The Foss Family
Adeline Dorothy (Foss) Kirby
1907/8, in South Africa
Arthur Edward
Foss
Emma Agnes Mildred (Balcomb) Foss
Percy Vaughan Kirby on 17 April
1937 in Stanger, Natal, South Africa
Percy Vaughan Kirby is recorded as a bachelor, aged 29, born in South
Africa. He is a compound manager, resident at ??, Transvaal. Adeline Dorothy
Foss is recorded as a spinster, aged 29, born in South Africa and resident
in Stanger. The marriage was witnessed by Arthur E. Foss and D. L. Fraser.
Geoffrey was born in 1907/8, in South Africa. He was a compound manager.
Arthur Edward Foss
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Arthur Edward Foss
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25 January 1867, in Pietermaritzburg,
Natal
Richard Foss
Emily
(Ford) Foss
Maritzburg Boys' Model School and
Maritzburg High School
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).
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Grave of Emily (Bosomworth) Foss in
Stanger cemetery, Natal
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Emily died on 6 February 1899 in Stanger, aged 27. The cause of death is
listed as miscarriage, hemorrage and exhaustion. She is buried in Stanger
cemetery, Natal.
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, and the sister of
Esther Wenham Balcomb who married Arthur's younger brother, George, in 1914.
She died in 1957.
Solicitor / attorney / advocate
South African Law Journal p520 (1906)
The South African Law List
Stanger, Natal
Arthur E. Foss (Arthur Edward Foss, J.P.), Advocate, Attorney and
Conveyancer. P.O. Box 61.
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.
Arthur played a key role in the founding of Kearsney
College in 1921.
Kearsney College Chronicle 1971 p30
A. M. Foss 1927-33
It is not very
much known or recorded, but my father, the late Arthur E. Foss was the
first Secretary appointed by Sir Liege Hulett to get on with the job of
starting the School. In fact, it was at a discussion between Sir Liege
and my Dad in 1920 that the idea was first conceived to found a second
Methodist School in South Africa and Sir Liege readily granted his old
home at Kearsney on the North Coast of Natal situated in the most
beautiful surroundings of tea fields and gum trees. As a lad of seven
years of age, I can at this moment still remember as if it had occurred
only yesterday, Mr. Robert Matterson walking through the gates of our
home, Duguza House, in Stanger to report to my father that he had
arrived and was proceeding to Kearsney to take over his duties as
headmaster.
Des Sinclair, one of the foundation pupils, has this memory of Arthur:
Kearsney College Chronicle 1971 p27
Des Sinclair 1921-24
After being a day boy at King Edward VII College in Johannesburg, aged
15, a veritable nincompoop, especially in matters rural, and a complete
stranger to Natal, I arrived at Stanger, en route to Kearsney College to
find I was to be one of its foundation scholars. May I be allowed to
draw a veil over the last word — scholar — in all its implications.
I was met by a Mr. Foss, the attorney for the school. He lived in
a hillside house above the town and took me there to spend the night.
After supper the Foss family and I went for a stroll to the town. As we
walked, one of the party suddenly pulled up. Mr. Foss switched on the
torch he was carrying and, to my horror, there was a snake rearing up
immediately ahead of us which, to my amazement, he killed very easily
with a light cane he was carrying. This incident somewhat shattered me.
12 February 1948, at Duguza House,
Stanger, Natal, South Africa, aged 81
The cause of death is listed as broncho-pneumonia (hypostatic) of duration 3
days, a result of hemiplegia
of duration 8 years.
Kearsney College Chronicle 1948 p270
Older Kearsney boys will be sorry
to hear of the death of two old friends: Mr. A. E. Foss, of Stanger, who
was the School's first secretary, and always maintained a keen interest in
the School; and Mrs. P. Haley, of Darnall and Umhlali, who so often
accompanied her husband to our Sunday services and other functions. To
Mrs. Foss and family, and to Mr. Haley and son, we offer our deep
sympathies.
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Gravestone of Arthur Edward Foss in the
Old Cemetery, Stanger, Natal
photo by Rita Quebbemann at eGGSA
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Old Cemetery, Stanger, Natal, South
Africa
The gravestone reads:
In Sacred Memory of Arthur Edward Foss <illegible>
Arthur Mervyn Foss
1914/5, in Natal
Arthur Edward
Foss
Emma Agnes Mildred (Balcomb) Foss
Kearsney College, Natal, South
Africa
Arthur attended Kearsney from 1927 until 1933, and was head boy of the
school in 1933. In a letter to the school magazine in 1971, Arthur describes
some of his schoolboy experiences:
Kearsney College Chronicle 1971 pp30-31
A. M. Foss 1927-3
NEW
BOY. In the year 1927, with my mother, I boarded the train to
Kearsney in Stanger very proudly wearing my maroon and white school cap
and the school tie, for the first time. Being January, it was too hot
for jackets! The train was driven by Mr. Brandon and the distance of
five miles took one and a quarter hours.
During the years 1927 to 1930 inclusive, I was a day scholar at
the School and lived with my Aunt at the Kearsney Post Office which was
known as Tudor Hill situated approximately one mile from the School. I
often think how very lucky I was as a young lad. There were not more
than 75 boys at the School and my Aunt was a terribly kind lady, and I
used to have this beautiful walk from Tudor Hill to the School through
the beautiful avenue of gum trees everyday of my life. Two occurrences
stand out still in my memory very clearly. My route to the School from
the Post Office was through the gum trees, past the graveyard attached
to the chapel then up the driveway to the School itself.
DEATH OF SIR LIEGE. In
1928 the School founder, Sir Liege Hulett, died and we all attended his
funeral, particularly I as he was my great-uncle. It had all been a very
sad and grim day and there were literally thousands of wreaths all over
the graveyard. That night I settled down to do my prep when I suddenly
discovered that 1 had left one of the key books back at School. There
was no alternative but to get on my bicycle and ride back to the School
in the pitch dark night to get this book. The journey, of course, meant
I had to go past the graveyard all on my ownsome and I really think the
spooks have lived with me ever since! The other occasion was after
rugger practice when, as you know, the sun sets rather early in winter
in Natal. By the time I had had my shower at the School and was walking
home, it was again almost pitch dark with a faint moon. I was walking
through the gum tree plantation, the distance of which was about a
quarter of a mile, and I was feeling rather tired and dreamy when
suddenly there was a tremendous commotion right under my feet and my
heart simply jumped into my throat. A rabbit that had been sound asleep
had been almost trodden on by me.
