The Foss Family

Arthur Edward Foss

Arthur Edward Foss
Arthur Edward Ford
photograph from The Natal Who's Who p69 (1906)
Birth: 25 January 1867, in Pietermaritzburg, Natal

Father: Richard Foss

Mother: Emily Ford

Education: Maritzburg 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.

Emily was born on 31 December 1870, the daughter of R. Bosomworth. She entered Maritzburg Girls Model Primary in December 1882 (Departmental Reports - Educational Returns for 1887 pU12). Emily died on 6 February 1899, aged 27, and is buried in Stanger cemetery, Natal.

Married (2nd): Emma Agnes Mildred Balcomb on 11 November 1903 in the Wesleyan Methodist Church, Kearsney, Lower Tugela, Natal
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.

Occupation: Solicitor

Notes:
The 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 A.A.A.

Death:
1948

Gravestone of Arthur Edward Foss
Gravestone of Arthur Edward Ford in the Old Cemetery, Stanger, Natal
photo by Rita Quebbemann at eGGSA
Buried: Old Cemetery, Stanger, Natal
The gravestone reads:
In Sacred Memory of Arthur Edward Foss <illegible>

Sources:

Eva Mary (Foss) Allsopp

Birth: 1869/70

Father: Richard Foss

Mother: Emily Ford

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.

Ernest was born in 1866/7, in Pondoland, the son of John Allsopp and Elizabeth Selby. He was an accountant, and a resident of Newcastle, Natal at the time of his marriage. Ernest died in 1951.
Census:
1881: High Street, Castle Donington, Leicestershire

Death:
1958

Sources:

Myrtle Emily Foss

Father: Richard Foss

Mother: Emily Ford

Sources:

Richard Foss

Birth: 1839/40

Married: Emily Ford on 30 April 1866 at the home of Mr. Richard Foss, Pietermaritzburg, Natal
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.

Children: Occupation: Wagon Maker

Death: 19 October 1895

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 re Foss.
  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 of £2,000.
  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 his wife.
  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. Div., 76.]
  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 rebate.
  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 that point.
  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 referred.
  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 action.
  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.] 
Sources:
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