Boys' Model School and Maritzburg High School
Married (1st): Emily Bosomworth on 11
October 1898 in the Boshoff St Church, Pietermaritzburg, Natal
Arthur Edward Foss is recorded as a bachelor, of full age. He is a
solicitor, resident in Stanger. Emily Bosomworth is recorded as a spinster,
of full age, resident in Maritzburg. The marriage was performed by A. E.
Howse and witnessed by G. W. Rogers and R. Bosomworth.
Married (2nd): Emma Agnes Mildred Balcomb on
11 November 1903 in the Wesleyan Methodist Church, Kearsney, Lower Tugela,
Arthur Edward Foss is recorded as a widower, of full age. He is an attorney,
resident in Stanger. Emma Agnes Mildred Balcomb is recorded as a spinster,
aged 20, resident in Kearsney and marrying with the consent of her father.
The marriage was performed by G. W. Coombe and witnessed by Inigo Balcomb
and H. C. Smith.
Emma was born in 1882/3 in East
Griqualand, Cape Colony, the daughter of Inigo Balcomb and Emma Mary
Rock. She died in 1957.
Natal Who's Who p69 (1906) FOSS, Arthur Edward, J.P., Advocate; b. 25th Jan., 1867 in Maritzburg;
e.s. of late Richard Foss; m. 4th Nov., 1904, Emma Agnes Mildred, 3rd d.
of Inigo Balcomb; 1 child. Educ. Boys' Model School and High School,
Maritzburg. Hobby: Gardening. Add., Stanger, Natal. President of Stanger
Gravestone of Arthur Edward Ford in the
Old Cemetery, Stanger, Natal
Married: Ernest Selby Allsopp on 23 April
1891 in the home of Mr. Foss, New England, Natal
Ernest Selby Allsop is recorded as a bachelor, aged 24. He is an accountant,
resident in Newcastle. Eva Mary Foss is recorded as a spinster, aged 21,
resident in New England. The marriage was performed by Ernest's father, John
Allsopp, a Wesleyan minister, and witnessed by L. V. Allsop and J. E. Foss. South Africa Magazine 30 May 1891 ALLSOPP-FOSS - On April 23, at New England,
Pietermaritzburg, by the Rev. J. Allsopp, father of the bridegroom, Ernest
Selby Allsopp, to Eva Mary, eldest daughter of Mr. Richard Foss.
Ford on 30 April 1866 at the home of Mr. Richard Foss,
Richard Foss is recorded as a bachelor, aged 26. He is a wagon maker,
resident in P.M.Burg. Emily Ford is recorded as a spinster, aged 17,
resident in P.M.Burg and marrying with the consent of her father. The
marriage was witnessed by E. Ford, C. Johnson and Selina Ford.
Shortly before his death, Richard made out a promissory note for £1000 to
Emily to augment the amount he had left her in his will. A legal case ensued
as the probate court asked an opinion as to whether Richard's estate was
bound by this note, with the Natal Supreme Court eventually deciding in
Emily's favour. Natal
Law Reports v17 pp122-125 (1896) 1896. May 11. In
In re TESTATE ESTATE OF RICHARD
FOSS. Donation. Promissory Note due after
Donor's death. Husband and Wife. Donation between Spouses.
The testator, during his last illness and ten days before his death,
passed a promissory note, due twelve months from date, in favour of his
wife. He handed the note to his wife, saying “I don't think 1 have done
justice to you under my will. I am better off now than when I made it.
Here is £1,000 more for you.” He also said that if he got over his
illness he would alter his will in his wife's favour to that amount, and
there was other evidence of an intention to make such further provision
for his wife:—HELD,
that this was a valid donation, and had been rightly paid by the
executors, though there should be a deduction for interest.
(In banco.—Before GALLWEY, C.J., and TURNBULL
and MASON, JJ.) Bale moved for
confirmation of the First Liquidation Account in respect of an item of
£1,000 paid by the executors to the widow of the testator, Richard Foss,
the account having already been confirmed save as to this payment, in
regard to which the Court desired to hear argument.
Richard Foss died on the 19th October, 1895. He had executed a will
bequeathing to his wife the household furniture and the interest on a sum
From the affidavits now submitted, it appeared that on the 8th
October, 1895, the testator who was slightly indisposed said to his wife
“I don t think I have done justice to you under my will. I am better off
now than when I made it. Here is £1,000 more for you.” He then handed to
his wife his promissory note for £1,000, due October, 1896, and said that
if he got over his illness he would alter his will in his wife's favour to
that amount. The note was then placed by the wife with her papers, and
after her husband's death, it was handed to the executors and had been
paid by them to the widow.
