of any lands, tenements, or hereditaments shall be manifested or Chap. VI. proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect"; and that "all grants and assignments of any trust or confidence shall likewise be in writing signed by the party granting or assigning the same, or by such last will or devise, or else shall be utterly void and of none effect." Trusts arising or resulting by implication or construction of law, or transferred or extinguished by operation of law, are excepted from the operation of sect 7.3 name of stranger. Where a man purchases property, or invests money, in the Purchase in name of a stranger, or in the name of a stranger jointly with himself, the presumption is that he makes the purchase or investment for his own benefit. On the other hand, if he purchases property in the name of a person whom he is morally bound to provide for, the presumption is that he intends the purchase to discharge in whole or in part his moral obligation; but in either case evidence is admissible to rebut the presumption.5 6 In the opinion of Courts of Equity a father is morally bound to provide for his children, and a husband for his wife; but if it is alleged that a person standing in any other relation to another is morally bound, as being in loco parentis, to support him, the existence of the obligation must be proved. child. It follows that if a father makes a purchase in the name of a Father and child, or in the names of the child and another person, or in the names of the child and himself, 10 the purchase is considered to be for the child's benefit. It may, however, appear, either from evidence of the father's declarations or conduct, contemporaneous with but not after the purchase," or by the acts or 3 S. 8. See Dyer v. Dyer, 2 W. & T. L. C. 803. Dyer v. Dyer, 2 Cox, 92; 2 W. & T. L. C. 803; 2 R. R. 14; Rider v. Kidder, 10 Ves. 360; 53 R. R. 269: Standing v. Bowring, 31 Ch. D. 287, per Cotton, L. J.; Re Policy 6402 of Scottish, &c., Soc., [1902] 1 Ch. 282. Bennet v. Bennet, 10 Ch. D. 476. See Marshal v. Crutwell, 20 Eq. 328. Per Jessel, M. R., Bennet v. Bennet, 10 Ch. D. 476. 8 Elliot v. Elliot, 2 Ch. Ca. 231; Mumma v. Mumma, 2 Vern. 19; Taylor v. Taylor, 1 Atk. 386; Grey v. Grey, 2 Swanst. 594; 19 R. R. 150; Sidmouth v. Sidmouth, 2 Beav. 447; Williams v. Williams, 32 Beav. 370; Hepworth v. Hepworth, 11 Eq. 10; May v. May, 33 Beav. 81. 9 Lamplugh v. Lamplugh, 1 P. Wms. 111; Crabb v. Crabb, 1 My. & K. 511. 10 Scroope v. Scroope, 1 Ch. Ca. 27; Back v. Andrews, Finch, Pre. Ch. 1. 11 Elliot v. Elliot, sup. ; Woodman v. Morrel, Freem. Ch. Ca. 32; Birch v. Blagrave, 1 Amb. 264.; Murless v. Chap. VI. declarations of the child after the purchase,1 or by the circumstances attending the transfer, that the child was merely a trustee for his father. Mother and child. Husband and wife. On the other hand, as a mother is not considered by Courts of Equity to be morally bound to provide for her children, a transfer to, or a purchase in the name of a child by its mother is primâ facie not a gift to the child; 2 but circumstances may readily show that it was a gift.* 3 A purchase in the name of a grandchild whose father was dead, or in the name of a wife's nephew whose father was alive," was held under the circumstances to be made by a person who was morally bound to support the person in whose name the purchase was made, and therefore to amount to a gift. Until recently a gift by a husband to his wife had no effect at law, though equity would give effect to it as raising a trust.7 Now, however, under the Conveyanciug Act, 1881, and the Married Women's Property Act, 1882, such a gift is effectual at law.8 A purchase by a husband in the name of his wife, or in the joint names of the husband and wife, or in the names of the husband, wife, and a stranger, 10 is presumed to be a gift to the wife, but this presumption may be rebutted." When a Franklin, 1 Swan. 13; 18 R. R. 3, 1 Sidmouth v. Sidmouth, 2 Beav. 455; 2 Re De Visme, 2 De G. J. & S. 17; Bennet v. Bennet, 10 Ch. D. 474 ; Garrett v. Wilkinson, 2 De G. & Sm. 244. sup. Per Jessel, M. R., Bennet v. Bennet, 4 Sayre v. Hughes, 5 Eq. 376; Bat- Ebrand v. Dancer, 2 Ch. Ca. 26; 6 Currant v. Jago, 1 Coll. 261. 