A third occasion which stands out rather vividly on the same
route occurred actually in 1931 when I was a boarder. Early prep used to
stop at 9 p.m. and then first-year matrics and matrics, after a break,
could continue with late studies. My directive was at 8.45 p.m. to put
up my hand and ask to be excused to go to the toilet. Ken Balcomb was
the prefect taking prep that night and he granted my request. The
toilet, of course, was an excuse but the real object was to go
hell-for-leather to my Aunt at the Post Office to collect milk, cake and
sugar for tea. Aunt Dora had everything ready for me and I grabbed the
parcels and ran back to School to try to get there just before the break
in the preps. Everything went fine and I was running up the last 25
yards to get to the classroom where Basil Coventry, The Nightingales,
and a few others were eagerly waiting when I tripped over a gum tree
root and everything sprawled in the sand. I was beautifully skinned but
I had absolutely no sympathy whatsoever from any of my schoolmates. We
were a very happy family in the old School as all who were there will
endorse.
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Margaret Doidge
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Margaret Doidge on 13 July 1940 in
All Saints Church, Ladysmith, Natal, South Africa
Arthur Mervyn Foss is recorded as a bachelor, aged 25, born in Natal. He is
an insurance agent, resident in Stanger. Margaret Doidge is recorded as a
spinster, aged 23, born in Natal. She is a teacher, resident in Stanger. The
marriage was witnessed by Enid Royden Turner and John Freeman.
Margaret was born on 4 June 1917, in Natal, the daughter of William Howie Doidge and Beryl Evelyn Birkett. She was a
teacher.
Insurance Agent
Right out of high school, Arthur was employed at Henwoods,
a department store in Durban. He later worked for South African Mutual and
National Mutual.
Kearsney College Chronicle 1934 p37
A. M. FOSS has
secured a post with Henwoods of Durban, and is reported to be getting on
very well there. He has joined the Wanderers' Club, and has been playing
regularly for them, though he has been rather unfortunate in being put
to play in almost every position on the field.
Kearsney College Chronicle 1946 p120
A.
M. Foss (27-33), living at Eshowe, is sole agent for the S.A.
Mutual from Stanger to Swaziland, and is travelling practically the
whole time.
Kearsney College Chronicle 1952 p229
A.
M. Foss (27-33) is managing the Pietermaritzburg Branch of the
South African Mutual.
Kearsney College Chronicle 1952 p283
A.
M. Foss (27-33), Vice-President of the Club, has left the S.A.
Mutual, Pietermaritzburg, to become Business Manager of the National
Mutual Liberal Association of Australasia, Durban.
Kearsney College Chronicle 1957 p334
A.
M. Foss (27-33) has been transferred to Johannesburg on
promotion with the National Mutual. His address will be P.O. Box 2302,
and he looks forward to meeting Old Boys up there.
Kearsney College Chronicle 1963 p349
A.
M. Foss (27-33) started a new venture in Insurance Broking in
Johannesburg two years ago and is prospering very well.
Arthur served in World War II with
the Natal Mounted Rifles, then seconded to the Royal Scots Fusiliers,
reaching the rank of major.
Kearsney College Chronicle 1943 p261
On
Friday, February 5th, Capt. A. M. Foss, who was Head Prefect in 1933,
paid us a flying visit while on leave, and gave the School an
interesting address on his experiences with the N.M.R. in Abyssinia and
Egypt. He stressed particularly the difference in fighting spirit
between the Italians and Germans, and showed how near we came to
disaster at El Alamein. The talk was of particular interest as there
were more Old Boys in the N.M.R. than in any other Regiment.
Kearsney College Chronicle 1944 p355
Capt.
A. M. Foss (27-33). I have been seconded to the British Army
and am now with the Royal Scotch Fusiliers. So I have achieved one of my
life's ambitions—a commission in one of Britain's Regular Battalions.A
glengarry covers my head, but trews and not kilts supply the necessary
covering for other parts. Since coming across to Italy practically all
my time has been spent on Anzio beach-head, so you will realise that
time is not quiet. I have been mixed up in a few "mills" and seen quite
a lot of "hate" thrown about.
Kearsney College Chronicle 1945 p23
Major A. M.
Foss (27 -33) is one of five Springboks to have been serving with
Monty's 2nd Army in their sweep across northern Europe. He is with the
Royal Scots Fusiliers. His experiences, on some less censorable
occasion, should be well worth hearing. We learn that he was put in
charge of the peace-time reorganisation of a German town. He had a
week's leave, at Easter, spent in London, where he broadcast to South
Africa from the Springbok Club. He went to the Easter Service at St.
Paul's, but was a little late, as the underground railway system became
too much for him, and he passed his station twice! Later he managed to
see "Hamlet" at the Haymarket.
Kearsney College Chronicle 1945 p74
A. M. Foss (27-33) recently
returned from Germany, where he nearly achieved the distinction of
being the first Springbok to reach Berlin. He was last stationed with
the R.S.F. at Magdeburg. When demobbed, he expects to return to the
S.A. Mutual.
Cecil Christian Foss
8 August 1882, in Pietermaritzburg,
Natal
Richard Foss
Emily
(Ford) Foss
Leila Mary Perry on 2 January 1919
in Trinity Wesleyan church, Stanger, Natal, South Africa
Cecil Christian Foss is recorded as a bachelor, aged 36. He is a
book-keeper, resident in Stanger. Leila Mary Perry is recorded as a
spinster, aged 21, resident in Stanger, married with the consent of the
parents of the bride, Frank and Bessie Perry. The marriage was witnessed by
E. J. Clayton and E. E. Perry.
Leila was born on 31 December 1897, in Natal, the daughter of Frank Perry and Bessie Hunt. She died in 1987.
Bookkeeper
Cecil was the subject of a special
provision in his
father's will, dated 5 April 1884, when Cecil was less than 2 years
old.
