[595] Grey What judgment soever be given in this case, it must wound
the honour, and perplex the interests of the family. 1st. The honour
of the family will be wounded every way; for if it be a trust, as the
now Lord Grey would have it, then the £6000 charged on Gosfield by
Ralph Lord Grey fails, and is become unjust and illegal, and so the
honour of the Plaintiff's father lies at stake; on the other side, if
it be an advancement and no trust, as the widow would have it, then
all the provisions made by William Lord Grey to incumber Gosfield,
will fail as to Gosfield, and so the honour of the grandfather lies at
stake. 2d. Again, the interests of the family will be perplexed; for
if it be a trust, as the now Lord Grey would have it, then Katherine,
Ralph, and Charles, will lose their £2000 a-piece charged on Gosfield
by the Lord Ralph; and, moreover, £4000 more given by Lord William to
Katherine, and transferred by the Lord Ralph from a charge on the
personal estate of the Lord William, to be a real charge upon
Gosfield, falls hence to Gosfield, for the Lord William, if he was
cestui que trust, has so settled it, that Lord Ralph was but tenant
for life; so that question affects the now Lord Grey £10,000 deep in
point of interest. On the other side, if it be an advancement, as the
widow would have it, then all the charges laid on Gosfield, inter
alia, by the Lord William, fall hence to Gosfield; and the consequence
of that consequence is, 1st. The £6000 a-piece, given by the Lord
William to Ralph and Charles, the grandchildren, must charge other
lands, not Gosfield. 2d. Gosfield will be so much the abler to bear
the £2000 a-piece charged upon it by the Lord Ralph to his three
younger children. 3d. And also the £4000 more transferred from the
Lord William's personal estate to Gosfield, for Katherine's portion.
4th. And then the remainders in tail to Charles Lord Grey of Rollston,
and Katherine, his lady, will also fail, which is a valuable [596]
possibility, though never so remote. To make this easy to the Court,
and honourable to himself the Lord Grey advances so far as to offer to
pay the £6000, charged by his father on Gosfield for the three younger
children, and the £6000 a-piece charged by his grand-[*743]-father for
the two younger grandsons, and £1000 more of the £4000 transferred by
his father upon Gosfield, leaving the rest of his sister's portions to
his mother, who has two or three personal estates to help her, viz.
Lord William's, Lord Ralph's, and Thomas Grey's. By this offer Ford
Lord Grey takes upon himself £19,000, so as to him the loss would not
be great if judgment was given against him. The widow, to acquit
herself, offered to pay £3000 to her daughters, and all the debts and
legacies of Lord William and Lord Ralph, and to free her son from the
creditors, so as she might enjoy her jointure, and be assisted in the
getting in the personal estate, and both might account for their
receipts. By this offer, the loss, as to the widow, would not be
great, though judgment were given against her, and yet perhaps the
offer is not great neither; but whatever the agreement be, the
personal estate must come into the reckoning. An agreement thus far
advanced is flow broken off, I will not inquire how, but am bound to
give judgment, since both sides demand it. I will, ergo, first state
the facts and the evidences on both sides then I will deliver my
opinion what the law is upon those facts.
The evidence to prove this purchase in the name of the son to be a
trust for the father consists of, 1st, Deeds: 1. Father possessed the
money; 2. Received the profits twenty years; 3. Made leases; 4. Took
fines; 5. Enclosed part in a park; 6. Built much; 7. Provided
materials for more; 8. Directed Lord Chief Justice North to draw a
settlement; 9. Treated about the sale of it. 2dly, Words
1. Thomas Grey confessed [5971 the truth; 2. Advised his father to
sell, and buy York House; 3. 'If it was mine,' says he, I would sell
it'; 4. Before he made his will, said it was his father's; 5. After he
made his will, said it was to keep his brother from pretending.
