But although, where property is purchased in the name of a wife or child, the purchase is, prima facie, an advancement, still, the relation between the parties is only evidence of the intention of the purchaser to advance the nominee: which evidence may be rebutted by other evidence manifesting a contrary intention. That cotemporaneous acts (k) and even cotemporaneous (l) declarations of the purchaser, may amount to such evidence, has been often decided (m); but subsequent acts and declarations of the purchaser are not evidence to support the trust: although subsequent acts and declarations of the nominee may be so: but, generally speaking, we are to look at what was said and done at the time (n).

Although the purchaser's name be also inserted; or the nominees take successively.

Presumption in favour of ad vancement may be rebutted by co-temporane-ous acts or declarations; a child living with and maintained by his Father; Powys v. Mansfield, 3 Myl. & Cr. 359; Pym v. Lockyer, 5 Myl. & Cr. 29.

(z) Grey v. Grey, 2 Sw. 594; Sidmouth v. Sidmouth, 2 Beav. 456.

(a) See Loyd v. Read, 1 P. Wms. 607.

(b) See Grey v. Grey, 2 Sw. 598.

(c) Maddison v. Andrew, 1 Ves. 57, sec p. 61; Skeats v. Skeats, 2 Y. &C. C. C. 9.

(d) Stileman v. Ashdown, 2 Atk. 477, see p. 480.

(e) See Sug. 916.

(f) Scroope v. Scroope, 1 Ch. Ca. 27; Back v. Andrews, 2 Vern. 120.

(g) Dyer v. Dyer, 2 Cox, 92; Skeats v. Skeats, 2 Y. & C. C. C. 9, overruling Dickenson v. Shaw, 1 Wat. Cop. 222.

(h) See Dummer v. Pitcher, 2 Myl. & K. 262; and 2 Vern. 120, 683.

(i) Lamplugh v. Lamplugh, 1 P. Wms. 111; Crabb v. Crabb, 1 Myl. & K. 511; and see 1 Myl. & K. 542; see however Skeats v. Skeats, ubi supra.

Thus, where a copyholder, upon taking a purchase in his son's name, at the same Court surrendered it to the use of his own will (o); or, taking a purchase in the joint names of himself and two sons, at the same Court took a license to lease for seventy years (p), it was held to be no advancement. So, where the purchase is made with some particular object, as to sever a joint-tenancy (q). But the general presumption in favour of advancement cannot be negatived or qualified by transactions relating to other estates (r).

In the case of a child, it is a material circumstance that a provision has been previously made for him; but this is far from being decisive (s). In the older cases (t) it was held that the child, if already fully advanced, could not take; but, as observed by Eyre, L. C. B. (u), " the father is the only judge as to the question of a son's provision: the distinction therefore of the son being provided for or not, is not very solidly taken or uniformly adhered to:" and it has been observed by Lord Eldon that "the presumption of advancement in favour of a child is not to be frittered away by nice refinement" (to). At any rate, it appears that an advancement which is (x), or which the parent considers to be (y) only in part, will not rebut the presumption of advancement: a reversion expectant on a life estate, is prima facie only a part advancement (z).

By what cotemporaneous acts or circumstances.

Prior advancement of child, whether material.

(k) See Prankerd v. Prankerd, 1 Sim. & St. 1.

(l) Or previous; see 1 Myl. & K. 539.

(m) 2 Beav. 455; and see Kilpin v. Kilpin, 1 Myl. & K. 520, where the declarations were made verbally to the purchaser's solicitor.

(n) Sidmouth v Sidmouth, 2 Beav. 447, see p. 455; and see 1 Myl. & K. 532, and 1 Coll. 267.

(o) Prankerd v. Prankerd, 1 Sim. & St. 1.

(p) Swift v. Davis, 8 East, 354, n.

(q) Sug. 915, citing Baylis v. Newton, 2 Vern. 28.

(r) Murless v. Franklin, 1 Sw. see p. 19.

(s) Per Lord Brougham, 1 Myl. & K. 542.

(7) See Elliot v. Elliot, 2 Ch. Ca. 231, A. D. 1677; Grey v. Grey, 2 Sw. 600, decided A. D. 1677; and see Sug. 913.

(u) See Dyer v. Dyer, 2 Cox, 94.