And I also further direct my said
Trustees, to hold and retain the sum of Five hundred pounds, Stg, the same
to be obtained and invested in the same manner as the before mentioned sum
of Two Thousand pounds. Upon trust, to pay and apply the annual interests,
and other income derivable therefrom to and for the maintenance,
education, and benefit of my son, Cecil Christian Foss, during his
minority, and on his obtaining the age of twenty one years complete, to
pay to him the said sum of Five hundred pounds, or to transfer, convey,
and make over to him, the security or securities, representing the said
sum, for his own use and benefit absolutely. Declaring, however, that this
special provision to my said son Cecil Christian Foss, is made in
consequence of his bodily infirmity, he suffering at the date hereof from
rupture:- and should he recover from the said infirmity, before he attains
the age of twenty one years, then and in that case the said bequest of
Five hundred pounds, shall lapse and the said sum shall revert to and
become a portion of my residuary estate, and be divided equally, among my
said children including the said Cecil Christian Foss, together with my
said residuary estate, of which it shall then form a part.
"Rupture" is a fairly ambiguous medical term, and it is unclear how long
Cecil had this infirmity. At any rate, Cecil lived to the age of 67 years.
16 May 1950, at Boksburg-Benoni
Hospital, Boksburg, Transvaal, South Africa, aged 67
The cause of death is listed as pulmonary
emphysema of duration approximately 20 years.
Benoni cemetery, Benoni, Transvaal,
South Africa
dated 23 April 1949
Transvaal
Estate Files 1950 #2834 film 007830394 images 980-1
THIS is the Last Will and Testament
of me CECIL CHRISTIAN FOSS, married by Antenuptial Contract out of
community of property to LEILA MARY FOSS (born Perry)
I HEREBY revoke, cancel and annul all former Wills, Codicils and
other Testamentary dispositions heretofore made or executed by me and
desire the same to be of no force or effect whatsoever.
I HEREBY nominate and appoint WILLIAM GEORGE DUTTON of Walburton
Manor, Parktown, Johannesburg, to be the Executor of this my Will and the
Administrator of my Estate and Effects, hereby giving and granting unto
him all such powers and authority as are allowed by law, especially the
power of Assumption, and I direct that he shall be absolved from
furnishing security to the Master of the Supreme Court in respect of his
appointments.
I HEREBY give, devise and bequeath the whole of my Estate and
Effects, movable and immovable and wheresoever situate, whether in
possession, reversion, expectancy or contingency, nothing excepted, unto
my wife, the said LEILA MARY FOSS.
In the event of my said wife predeceasing me or of our simultaneous
death, I give, devise and bequeath the whole of my Estate and Effects,
nothing excepted, unto my two daughters, FLORENCE JOAN FOSS and BERYL
DOREEN DUTTON (born Foss), in equal shares.
IN WITNESS WHEREOF I have hereunto set my hand at DURBAN on this 23rd day
of April, in the year of Our Lord One Thousand Nine Hundred and Forty-Nine
(1949) in the presence of the undersigned witnesses, all being present at
the same time and who, together with me, have hereunto subscribed their
signatures in my presence and in the presence of each other.
SGD. C.C.FOSS.
AS WITNESSES:
1. E. FOWL?? SGD.
2. D. EDWARDS SGD.
1919: Stanger, Natal (Natal
Civil Records Marriages 1919 Lower Tugela #1)
1950: Plot 204, Eva Road, Fairleads, Benoni, Transvaal (Transvaal
Estate Files 1950 #2834 film 007830394 image 976)
Esther Agnes (Foss) Jennings
1904/5, in Natal
Arthur Edward
Foss
Emma Agnes Mildred (Balcomb) Foss
Geoffrey Harold Jennings on 19 June
1948 in St James's Church, Durban, Natal, South Africa
Geoffrey Harold Jennings is recorded as a bachelor, aged 44, born in
England. He is an engineer, resident in Stanger. Esther Agnes Foss is
recorded as a spinster, aged 43, born in Natal. She is a conveyancing clerk,
resident in Stanger. The marriage was performed by P. W. A. Geils and
witnessed by G. C. Jennings and Mildred Foss.
Geoffrey was born in 1903/4, in England. He was an engineer.
Conveyancing Clerk
Eva Mary (Foss) Allsopp
28 November 1869
Richard Foss
Emily
(Ford) Foss
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 on 21 October 1866, in Palmerton,
Pondoland, the son of
John Allsopp and Elizabeth Selby. He was an accountant, employed by the
Natal Bank starting in October 1892 and retiring in 1921. Ernest died on 29
July 1951.
John Allsopp
papers in Campbell Collections 90/07
Ernest Selby Allsopp was born on 21 October, the
second child of Rev. John Allsopp and Elizabeth Selby Allsopp. He was born
at Palmerton, Pondoland Mission Station. In 1878 he was sent to High
School in Pietermaritzburg with his elder brother and in 1879 his mother
took the family of five sons and two daughters to England for schooling.
They returned in 1882, and in October of that year Ernest Allsopp joined
the staff of the Natal Bank in Pietermaritzburg. In 1891 he married Eva
Mary Foss, daughter of Richard Foss of New England, Natal. They had two
daughters and a son (who died in infancy). He retired from the bank's
service in 1921.
Census & Addresses:
1881: High
Street, Castle Donington, Leicestershire
1891: Newcastle, Natal ( Natal
Civil Records Marriages 1891 Pietermaritzburg #630)
1933: 77 Windmill Road, Durban, Natal (Who's
who in Natal 1933 p12)
- Jessie Emilie Allsopp
- Loris Evelyn Allsopp
3 February 1958
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Gravestone of Ernest Selby Allsopp and Eva
Mary (Foss) Allsopp in the Methodist church cemetery, Cato Ridge,
Natal
photo by Pam Smith and Charleen Voster
at eGGSA
|
Methodist church cemetery, Cato
Ridge, Natal, South Africa
The gravestone reads:
In Loving Memory of
ERNEST SELBY ALLSOPP
21.10.1866 - 29.7.1951
Thy Will be done
and of
EVA MARY ALLSOPP
born FOSS
28.11.1869 - 3.2.1958
Peace I give unto you
- death notice of father
at Pietermaritzburg
Estate Files 1895 #295 film 004049921 image 395
- death notice of father
at Pietermaritzburg
Estate Files 1895 #295 film 004049921 image 395; South Africa Magazine 30 May 1891
- Natal
Civil Records Marriages 1891 Pietermaritzburg #630; South Africa Magazine 30 May 1891;
Ernest birth from photograph
of headstone in Methodist church cemetery, Camperdown, Natal posted at
eGGSA with place from National
Archives of South Africa (NAB MSCE 1788/1951) Text: ALLSOPP,
ERNEST SELBY. BORN IN PONDOLAND S.SP. ALLSOPP, EVA MARY. (BORN FOSS)
DECEASED ESTATE. and exact place from John
Allsopp papers in Campbell Collections 90/07; Ernest father from South Africa Magazine 30 May 1891;
Ernest mother from Natal
Civil Marriages #1955; Ernest occupation from Natal
Civil Records Marriages 1891 Pietermaritzburg #630; Ernest death
from photograph
of headstone in Methodist church cemetery, Camperdown, Natal posted at
eGGSA
- National
Archives of South Africa (NAB MSCE 306/1958) Text: ALLSOPP, EVA
MARY. BORN FOSS. PR/SP ALLSOPP, ERNEST SEEBY. ESTATE NO. 1788/1951.
