RIDER v. KIDDER. [*361 ] [362] there should be any issue, to pay to the *trustees within the time aforesaid 2,000l. with the same interest, upon trust to place it out at interest, and pay the interest to Catharine Gray for life; and after her decease as to the principal in trust for the child or children of the marriage. John Rider in 1797 purchased the sum of 2,000/. Consolidated 3 per cent. Annuities by his general agents; and gave them a letter of attorney to receive the dividends, having transferred the stock into the joint names of himself and Anne Kidder, with whom he had an improper intercourse; and from that time to 1803 the dividends were paid by the agents to her; Rider generally residing in the East Indies till his death. He left his wife surviving him and one child by her. The widow, having taken out administration to him, filed the bill against Anne Kidder; praying, that the transfer of the stock by Rider into the joint names of himself and the defendant may be declared to have been made in trust for himself: or otherwise, that it may be declared to have been voluntary and fraudulent as against his creditors; and that the defendant may be decreed to transfer the fund to the plaintiff as his legal personal representative, &c. The defendant by her answer stated, that Rider informed her he had made the purchase in contemplation of leaving England; meaning it to be a provision for her; and that he thought it would be more secure in their joint names; as it could not be sold or transferred without his knowledge in his life; and he requested her to join in a letter of attorney to his agents to receive the dividends; and she received the dividends always from that time. She denied, that she prevailed upon him to make the transfer; that it was a trust for him; &c. Mr. Romilly and Mr. Hart, for the plaintiff: It is admitted that there was no consideration for the transfer of this stock; which was a mere transfer into the joint names of the intestate and the defendant; no instrument being executed. First, the defendant must be considered a trustee for the personal representative: if not, then the transaction, as being voluntary, and intended to defeat creditors at his death, cannot stand. Where a man makes a purchase in the names of himself and another person, no consideration passing from that person, he is primâ facie a trustee for the purchaser: the purchase being made in the name of another, probably to answer some purpose of convenience. No reason for creating a joint-tenancy appears. If he had filed a bill against her, calling for a transfer from their joint names into his own name, could she, having taken that transfer without consideration, have made any defence? It must then be considered a trust. But, upon the other point, this case is under very peculiar circumstances. At the time of this transfer it does not appear that he owed any debt, except one, payable after his death; and, as far as appears, this was all the property he had; which under the effect of this transaction was to remain his during his life, and to become the property of another person upon his death. If the transfer had been made, not for a person under these circumstances, but for a wife, it would have been a fraudulent settlement: Taylor v. Jones (1); and it would be singular, if this defendant can stand in a better situation than a wife. It is true, your Lordship has expressed doubt upon that case; whether it comes within the Statute of Elizabeth (2); being a transfer of stock, which creditors cannot take in execution. But this is under different circumstances: a man, not parting with the property during his life, but making a disposition, to take effect at his death, and so defeat his creditors. If therefore this is to be considered as intended for a provision for this defendant, it is a provision for her in fraud of creditors. His object was to maintain that controul over her during his life, which the policy of this Court reprobates. In Mortimer v. Davies, a late case at the Rolls, a man living in this way, but not married, purchased an annuity in the name of the woman with whom he cohabited. It appeared the purchasemoney was his; and no consideration passed from her. She insisted that it was intended as a provision for her, but was held to be a trustee. Mr. Richards and Mr. Phillimore, for the defendant: This was a present to the defendant; given as a permanent provision for her. She received the dividends; and his letters show, he treated it as her property. Under those circumstances it cannot be called back. Upon the other question, there is no equity in this case. It is purely at law. To make the transaction void under the Statute of Queen Elizabeth there must be a creditor at the time. Upon what principle can a court of equity (2) Stat. 13 Eliz. c. 5. (1) 2 Atk. 600. RIDER v. KIDDER. [ *363 ] [364] RIDER v. Kidder. [ *365 ] relieve under the Statute of Queen Elizabeth, where a court of law cannot ? The letters of the intestate being offered in evidence by the defendant, the plaintiff's counsel objected to have them read. One of those letters stated his wish, that he could do more for her; but expressed his satisfaction to know, that he leaves her independent. Another letter spoke of her 601. a-year, as a permanent income, with reference to the income tax. THE LORD CHANCELLOR: The trust arises by mere presumption of law upon the advancement of the money. Then the letters may be read to rebut that presumption (1). But they amount to no proof of any thing. Mr. Romilly, in reply: The defendant may be treated as a trustee, either by contract, or, as the transaction was fraudulent. The intention must have been either, that she should have this property for herself, or that she should be a trustee for him. A joint interest could not be intended; for the property was not so dealt with the defendant receiving all the dividends. In cases of this sort the presumption