A subsequent parol admission by a child that he holds only as trustee, may rebut the presumption in favour of advancement (a); but the fact that the child, even although adult, allows the parent to take and keep possession (b), is insufficient; nor is the result altered by the child actively assisting the parent in taking the profits; as, in the case of a purchase of stock in the child's name, by his executing a power of attorney for the father to receive the dividends (c); or by money being subsequently laid out on the property by the parent (d).

But although, as already noticed, no subsequent act on the part of the purchaser can affect the rights of the nominee, if the presumption in favour of advancement has once arisen, yet a clear devise to another of the estate will raise a case of election against the nominee (e).

And where the father of a family has allowed money of his own to be invested in the purchase of an estate, along with other moneys subject to the trusts of his marriage settlement, it will require very strong evidence of intention to show that he did not intend it as an advancement (f).

By what subsequent acts or circumstances.

Election.

(w) See 15 Ves. 50.

(x) Grey v. Grey, 2 Sw. 600.

(y) Redington v . Reding ton, 3 Ridg. P. C. 106, seep. 191.

(z) Lamplugh v. Lamplugh, 1 P. Wms. 111.

(a) See 2 Beav. 455; Scawin v. Scawin, 1 Y. & C. C. C. 65.

(b) See Elliot v. Elliot, 2 Ch. Ca. 231; Grey v. Grey, 2 Sw. 600; and see 2 Beav. 456.

(c) Sidmouth v. Sidmoutk, 2 Beav. see p. 456.

(d) Mumma v. Mumma, 2 Vern. 19.

(e) Dummer v. Pitcher, 5 Sim. 35; 2 Myl. & K. 262.

(f) Ouseley v. Anstruther, 10 Beav. 462.

A purchase in the name of a child, or, it is conceived, a wife, whether solely or jointly with the purchaser, is not within the 27 Eliz.: and it seems to be the better opinion that, except in cases of actual fraud, such a purchase is not within the 13 Eliz. (g).

And even upon a purchase in the name of a stranger, clear parol or other evidence is admissible to rebut the presumption in favour of a resulting trust; and to show that, either as respects the whole or part of the land, or the interest therein, the purchaser intended the nominee to take beneficially (h).

Where trustees for the purchase of land, lay out the trust moneys and take the conveyance in their own names, the cestuis que trust, in order specifically to claim the lands, must, of course, prove that they were purchased with the trust moneys: this may be proved either by direct evidence, - as where trust money was paid by a trustee by a cheque, which was next day paid over by him in part payment for the estate (i), - or by mere parol evidence of declarations by the trustees: but these, in the absence of corroborating circumstances, will be received with great caution (k). The presumption, however, is, that a purchase made by a trustee, whose duty is so to invest trust money, has been made in execution of the trust (l). And where a trustee paid in trust moneys, (applicable to be invested in the purchase of real estate,) and moneys of his own, to his general account at his bankers', and then bought real estate, and paid for it by a cheque on his bankers, the Court held that such payment was made out of that part of the moneys standing to the general account which it was proper so to apply; i. e., the trust moneys (m).

Purchases in name of child or wife not within the 27th or 13th Eliz.; semble.

On purchase in name of stranger, resulting trust may be rebutted by parol evidence.

Land purchased with trust-money becomes impressed with trust.

As to proof of application of money.

(g) Sug. 916, 917.

(h) See Maddison v. Andrew, 1 Ves. S. 57, 61; Lloyd v. Spillet, 2 Atk. 148; Lane v. Dighton, Amb. 409; Benbow v. Townsend, 1 Myl.

&K. 506, 510.

(i) Price v. Blakemore, 6 Beav. 507.

(k) Sug. 919. (l) Ibid.

And where trust moneys are, in breach of trust, invested in the purchase of real estate, the cestuis que trust have the option of proceeding either for the money or the estate; or for a proportionate part of the estate, if the trust fund formed only a part of the consideration money (n).

If purchase be a breach of trust cestuis que trust can claim money or land.

(m) Manningford v. Toleman, 1 Coll. G70, see p. 674.

(n) See Att.-Gen. v. Corporation of Newcastle, 5 Beav. 307; 12 Cl. & Fin. 402. As to when a purchase is considered to be in performance of a covenant to settle land, see Sug. 920, and cases cited; and also the late case of .Ex parte Poole re Symes, 11 Jur. 1005. As to merger of charges, as between the real and personal representatives of the incumbrancer, on his purchasing the estates, see Hoods. Phillips, 3 Beav. 513.