DECEASED ESTATE.; exact date from photograph
of headstone in Methodist church cemetery, Camperdown, Natal posted at
eGGSA and Pietermaritzburg
Estate Files 1922 #7724 DGS 007866843 image 1149
- Photograph
of headstone in Methodist church cemetery, Camperdown, Natal posted at
eGGSA
George Prince Foss
19 June 1871, in Pietermaritzburg,
Natal
Richard Foss
Emily
(Ford) Foss
Esther Wenhem Balcomb on 17 June
1914 in Wesleyan church, Kearsney, Natal
George Prince Foss is recorded as a bachelor, of full age. He is a merchant,
resident in P'Maritzburg. Esther Wenham Balcomb is recorded as a spinster,
of full age, resident in Kearsney. The marriage was witnessed by C. H.
Rider, L. M. Balcomb and Myrtle E. Foss.
Esther was the daughter of Inigo Balcomb and Emma Mary Rock, and the sister of
Emma Agnes Mildred Balcomb who married George's older brother, Arthur, in
1903. She died in 1962.
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Foss & Shaw in Pietermaritzburg
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Hardware Merchant
George was the founder of the firm Foss & Shaw in Pietermaritzburg.
5 November 1954, at 2 "Beau View",
377 Bulwer Street, Pietermaritzburg, Natal, South Africa
The cause of death is listed as chronic myocardial degeneration caused by
hypertension and arterio-sclerosis of duration years.
Mountain Rise cemetery,
Pietermaritzburg, Natal, South Africa
1914: Pietermaritzburg, Natal (Natal
Civil Records Marriages 1914 Lower Tugela #8B)
1954: 2 "Beau View", 377 Bulwer Street, Pietermaritzburg, Natal
(Natal
Civil Records Deaths 1954 Pietermaritzburg film 007751546 image 382)
Herbert Charles Foss
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Herbert Charles Foss
|
25 March 1868, in Pietermaritzburg,
Natal
Richard Foss
Emily
(Ford) Foss
Nellie Maud Putterill on 17 March
1900 in St Cyprian's Church, Durban, Natal
Herbert Charles Foss is recorded as a bachelor, aged 31. He is a contractor,
resident in Durban. Nellie Maud Putterill is recorded as a spinster, aged
20, resident at Fox Hill, Maritzburg and marrying with the consent of her
father. The marriage was witnessed by John Henry Oldfield and Wilmore F.
Putterill.
Nellie was born on 21 June 1879, at Beauchef Abbey farm, Harrisburg
district, Orange Free State, the daughter of Thomas Oliver Putterill and Josephine Bingham. She died in
1960.
- Eva Amethyst Foss
- Josephine Eleanor Foss
- Richard Thomas Foss
- John George Foss
- Herbert Russell Foss
Contractor, businessman, town
councillor, garage proprietor
In 1900, Herbert was was a resident of Ladysmith during the Siege
of Ladysmith, part of the Second
Anglo-Boer War.
New Zealand Herald 5 February 1900 p1
SIEGE OF LADYSMITH.
MOVEMENTS OF NOVEMBER.
INCIDENTS AND HUMOURS.
[FROM OUR WAR CORRESPONDENT IN NATAL.]
Durban, December 8.
Mr. W. F. Michell, telegraphist, who spent November in Ladysmith, gives an
interesting account of the events of that month, and sidelights on the
life of its inhabitants.
...
FIREWORKS DAILY.
...
In order to
vary the monotony of existence, some Ladysmith civilians take an
occasional walk to Convent Hill to view the fireworks. Mr. Foss has
constructed a redoubt behind his house on this hill, in which he takes
shelter when "Long Tom" is being fired, and, to know that this
precaution is necessary, one has only to be told that the Louse lies
directly opposite the formidable weapon of destruction. When "Slim Piet"
is fired, Mr. Foss retires to the other side of the house, and waits
until the shells burst, when he comes out to view the results. One shell
that fell in our garden made a hole 10ft wide by 12ft long and 3ft deep.
Later in the siege, as morale dropped and paranoia grew, Herbert was
sentenced to a year in prison for making false statements deemed harmful to
the morale of the besieged town.
Indianapolis Journal 15 February 1900 p5
FOR DISCOURAGING TROOPS.
Resident of Ladysmith Court-Martialed and Sentenced.
LADYSMITH, Feb. 8.—H. C. Foss, a resident of Ladysmith, has been
court-martialed and sentenced to a year's imprisonment at hard labor for
circulating false reports calculated to discourage the troops and for
advising soldiers to desert. Mr. Foss, who is a native of Natal, resided
for some time in the Free State. He had been twice warned for asserting
that the garrison was on the eve of starvation and capture.
H. H. S. Pearse offers a personal view of Herbert's transgression in a
letter published in
Four Months Besieged pp222-3 (H. H. S.