The disproof of the trust stands upon the like evidence, Deeds and
Words 1st, Deeds; For Thomas Grey bound with Lord William, for £7000
of the purchase- money. 2dly, Words of the Lord William. 1. Before the
purchase, said he would buy it for his son; 2. After the purchase,
said he had bought it for his son; 3. The now purchased land mine, but
Gosfield my son's, T. G.; 4. Gosfield was the inheritance of my son's
mother, hence would better have bought Hatton Garden. I have no title
but by my son's will, it being the purchase of my son T. G. 3dly,
Words of Thomas Grey 1. I believe my father will give me all, but
Gosfield is mine already
2. Thomas Grey, when he lay dying, excused it to his brother Ralph,
that he had by his will given Gosfield to his father. Now, though this
proved but an estate for life, when, perhaps, he thought he had given
an inheritance, yet what needed any excuse at all, if Thomas Grey was
but a trustee for his father?
Upon these facts, the law will best appear by these steps. 1.
Generally and prima facie, as they say, a purchase in the name of a
stranger is a trust, for want of a consideration, but a purchase in
the name of a son is no trust, for the consideration is apparent. 2.
But yet it may be a trust, if it be so declared antecedently or
subsequently, under the hand and seal of both parties. 3. Nay, it may
be a trust, if it be so declared by parol, and both parties uniformly
concur in that declaration. 4. The parol declarations in this case are
both ways; the father and son sometimes declaring for, and some-[598]-
times against, themselves. 5. Ergo, there being no certain proof to
rest on as to parol declarations, the matter is left to construction
and interpretation of law. 6. And herein the great question is,
whether the law will admit of any constructive trust at all between
father and son I
1. For the natural consideration of blood and affection is so
apparently predominant, that those acts which would imply a trust in a
stranger, will not do so in a son; and, ergo, the father who would
check and control the appearance of nature, ought to provide for
himself by some instrument, or some clear proof of a declaration of
trust, and not depend upon any implication of law; for there is no
necessity to give way to constructive trusts, but great justice and
conscience in restraining such constructions.
2. The wisdom of the common law did so; for all the books are agreed
on this point, that a feoffment to a stranger, without a
consideration, raised a use to the feoffer; but a feoffment to the
son, without other consideration, raised no use by implication to the
father, for the consideration of blood settled the use in the son, and
made it an advancement. How can this court justify itself to the
world, if it should be so arbitrary as to make the law of trusts to
differ from the law of uses, in the same case? [*744]
3. Again, as land can never lineally ascend, so neither shall the
trust of land lineally ascend, where it is left to the construction of
law; for the reason why land doth not lineally ascend, is not, as my
Lord Coke says, from natural philosophy, quia gravia deorsuns, but
from moral philosophy, quia amor descend it non ascend it, and from
divinity, because fathers are bound to provide for [599] their
children, but children do not provide for their fathers; therefore,
when a father, according to his duty, has provided for his son, it
were hard to take away that provision by a constructive trust.
4. And therefore it is not reasonable that the father's perception of
profits, or making leases, or doing such other acts as these, which
the son, in good manners, does not contradict, should turn a
presumptive advancement into a trust.
5. Examine all the cases in this Court, whenever this point has been
stirred, and you shall find all the resolutions to agree, and out of
them all may at large be collected a clear difference to rest upon.
1st. If a father makes his son a joint purchaser with him, and
receives all the profits, and disposes of the rents, this is no
evidence of a trust; but the son takes the whole by advancement if he
survives. So it was thrice agreed in the case of Windham v. Windham,
Strode v. Strode, and Adrian Scroop (1 Ca. In Cha. 27; 2 Freem. 171).
Here a learned Custos did once seem to take a difference, by saying,
true, so it is, when the son is joint purchaser, for then the father,
as joint tenant, may, by law, receive the profits; but where the son
is the only purchaser, there the father's perception of profits being
against law, may be some evidence of a trust, for else the father has
no colour to receive them. Plainly, this difference could not be the
reason of these resolutions, for had the father been joint purchaser
with a stranger, and received all the profits, without contradiction
or suit, in necessity the perception of profits would have been
evidence of a trust, yet there it might be said, still one joint
tenant may, by law, receive all. Ergo, it was the sonship, not the
joint tenancy, which ruled those cases. 2d. If a father purchases
lands in [600] the name of an infant child, and receives all the
profits, and makes leases, this is no evidence of a trust. So adjudged
in the Lady (forge's case (cit. Cro. Car. 550), in whose name, her
father, the Earl of Lincoln, purchased. Here some before me have taken
another difference; where the father has colour to receive the profits
as guardian, there perception of profits is no evidence of a trust,
otherwise it would be if the perception of profits were without any
such colour. Plainly, the reason of the resolutions stands not upon
the guardianship, but upon the presumptive advancement; for a purchase
in the name of an infant stranger, with perception of profits, &c.,
will be evidence of a trust.