About three months before the testator's death, he informed his
wife that he intended to make further provision for her in his will, and
he sold some house property for £1,000, which it was understood was for
The guardian of the minor heirs, as well as the major
beneficiaries, agreed to the payment. Bale:—If the transaction
be regarded as a donation between husband and wife, there can be no
question as to its validity, in view of the decision in Williams
v. Williams (7 N.L.R., 93). It
would take effect at once, and if persisted in until death, would simply
be confirmed by death. Otherwise, the gift was a donation mortis
causa, taking effect at death. There can be no doubt that the
testator intended to give his wife £1,000. A promise to pay a gift at a
future date is good. At the most such a transaction is voidable, not void.
[He cited Grotius, Opin., P. de Bruyn,
385; Grotius, Maasdorp, 3, 2, 9,
22; Oliphant v. Grootboom,
3 E. D. R. 9; Van Leeuwen, Com.
4.12.1—5, 16, 25; Domat, Civil Law,
1.10.2 and 7; Sande on Restraints,
II., 3; Brink's Trustees v. Mechan, Rosc., 209; Van
der Byl's Executors v. Meyer,
1 Menz., 552; Burge, Col. Law,
II., 142; Burger's Executor v. David and others, 3 Menz., 468; Instit., II., 7; Comyn's
Civ. Law, 116.]
(He was stopped by the Court.)
The following judgments were delivered:—
MASON, J.:—In this matter, confirmation of the
executors' accounts has stood over in consequence of the payment, before
its due date, of a promissory note for £1,000, made by the testator, in
favour of his wife, a short time before his death. The postponement was
chiefly in view of the fact that the English authorities lay down that a
cheque given by a person who dies before it is cashed cannot be enforced
against his executor as a valid gift.
So far as I am concerned, the decisions of the English Courts are
not applicable to the present case, and personally I have great difficulty
in reconciling those decisions. [His Lordship referred to Duffin
v. Duffin, 44 Chan.
Our law recognises (1) gifts between husband and wife, and (2) a
promise to pay as distinguished from a gift with delivery.
With regard to the former, the case of Williams
v. Williams (vide supra),
shows that a gift between spouses is valid if confirmed by death, at any
rate where creditors are not concerned. In respect of the latter, the
authorities cited, and more particularly Voet.
24.1.5, settle the question. Voet there
says that there is no distinction between gifts between husband and wife
before delivery and a promise to pay. And further., that when there has
been no delivery, the donee acquires a civil obligation and a right of
action for enforcing payment.
These authorities, I think, settle the present case in favour of
Mrs. Foss, and they are confirmed, so far as I can judge, by the cases
cited in Mr Bale's argument—especially the passages from Domat.
I therefore think that we ought to confirm the accounts, but that
the executor, who has paid the note at once without allowing interest
during the period of its currency, should make a deduction by way of
TURNBULL, J.:—I am of the same opinion. I take Voet
(24.1.4) as showing that a gift between husband and wife is not
void; it may be confirmed by the death of the donor during the life-time
of the donee. Of course, the claims of creditors have priority, but here,
the donor's estate is perfectly solvent, so that no question arises on
A promissory note differs from a cheque, and is not therefore
covered by the English cases as to cheques. If the donor had been able to
do so he would probably have handed over to his wife the amount of the
note, and I look upon the latter as equivalent to cash, save in respect of
interest, which can be adjusted in settling up the estate. It was a valid
negotiable instrument, and it could have been used by the wife. The only
question as to the validity of such a gift is set at rest by the passage
in Voet to which I have
I therefore regard the donation as perfectly valid.
GALLWEY, C.J.: In considering cases of this kind, we
have to take into account the parties and their relation to one another.
The case would be very different if this was an action between trustees. I
question very much whether the £1,000 could be recovered in such an
As a matter of fact, however, it is only a family arrangement that
is before us, and without going closely into the facts, I have very grave
doubts whether the transaction is not more in the nature of a disposition
of the £1,000 by last will than a gift. The testator would have altered
his will if he had been able to do so.
I wish to refer to the case of Van
der Byl's Assignees v. Van der
Byl and others (5 Juta, 170), citing the Digest (24.1.48)
‘“Whatever a husband has given to his wife after marriage remains the
property of the husband, and may be recovered by him by means of a vindicatio, and it would make no
difference that large legacies have been left to him by his wife.” The
rule, no doubt, lost much of its stringency after the Senatus-Consultum of
Antoninus to the effect that all gifts invalid during the marriage should
become valid on the death of the donor, unless revoked during life or by
will, but still, while the marriage subsists, the invalidity remains”.
Under all the circumstances, and having regard to the equities of
the case and to the wishes of the testator, Mrs. Foss ought to be allowed
to receive the sum of £1,000 given to her by her husband. As the money has
been paid at once, interest will have to be deducted. Per curiam:—Order
accordingly. Costs to be paid out of the estate.
[Applicant's Attorney: ALFRED LISTER.]