Pearse, 1900)
February
8.—
A long message was heliographed through just before sunset, and rumours
of ill news are whispered about with bated breath by people who wish to
establish a reputation for early knowledge, but at the risk of being
charged before a court-martial with the dissemination of news calculated
to cause despondency. We had a case of that kind the other day when
Foss, the champion swimmer of South Africa, was rightly convicted and
sentenced to imprisonment for deprecating the skill of our generals in
conversation with soldiers. Tommy may hold his own opinions on that
point, but he resents hearing them expressed for him through a pro-Boer
mouthpiece, and this man may consider himself lucky to escape summary
chastisement as a preliminary to the durance vile which is intended to
be a wholesome warning for others of like tendency.
Natalia 29 pp85-86 (1999)
'Maritzburg
during the Siege of Natal'
Not all
Maritzburg's boys. it turns out, served at the front with equal honour.
One character who earned himself dishonourable mention in the Ladysmith
siege might well — a hundred years later — stir up psychological
interest. In the official war bulletin for 14 February there is reported
the court-martial and imprisonment, in Ladysmith, of one Herbert Foss,
for 'circulating reports calculated to cause despondency among the
troops'. He was, says the report, 'warned by several civilians. The only
wonder is that he was not locked up sooner. ... ' I might have left that
news item to anonymity had I not discovered in the 'Sporting
Intelligence' of the same edition, an unexpected sequel:
Herbert Foss, Natal champion swimmer, and latterly an
aspirant tor cycling honours, appears to have fallen upon evil times in
Ladysmith ... One cannot help feeling sorry for one who was regarded as
being made of better stuff. ...
I suppose every war throws up such lone, highly self-disciplined
types, whose trace of mania takes them in a rebellious direction. One
wonders whether Herbert Foss was able to patch up his life again after
the war, and, if so, in what part of the world he did so.
"Patching up his life" didn't seem to take too long. It is unclear how much,
if any, of his prison sentence was actually served. Ladysmith
was relieved by British troops on 1 March 1900, and Herbert signed an
antenuptial
contract in Durban on 17 March 1900 and wrote
a will on 14 June 1900 giving his residence as being in Lower
Umkomaas. That he was elected a town councillor in Ladysmith by 1906
indicates that the town did not hold too much of a grudge.
Twentieth Century Impressions of Natal p300
(1906)
COUNCILLOR H. C. FOSS
Councillor H. C. Foss is a native of Natal, having been born at
Pietermaritzburg in 1868. After being educated in that town he was
apprenticed to the wagon-building trade. On the expiration of his
indentures he turned his attention to building and contract work, and in
the course of his career put up many prominent buildings in Ladysmith.
He represents Ward No. 2 in the Town Council, and is a member of the
committee of the Ladysmith Permanent Building Society. He is also senior
partner in the firm of Foss & Co., millers and produce-dealers. As
an athlete his extraordinary versatility and success as a champion
swimmer, cyclist, and sprinter, are alluded to in the Sporting Section.
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Herbert Charles Foss
(A Prominent Country Cyclist)
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p551
H.
C. FOSS
Amongst up-country athletes should be mentioned Councillor H. C.
Foss of Ladysmith, who, as one of the amateur athletes of Natal, holds
an unbeaten record. He held the Swimming Championship for fourteen
years, and retired unbeaten. He is one of the best sprinters in South
Africa, and on one occasion he started 18 times as a cyclist within two
months, winning 15 times, and being second once, and third once. He is
the proud possessor of the cup for best aggregate cycling, besides being
the holder of numerous other cups, prizes, and trophies of various
kinds. He is also one of the best tennis players in Ladysmith.
16 September 1945, at the Sanatorium,
Ladysmith, Natal, South Africa, aged 77
The cause of death is listed as old age of duration 6 months.
dated 14 June 1900
Pietermaritzburg
Estate Files 1945 #1880 film 007869121 images 889-90
THIS IS THE LAST WILL AND TESTAMENT of me HERBERT
CHARLES FOSS, presently of Lower Umkomaas, Colony of Natal, Contractor.
I hereby revoke all former Wills and Testamentary Dispositions made
by me and declare this to be my last Will and Testament.
I appoint my brother, ARTHUR EDWARD FOSS, of Stanger, Colony of
Natal, Solicitor, and my wife, NELLIE MAUD FOSS, (born Putterill) to be
the Executor and Executrix of my Will, Administrator and Administratrix of
my Estate, and Guardians of my minor children, giving and granting unto
them all powers and Authorities allowed in law especially those of
assumption, substitution and surrogation.
I devise and bequeath one moiety of all my Estate and effects of
whatsoever nature or kind and wheresoever situate unto my said wife for
her own and absolute use and benefit, and I devise and bequeath the other
moiety of my said Estate and effects unto my children born of my marriage
with my said wife in equal shares; and should any one or more of my said
children die during my life-time leaving lawful issue, then the
descendants of such deceased child or children shall succeed to his, her
or their share or shares. And I direct that it shall be competent for my
Executors either to sell the whole or any part or parts of my Estate and
effects as shall not consist of ready money, and divide the proceeds as
aforesaid, or to have the same value by two impartial and competent
valuers and to cede, assign, transfer and make over the same to my said
wife upon her paying or giving security to my Executors for the moiety
hereinbefore bequeathed to my children. And I direct my Executors to
invest the shares due to my children upon good security and to apply the
income and proceeds arising therefrom to the education and maintenance of
my children until they respectively shall attain the age of twenty one
years.
And I further direct that in every case where a female takes
benefit under this my Will, the same shall be taken and held by her
exclusive of the jus mariti right of administration or any other marital
right of any husband she may have married or may mrry and shall not be
attachable for any such husband's debts or liabilities.
I reserve to myself the power from time to time and at all times
hereafter to make all such alterations in or additions to this my Will as
I may think fit either by a separate act or at the foot hereof, declaring
that all such alterations and additions legally made under my signature
shall be as valid and effectual as if inserted herein.
In witness whereof I the Testator have hereunto set my hand at
DURBAN, the 14th day of JUNE, Nineteen hundred.
(Signed) H. C. FOSS.
Signed by the said Herbert Charles Foss the Testator in the presence of us
then both present together who in his presence and in the presence of each
other have subscribed hereto as Witnesses.
(Signed) H. C. FIELD
(Signed) S. S. FIELD
During probate of this will, Herbert's five
children jointly renunciated their benefits in favour of their mother.