7 Fox v. Hawks, 13 Ch. D. 822. 8 44 & 45 Vict. c. 41, s 50; 45 & 46. Vict. c. 75; Re Breton, 17 Ch. D. 416. Post, Ch. XXI. 9 Christ's Hospital v. Budgen, 2 Vern. 683; Lorimer v. Lorimer, 10 Ves. 367, n.; Dummer v. Pilcher, 2 My. & K. 262; 39 R. R. 203; Low v. Carter, 1 Beav. 426; Drew v. Martin, 2 H. & M. 130; Gosling v. Gosling, 3 Drew. 335. Keeping a joint banking account has the same effect; see Re Young, 28 Ch. D. 705. Where it was agreed that money standing to an intended wife's credit at a bank should be her separate property, and after the marriage she drew it out, it was held that the husband had given it to her; Re Whitehead, 14 Q. B. D. 419. 10 Kingdon v. Bridges, 2 Vern. 67; Re Eykyn, 6 Ch. D. 115. 11 Smith v. Warde, 15 Sim. 56 ; Lloyd v. Pughe, 8 Ch. 88; Devoy v. Devoy, 3 Sm. & Giff. 403. Wedding presents are separate estate of the wife; Ex p. Pannell, purchase is made with the wife's money in the name of a husband Chap. VI. there is no presumption of a gift by the wife to the husband.1 A purchase in the name of a stranger may be proved to be a gift by evidence of intention or of circumstances.3 A woman who has gone through the ceremony of marriage with a man who knows the marriage to be invalid, or a woman living in adultery with a man," or a man's illegitimate child," is a stranger to the man, within the meaning of the rule. Donationes Mortis Causa. 8 9 A donatio mortis causâ is where a man makes a gift in contemplation of his death from an existing illness. It is subject to a condition (which may be express or implied) that the thing given shall be returned to the donor if he recovers, and is revoked by the death of the donee in the lifetime of the donor,10 or by the thing given being returned to the donor," and is subject to the donor's debts.12 A donatio mortis causâ may be made for a particular purpose or subject to a trust.13 A gift which is intended to be an unconditional gift inter vivos cannot take effect as a donatio mortis causâ.11 The form of a will of personalty made before the Wills Act 15 37 W. R. 464. See Vaizey on Settlements, 760, 783. 1 Mercier v. Mercier, [1903] 2 Ch. 98. Beecher v. Mayor, 2 Dr. & Sm. 431; Standing v. Bowring, 27 Ch. D. 341 ; 31 Ch. D. 282; Batstone v. Salter, 19 Eq. 250; 10 Ch. 431; Fowkes v. Pascoe, 10 Ch. 343; George v. Howard, 7 Pri. 646; 21 R. R. 775; Deacon v. Colquhoun, 2 Drew. 21. 3 Re Curteis, 14 Eq. 217; Ouseley v. Anstruther, 10 Beav. 461. Soar v. Foster, 4 K. & J. 152. 5 Rider v. Kidder, 10 Ves. 360. Tucker v. Burrow, 2 H. & M. 515; but see Beckford v. Beckford, Lofft, 490. 7 The doctrine as to donationes mortis causa is derived from the civil law. "Mortis causâ donatio est quæ propter mortis fit suspicionem; cum quis ita donat, ut si quid humanitus ei contigisset, haberet is qui accepit: sin autem supervixisset, qui donavit, reciperet : vel si eum donationis poenituisset: aut prior decesserit is, cui donatum sit:' Just. Instit. II. 7, 1. See Ward v. 9 Tate v. Hilbert, 2 Ves. jun. 121; 4 10 Tate v. Hilbert, 2 Ves. jun. p. 120; 2 R. R. 175. 11 Ward v. Turner, 2 Ves. sen. p. 433. 12 Smith v. Casen, cited Drury v. Smith, 1 P. Wms. 406, n.; Tate v. Leithead, Kay, 659; Ward v. Turner, sup. 15 Blount v. Burrow, 4 Bro. C. C. 73; Hills v. Hills, 8 M. & W. 401; 58 R. R. 746; Dunne v. Boyd, 8 Ir. Rep. Eq. 609. 