6. Ergo, where the father intends a trust, he ought to see it declared
in writing, or supported by direct proof, and not rest upon
constructions; for in Sir Adrian Scroop's case, when the court had
adjudged it an advancement and no trust, a concealed deed was after
found, declaring the trust, which shews that good advice had been
taken upon it.
7. Lastly, the difference I rely upon is this; where the son is not at
all or but in part advanced, and where he is fully advanced in his
father's lifetime. lf the son be not at all or but in part advanced,
there if he suffer the father, who purchased in his name, to receive
the profits, &c., this act of reverence and good manners will not
contradict the nature of things, and turn a presumptive advancement
into a trust the rather because in this family there were neither
debts nor casualties, so no occasion to create trusts; but if the son
be married in his father's lifetime, and by his father's consent, and
a settlement be thereupon made, whereby the son appears to be fully
advanced, and in a manner emancipated, there [601] a subsequent
purchase by the father in the name of such a son, with perception of
profits, &c., by the father, will be evidence of a trust; for all
presumption of an advancement ceases.
So it was decreed an advancement of Thomas Gray, and no trust for the
Lord William. It followed that the £12,000 given by Lord William must
be raised out of the lands in Northumberland, the lands in Epping, and
the now purchased lands in Cos field; and, ergo, an account was
decreed. 1. The Lady must account for what the Lord Ralph received, as
far as she has assets. 2. And for what she herself received. 3. And
for the personal estate of Lord Ralph; but to this last point her
counsel opposed, saying, that the Lord Ralph having charged Cos field
with the portions, as it seems by this resolution he had power to do,
has thereby exempted the personal estate from being subject to this
account; to which I declared, that though an express clause may exempt
a personal estate from being applied to ease the land, to which it is
[*746] otherwise subject, prima facie, as in the Duke of Richmond's
case, where there was such an exemption, yet this is never to be done
by implication. In case of creditors, it is clear, that no implication
can exclude them from that right which they have by law, of resorting
to the personal estate; nor can any express clause exclude the
creditors and in case of an heir, it is clear that he is concerned,
that no more of the land be sold than is necessary, and has right and
equity to demand that the personal estate may case him, as far as it
will go; from which right no implication can exclude him."
"1 June, 30 Car. 2, 1678. Ford Lord Grey v. Lady Grey. The matter
arose upon two exceptions. one by the Plaintiff, another by Defendant,
to the master's re-[602]-port. The first was touching a sum of £1000,
in the African Company, which the master reported to be the estate of
William Lord Grey, to whom the Defendant is executrix; but the
Plaintiff excepted to it and would have it the estate of Ralph Lord
Grey, to whom the Defendant is also executrix, but then it would be
liable to Ralph's debts, which are many, William's debts being none at
all.
Now for that the case was, that Grey adventured £2000 in the first
company and lost it, then he subscribes £100 more to the second stock
in the new company, and pays in but £50 and dies. William Lord Grey
pays in the rest, and, as the proof was refused to pay in the money
till his son Ralph declared the trusts, yet the Plaintiff would have
had it an advancement of Ralph, who was advanced before, so that
exception was overruled.
2. The next question arose touching paraphernalia, under which title
the Defendant claimed her jewels, and her chamber plate, and excepted
to the Master's report, for not so allowing it to her, not only in
respect of her quality, as the widow of a Peer, but also because the
question was between the son and the mother, not between the mother
and the creditors; yet I allowed the master's report; for if the son
will contest this point with his mother, he ought to prevail, because
in consequence it concerns all the creditors, whose security is
weakened if the assets be diminished, and there is no reason to
consider any lady's quality, so far for the sake of it to prejudice
the just satisfaction of creditors." Lord Nottingham's MSS.
[Ed. note: quoted in Damberg v Damberg & Ors [2001] NSWCA 87
http://tinyurl.com/5l5btj ]