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Gravestone of Herbert Charles Foss in Main
cemetery, Ladysmith, Natal
photo by Chris and Petra Lombard at eGGSA
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Main cemetery, Ladysmith, Natal,
South Africa
The gravestone reads:
In Loving Memory of
HERBERT CHARLES FOSS
Died 16th Sept. 1945
1900: Ladysmith, Natal (antenuptial
contract)
1900: Durban, Natal (Natal
Civil Records Marriages 1900 Durban #683)
1945: Colenso, Natal (Natal
Civil Records Deaths 1945 Klip River film 007751189 image 2626)
- death notice of father
at Pietermaritzburg
Estate Files 1895 #295 DGS 004049921 image 395; place from death
notice at Pietermaritzburg
Estate Files 1945 #45 film 007869121 image 888
- death notice at Pietermaritzburg
Estate Files 1945 #45 film 007869121 image 888; death notice of father at Pietermaritzburg
Estate Files 1895 #295 film 004049921 image 395
- Natal
Civil Records Marriages 1900 Durban #683; Nellie birth from
probate records of father at Pietermaritzburg
Estate Files 1913 #61 film 007864592 image 816 with place from National
Archives of South Africa (NAB MSCE_#_1202/1960_1) Text: FOSS,
NELLIE MAUD. BORN PUTTERILL. BORN IN BEAUCHEE ABBEY, DISTRICT
HARRISMITH, ORANGE FREE STATE. PRSP FOSS, HERBERT CHARLES. ESTATE NO.
1880/1945. DECEASED ESTATE.; Nellie parents from death notice of father at Pietermaritzburg
Estate Files 1913 #61 film 007864592 image 817; Nellie death from
National
Archives of South Africa (NAB MSCE_#_1202/1960_1) Text: FOSS,
NELLIE MAUD. BORN PUTTERILL. BORN IN BEAUCHEE ABBEY, DISTRICT
HARRISMITH, ORANGE FREE STATE. PRSP FOSS, HERBERT CHARLES. ESTATE NO.
1880/1945. DECEASED ESTATE.
- death notice at
Pietermaritzburg
Estate Files 1945 #45 film 007869121 image 888
- Natal
Civil Records Marriages 1900 Durban #683 (1900); Twentieth Century Impressions of Natal p300;
garage proprietor from Natal
Civil Records Deaths 1945 Klip River film 007751189 image 2626
- Natal
Civil Records Deaths 1945 Klip River film 007751189 image 2626
- Photograph
of headstone in Main Cemetery, Ladysmith, Natal posted at eGGSA
Jessie Elizabeth (Foss) Fowle
22 September 1872, in Natal
Richard Foss
Emily
(Ford) Foss
Leonard
Theodore Fowle on 8 March 1900 in the house of the bride's mother,
Pietermaritzburg, Natal
Leonard Theodore Fowle is recorded as a bachelor, of full age. He is a
schoolmaster, resident in Maritzburg. Jessie Elizabeth Foss is recorded as a
spinster, of full age, resident in Maritzburg. The marriage was performed by
A. E. Howse, and witnessed by Arthur E. Foss and Emily Foss.
Leonard and Jessie signed an antenuptial
contract on 7 March 1900.
3 April 1961
1900: Pietermaritzburg, Natal (Natal
Civil Records Marriages 1900 Pietermaritzburg #817)
1942: 7 Ellis Brown Road, Durban, Natal (Pietermaritzburg
Estate Files 1942 #24491 film 007869083 image 1807)
Myrtle Emilie Foss
19 December 1887, in
Pietermaritzburg, Colony of Natal
Richard Foss
Emily
(Ford) Foss
Myrtle was First Reader,
a lay leadership position, in the Pietermaritzburg branch of the Christian
Science church.
The
Christian Science Journal 1920 page vii
CHRISTIAN SCIENCE CHURCHES AND SOCIETIES
PIETERMARITZBURG Society—First
Reader Miss Myrtle E Foss—Sunday 11 AM, 7.15 PM; Wed 8 PM—187 Longmarket
st. Reading Rm 10.30 to 2 PM; Sat to 1—Bank st.
The will of her mother, Emily, set out that Myrtle should have use of the
house at 61 Burger Street until her death, after which it would be sold and
the proceeds divided amongst Emily's other children, or their descendants.
Myrtle lived a long time and in 1973, aged 85, she made an application to
the court, with the support of the various other descendant due to inherit,
to sell the property and be provided with the investment income of the sale
for her maintenance, the capital to be divided amongst the heirs on her
death (Pietermaritzburg
Estate Files 1922 #7724 DGS 007866843 images 1144-50).
1973: 265 Prince Alfred Street, Pietermaritzburg, Natal (Pietermaritzburg
Estate Files 1922 #7724 DGS 007866843 image 1144)
Richard Foss
The baptism record names Richard as "John Richard" but all other records,
including the birth registration as well as marriage and death records, name
him as just Richard.
28/29 October 1839, in New Forest,
Hampshire, England
1 March 1840 in Saint Mary,
Portsea, Hampshire, England
Ambrose Foss
Mary (_____) Foss
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.
The antenuptial contract between Richard and Emily, assisted by her father
Edward Ford, can be found at Pietermaritzburg
Estate Files 1895 #295 DGS 004049921 images 404-5. The marriage
license application, giving the consent of Emily's father can be found at Natal
Marriage Declarations 1866 p307 DGS 008154854 image 691
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Emigrants on the Lady
Bruce (1850)
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Richard, then 10 years old, emigrated
to Natal with his parents and siblings in 1850 in the Duke of Buccleuch’s
party from Hampshire, associated with the Byrne emigration scheme. The
family sailed on
the Lady Bruce which sailed
from Portsmouth on 25 February 1850, and arrived at Port Natal on 9 May
1850.
Natalia 5 pp39-40 (1975)
The
Duke's People
The Duke
of Buccleuch bought 1 000 acres of land in Natal in the vicinity of the
upper Ilovo river, naming it 'Beaulieu-on-the-Illovo'. He financed and
made himself responsible for the emigration of more than 40 of his
hard-hit tenants, providing them with farm implements, seed, provisions,
stoves and tents. In his account book for 1850 is a fully audited record
of the 'Emigration Expenses'.