14 Edwards v. Jones, 1 My. & Cr. 226; 43 R. R. 178; Reddel v. Dobree, 10 Sim. 244; 51 R. R. 233; ante, p. 80 15 7 Will. 4 & 1 Vict. c. 26. Chap. VI. Delivery necessary. Negotiable instruments. came into operation was immaterial, so that an instrument of any nature intended to operate after a man's death might be admitted to probate.1 The consequence was that where a man made a gift by writing to take effect after his death, it took effect, if it took effect at all, as a legacy, not as a donatio mortis causâ. The consequence might be different if in addition to the instrument there was delivery. The rule that a donatio mortis causâ cannot be made by writing appears not to have been altered by the Wills Act.2 3 A donatio mortis causâ cannot be made by mere words. It can only be made effectual by delivery. This does not mean that the delivery must be such as to confer a legal title on the donee, for in some cases the delivery of a document of title, which does not pass a legal interest, is held to confer an equitable interest on the donee, and the right to the assistance of the Court to make his title complete after the death of the donor. The delivery may be made to the donee or to a bailee for him; but delivery to the agent of the donor, with directions to deliver to the donee after the death of the donor, is not sufficient. There may, however, be a good donatio mortis causâ of a thing which has been previously delivered for a different purpose. Delivery of the key of a safe in which bonds were kept was held to effectuate a donatio mortis causâ of the bonds." 8 Delivery of a negotiable instrument to the donee is sufficient,1o even if it requires indorsement and is not indorsed.11 A donatio of a cheque drawn by the donor is ineffectual unless it be cashed 12 or dealt with for value 13 in his lifetime. Delivery of the instrument creating a chose in action, such as 1 See the cases collected, Williams on Executors, Pt. 1., Bk. II., Chap. II., s. 3. 27 Will. 4 & 1 Vict. c. 26. 3 Per Loughborough, C., Tate v. Hilbert, sup. Ward v. Turner. 2 Ves. sen. 431; 1 W. & T. L. C. 390; Bunn v. Markham, 7 Taunt. 224; 17 R. R. 497. Duffield v. Elwes, 1 Bli. N. S. 530; 6 Powel v. Cleaver, 2 Bro. C. C. 499. 8 Cain v. Moore, [1896] 2 Q. B. 283. 9 Mustapha v. Wedlake, 1891 W. N. 201. 10 Powel v. Cleaver, 2 Bro. C. C. 500; Miller v. Miller, 3 P. Wms. 356. 11 Veal v. Veal, 27 Beav. 303; Re Mead, 15 Ch. D. 651; Clement v. Chees man, 27 Ch. D. 631. 12 Hewitt v. Kay, 6 Eq. 198; Re Mead, 15 Ch. D. 651; Re Beaumont, [1902] 1 Ch. 889. See Byles on Bills, 205. 13 Rolls v. Pearce, 5 Ch. D. 730. Dealing with the cheque for value would seem to be the same thing as cashing it at the donor's bank; the money would remain subject to the condition. a deposit note, is sufficient, and after the death of the donor the Chap. VI. donee can sue in the name of his executors. The same rule has been applied to the delivery of a receipt which was the evidence of a loan, and of a Post Office Savings Bank deposit book. Delivery up of a mortgage deed to the mortgagor, as a donatio mortis causâ, was held to be effectual to extinguish the mortgage debt, and the heir and executor of the mortgagee were held bound to give effect to it.5 It has been held that bank shares, railway stock, consols, and building society shares cannot be the subject of donatio mortis causâ.6 It is now settled that there is no rule which requires that the evidence of a person making a claim against the estate of a deceased must be corroborated, though such evidence ought to be very carefully sifted.7 Re Dillon, 44 Ch. D. 76. Snellgrove v. Baily, 3 Atk. 214; Gardner v. Parker, 3 Mad. 184; 18 R. R. 213; Amis v. Witt, 33 Beav. 619; Witt v. Amis, 1 B. & S. 109. 3 Moore v. Darton, 4 De G. & Sm. 517. *Re Weston, [1902] 1 Ch. 680: Re Andrews, [1902] 2 Ch. 394. Duffield v. Hicks, 1 Dow. & Cl. 1; S. C., Duffield v. Elwes, 1 Bli. N. S. 497; 30 R. R. 69: see Re Dillon, sup. Lambert v. Overton, 13 W. R. 227; Moore v. Moore, 18 Eq. 474. The effect 7 Re Dillon, sup. ; Re Garnett, 31 Ch. |