is a trust for the person advancing the money; and the only evidence against that is the circumstance, that his attornies received the dividends; and paid them over to her. What could be the meaning of his joining his name with her's, but to keep a control over her; that she should have it as long as he pleased. He could not mean to be a trustee for her; as he was going to the East Indies. In Mortimer v. Davies there were no circumstances. Upon the dry point alone, that the defendant cannot produce evidence of an intention to make a provision for her, this plaintiff is entitled; as her husband was. But, upon the other point, it is true, the trustees in the settlement are the legal creditors: not the plaintiff. But she is beneficially entitled. Though there is no instance of a bill, filed upon this ground by a personal representative alone, without a creditor, that may be supported upon principle; if the estate is insolvent. The Statute of Queen Elizabeth reaches a debt, depending upon a contingency, as much as a debt certain. (1) George v. Howard, 21 R. R. 775 (7 Pr. 646). Though this debt was not payable until twelve months after the death of the husband, leaving his wife surviving, yet it was a debt from the execution of the covenant. The plaintiff puts the case, not as a settlement void at law, but as a provision for a criminal and adulterous intercourse. The distinction between a recompense for past, and a provision for future, cohabitation, has never been made in the instance of a married man. THE LORD CHANCELLOR: Has there been any case upon that distinction, where the Court finding the woman in actual possession of the property has upon that ground taken it out of her hands? The distinction upon the doctrine of præmium pudicitia has prevailed in the case of restraining her from enforcing a security. But I doubt, whether there is any instance of taking the property out of her hands, except as to creditors. For the plaintiff : There is no case, I believe, except as to restraining her from enforcing a security in her hands. The material circumstance is, that this property was not to come absolutely under her control until after his death; as it cannot be made out, that he was originally intended to be a trustee for her. THE LORD CHANCELLOR : It is said, first, this is a trust: if not, secondly, that the transaction is fraudulent against creditors; and that the objection upon the fraud is competent to the personal representative, as such supposing the estate is insolvent. Upon the first point, I suspect, there is something of the nature of trust in the transaction to what extent it is difficult to say without some farther inquiry. If the case at the Rolls was purely this; that A. bought an annuity in the name of B., A. paying for it, and B. had no proof, that it was meant as a provision for her, in this Court the fact of the advancement of the purchase-money, as between these persons, standing in no relation to each other, that would meet the presumption, raises a trust in the person, vested with the interest, for the benefit of the person, who paid the money. This doctrine *admits some exceptions, that were very fully discussed in the Court of Exchequer, in the case of a copyhold estate in the West of England; which was bought for successive 18 R.R.-VOL. LIII. RIDER V. KIDDER. [366] [ *367 ] lives. The habit was to insert as feoffees the children of the purchaser. It was settled in that case, that prima facie the relation will give the child an interest; and perhaps that would prevail also in favour of a wife (1). But the case of a child was distinguished from that of a stranger; in which there is not that natural affection, that would beat down the presumption, arising from the advance of the money (2). If therefore this case depended upon the mere naked circumstance of the purchase of stock in both their names, and he had died immediately, without any dealing or transaction upon it, I should have thought, the defendant would have been a trustee for his personal representative; as she would have been for himself. But the presumption may undoubtedly be met by circumstances of enjoyment; tending to show, that, which primâ facie is a trust, was intended as a gift; and, then the circumstances and the weight of each are to be examined. This case is under very peculiar circumstances. What would have been said upon the question of trust, if this lady had died first; and left a personal representative? If it was an absolute trust for her, it would make no difference as to the equitable interest, which survived. If therefore there was a trust for her from the beginning, they must contend, not that she took by mere survivorship, which is only as to the legal interest, but that, whether she survived, or not, she took the whole equitable interest. Are the circumstances of this case sufficient to meet the prima facie presumption? Unquestionably they are not; even as they now stand; little explained, as they are; though certainly capable of explanation. It is clear, Rider, purchasing this fund in the names *both of himself and the defendant, might by revoking at any time the power of attorney have prevented her from receiving the dividends; and if she had filed a bill, to compel him to execute a power of attorney, suggesting, that he was a trustee, and attempting to prove it by the receipt of the dividends, the question would have been, why was the joint power of attorney given to his bankers; and in what manner has she been permitted to receive the whole dividends; and very slight explanation would have proved, whether it was a gift (1) Lorimer v. Lorimer, in Chancery, 11th Nov. 1822. Stock, purchased by a man in the names of himself and his wife, was on his death held by the VICE-CHANCELLOR to go to her as the from him from time to time, as survivor: MSS. Mr. Beames, who was counsel against the wife. (2) Finch v. Finch, 10 R. R. 12 (15 Ves. 50). |