On February 25, 1850, the little band of emigrants who, in later
years, were referred to as 'they old Port Nataliers', by their relatives
and friends in England, took their final farewell and, waving gaily,
embarked on the barge John Samuel
at Buckler's Hard. But as they sailed down the Beaulieu river to join
the Lady Bruce (350 tons),
lying in the Solent, the Master of the John
Samuel put his barge aground on the mud on the Exbury shore —
rather an anticlimax at the beginning of their great adventure! From
this apparent evil omen there were no ill-effects for they arrived
safely in the Lady Bruce off
Durban Bay in June 1850.
After a voyage of what must have been four months of sheer
misery, the settlers had to scramble from rope ladders down the side of
the ship, or jump into surf boats or be carried on the backs of natives
before they could set foot on the land of their adoption. Once ashore,
they had to pitch camp, for in those early days Durban consisted of
a few wattle and daub dwellings. While the wives and children
managed as best they could in their camp on the beaches, their men,
anxious to see the land on which they were to settle, set off for the
interior, often on foot, struggling through tall grass, thick bush and
under a burning sun, in search of their land. Having staked their claim
they returned to Durban, hired ox-wagons and trekked with their families
and belongings to start their new homes.
Thus it was that 'The Duke's People', as they became known in
Natal, came to settle at Beaulieu-on-the-lllovo. But as time went on,
they found this name too cumbersome and too confusing with the Beaulieu
they had left behind. At a meeting in 1853, they drew up a petition
requesting their benefactor to change the name. It so happened that the
Duke of Buccleuch received their petition while he was staying at his
favourite residence, Buccleuch House, at Richmond, Surrey, and so
Richmond it became!
On the whole, despite great hardship, the 'Duke's People' were
fairly satisfied with their lot. Their land lay in a fertile basin
surrounded by soft rolling hills with good soil and pasturage and a
regular rainfall. Perhaps the land of their adoption was not so unlike
the country they had left behind them.
From the lovely indigenous forests, yellow-wood trees provided
the timber for homesteads and furniture. Game abounded in the colony —
lion, leopard, buffalo, elephant and many species of antelope. Cattle
could be bought from the natives for 30 shillings a head and fowls were
three pence each.
British
Settlers in Natal: 1824-1857 (Dr. Shelagh O'Byrne Spencer)
Hampshire settlers – the Duke
of Buccleuch’s party
Walter Francis Scott, the 5th Duke, had supported the repeal of the
Corn Laws in 1846. To alleviate the consequent distress among the rural
population, he arranged for parties to emigrate to the colonies. Most of
them went to Australia and New Zealand, but a small group of his Hampshire
tenants came to Natal. They were from the New Forest//Beaulieu region.
Passages were obtained on J. C. Byrne & Co.’s ship, the Lady Bruce,
and ‘the Duke’s people’, as they came to be known, were located on the
Illovo river, not far from the Wesleyans’ Indaleni Mission Station.
The expenses for wagon-hire to their allotments and survey fees
were charged to the Duke’s account by John Moreland, and the Duke also met
the costs of flour, tents, and seed. He even donated L100 to
Pietermaritzburg’s Anglican minister, the Revd James Green, to be used
towards the construction of a church in their new settlement. Their rural
allotments were on land which was given the name Beaulieu Estate, and
Beaulieu was the name given to the village. Because of the similarity in
the names of the two entities confusion arose with land titles, and before
the year was out the nearby village had been renamed Richmond after the
Duke’s seat in Richmond, Surrey.
According to the records in the Duke’s papers, these emigrants were
44 in number, but the Lady Bruce passenger lists reflect only 37 souls,
five family groups and nine single young men. Of the latter only two
appear to have remained in the Colony, viz. James Alexander Westbrook and
his brother Henry Fletcher Westbrook. Early on these two were working in
the Karkloof forests as sawyers, but they finally settled in the New
Hanover district. The five families were those of Ambrose Foss, John
Crouch, William Crouch, and the brothers Isaac and John Godden.
...
The other family, the Fosses, remained on their Richmond land until the
mid-1850s when their stock-numbers dictated a larger acreage, and a move
to a farm near Edendale was made. From there they went to New England,
outside Maritzburg. It seems that Foss prospered, and in about 1886, by
then twice-widowed, he returned permanently to England. He remarried there
and died in 1895 at Stanford le Hope, Essex.
Wagon Maker (1866); Farmer (1895)
19 October 1895, at Loop Street,
Pietermaritzburg, Natal
The cause of death is listed as heart disease.
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Gravestone of Richard Foss in Commercial
Road cemetery, Pietermaritzburg, Natal
photo by John Deare at eGGSA
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Commercial Road cemetery,
Pietermaritzburg, Natal, South Africa
The headstone reads:
In Loving Remembrance of
RICHARD FOSS
of New England, Natal,
who fell asleep in Jesus
October 19th 1895
Aged 55 years and 11 months
"Home at last, they labour done, safe
and blest, the victory won
Jordan passed, from pain set free, angels now have welcomed thee"
dated 5 April 1884
Pietermaritzburg
Estate Files 1895 #295 DGS 004049921 images 396-401
This is the Last Will and Testament, of me
Richard Foss, of New England, near Pietermaritzburg, in the Colony of
Natal, Farmer, who being in health of body, and of sound and disposing
mind, memory and understanding, and capable of performing any act
requiring thought, judgment or reflection, declare to make and execute
this my Last Will, and Testament in manner following.
I hereby revoke, cancel, annul and make void, all Wills, Codicils,
or other testamentary acts, heretofore made or executed by me, and more
particularly a certain Last Will and Testament, dated twenty fourth
November, Eighteen hundred, and seventy nine.
I declare to nominate, constitute and appoint, my brothers, John
Foss, of Verulam, and George Foss, of Pietermaritzburg, jointly to be the
Executors, and Trustees of this my Will, Administrators of my Estate and
effects. And I nominate, constitute, and appoint the said John Foss, and
George Foss, together with my wife Emily Foss, (born Ford) should she
survive me, and so long as she shall remain my widow, jointly to be
Guardians, of my minor children: should any vacancy occur, in the said
Offices of Executors, Trustees, or Guardians either by death, incapacity,
resignation, or absence from the Colony, for a period of twelve months,
which shall be deemed to create a vacancy, I direct that the same shall be
filled up at a Meeting of my next of Kin and Creditors, called as by Law
required. I hereby give and grant unto my said Trustees, Executors, and
Guardians, all such power and authority as to these Offices in Law belong,
those of assumption, substitution and surrogation being however excepted.
And the person or persons from time to time appointed in the place of the
Executor or Executors dying becoming incapable, resigning, or being absent
from the Colony, for thr aforesaid period, shall also be Trustees of this
my Will.
I give, devise, and bequeath to my dear wife Emily Foss, to whom I
was married under Antenuptial Contract, all the furniture, and other
household effects, of which I may die possessed, for her own use and
benefit absolutely, but should she predecease me, the same shall be
disposed of in the same way, as the residue of my Estate, hereinafter
mentioned.
I hereby declare, to give, devise, and bequeath the remainder of my
property, estate and effects, of which I may die possessed, whether
movable or immovable personal or real, corporeal or incorporeal,
wheresoever situated and whether the same being in possession, reversion,
remainder, or expectancy, unto the said John Foss, and George Foss,
hereinafter called my Trustees or other the Trustees of this Will, for the
ends, uses, intents, and purposes aftermentioned that is to say.
Upon trust, that they shall as soon as conveniently may be after my
death, pay all my just and lawful debts, funeral and testamentary
expenses. And I authorise and empower my said Trustees to sell so much of
my said estate, as may be necessary to pay the said debts, and to hold and
retain the sum of Two thousand pounds, Sterling, the same to be obtained
within a reasonable time after my decease by calling in any sum or sums
that may be due or owing to me under Mortgage, or by the sale of so much
of the remainder of my property, as they may think advisable. Upon trust,
to invest the moneys so to be received, or called in, upon good and
sufficient security of landed property, with power to my said Trustees, to
vary such investments, from time to time, and to act with reference
thereto as they may deem fit: Upon trust to pay the Annual rents,
interests, and other income, derivable therefrom, to my said Wife, Emily
Foss, during the term of her natural life, the same to be payable at such
times in each year, and in such manner as my said Trustees, may consider
most advisable.
And I also further direct my said Trustees, to hold and retain the
sum of Five hundred pounds, Stg, the same to be obtained and invested in
the same manner as the before mentioned sum of Two Thousand pounds. Upon
trust, to pay and apply the annual interests, and other income derivable
therefrom to and for the maintenance, education, and benefit of my son,
Cecil Christian Foss, during his minority, and on his obtaining the age of
twenty one years complete, to pay to him the said sum of Five hundred
pounds, or to transfer, convey, and make over to him, the security or
securities, representing the said sum, for his own use and benefit
absolutely. Declaring, however, that this special provision to my said son
Cecil Christian Foss, is made in consequence of his bodily infirmity, he
suffering at the date hereof from rupture:- and should he recover from the
said infirmity, before he attains the age of twenty one years, then and in
that case the said bequest of Five hundred pounds, shall lapse and the
said sum shall revert to and become a portion of my residuary estate, and
be divided equally, among my said children including the said Cecil
Christian Foss, together with my said residuary estate, of which it shall
then form a part. And on the death of my said Wife, the said sum of Two
thousand pounds, shall also form part of the reminder of my said estate,
and shall be dealt with as hereinafter mentioned.
All the remainder of my property, estate and effects, as aforesaid,
I hereby, give devise, and bequeath to, and among the children of my said
marriage , including the said Cecil Christian Foss, equally, share and
share alike: the lawful issue of deceased children succeeding by right or
representation, to the share or portion which would have devolved upon
such children had they survived: Declaring that during the minority of my
children the rents, interests, and profits, of my said residuary estate,
so to be held in trust exclusive of the said sums of Two thousand pounds
and Five hundred pounds, during the life of my said wife, and the
existence of my said son Cecil Christian Foss's infirmity respectively
(for the application of which special provision is herein before made)
shall be used and applied by the Guardians of my said children for the
maintenance, education and benefit of them, or so many of them, including
the said Cecil Christian Foss, as may be minors, in such shares and
proportion, and in such manner, as the said Guardians shall think proper,
and as each child attains the age of twenty one years, or married, I
direct my said Trustees to pay and convey to such child his, or her,
portion of my said means and estate. Declaring that any portions of my
said Estate falling to females, shall be held by my said Trustees, in
trust, and the income and profit thereof, paid to them from time to time.
Also declaring that such female children shall have the full power of
disposing of their shares or portions falling to them, by Last Will, and
Testament, but should such females, die without leaving any Will or
Testament, the same shall be divided among the children, issue of such
females, and failing such issue, and without making any such testamentary
disposition, the shares or portions of such females, so dying shall be
divided equally among all my children, share and share alike, issue of
deceased children succeeding by right of representation.
And lastly, I direct my said Trustees, within a few weeks, after my
decease, to lodge with the Master of the Supreme Court of this Colony as
Inventory of the whole of my estate and effects.
And I hereby reserve to myself the right from time to time, and at
all times hereafter, to make all such alterations in, or additions to this
my Will, as I shall think fit, either by a separate act, or at the foot
hereof, desiring that all such alterations so made, may be as valid and
effectual as if inserted herein.
All which I declare to be my Last Will and Testament, desiring that
it may have effect as such, or as a Codicil, or otherwise as may consist
with Law.
In witness whereof, I have hereunto set my hand, at
Pietermaritzburg, in the presence of the subscribing Witnesses, this fifth
day of April in the Year of Our Lord, One thousand, eight hundred and
eighty four.
(sd) R. Foss
Signed by the Testator, the said Richard Foss, in the presence of us being
then present both together, who in the presence of the Testator, and of
each other, have affixed our signatures hereto as Witnesses.
(sd) Henry Bale Solicitor
(sd) H. Anderson Attorney
George Foss did not accept his appointment as Executor and Guardian
under this will, and he was replaced by Arthur Edward Foss (his eldest
brother) in these offices (Pietermaritzburg
Estate Files 1895 #295 DGS 004049921 images 402-3).
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.]
1841:
Beaulieu Rails, Boldre, Hampshire
1884: New England, Pietermaritzburg, Natal (Pietermaritzburg
Estate Files 1895 #295 DGS 004049921 image 396)
1895: New England, Pietermaritzburg, Natal (photograph
of headstone)
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