The Foss Family

Adeline Dorothy (Foss) Kirby

Birth: 1907/8, in South Africa

Father: Arthur Edward Foss

Mother: Emma Agnes Mildred (Balcomb) Foss

Married: 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.

Sources:

Arthur Edward Foss

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

Father: Richard Foss

Mother: Emily (Ford) Foss

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).
Grave of Emily (Bosomworth) Foss
Grave of Emily (Bosomworth) Foss in Stanger cemetery, Natal
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.

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, and the sister of Esther Wenham Balcomb who married Arthur's younger brother, George, in 1914. She died in 1957.

Children: Occupation: 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.

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.

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.

Death: 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.

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

Sources:

Arthur Mervyn Foss

Birth: 1914/5, in Natal

Father: Arthur Edward Foss

Mother: Emma Agnes Mildred (Balcomb) Foss

Education: 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.


Margaret Doidge
Margaret Doidge
photo from Ian Doidge at WikiTree
Married: 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.

Occupation: 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.

Notes: 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.

Sources:

Cecil Christian Foss

Birth: 8 August 1882, in Pietermaritzburg, Natal

Father: Richard Foss

Mother: Emily (Ford) Foss

Married: 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.

Occupation: Bookkeeper

Notes: 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.

Death: 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.

Burial: Benoni cemetery, Benoni, Transvaal, South Africa

Will: 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.
 
Addresses:
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)

Sources:

Esther Agnes (Foss) Jennings

Birth: 1904/5, in Natal

Father: Arthur Edward Foss

Mother: Emma Agnes Mildred (Balcomb) Foss

Married: 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.

Occupation: Conveyancing Clerk

Sources:

Eva Mary (Foss) Allsopp

Birth: 28 November 1869

Father: Richard Foss

Mother: Emily (Ford) Foss

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 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)

Children: Death: 3 February 1958

Gravestone of Ernest Selby Allsopp and Eva Mary (Foss) Allsopp
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
Buried: 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

Sources:

George Prince Foss

Birth: 19 June 1871, in Pietermaritzburg, Natal

Father: Richard Foss

Mother: Emily (Ford) Foss

Married: 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.

Foss & Shaw
Foss & Shaw in Pietermaritzburg
photo from Alf Boyley
Occupation: Hardware Merchant
George was the founder of the firm Foss & Shaw in Pietermaritzburg.

Death: 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.

Burial: Mountain Rise cemetery, Pietermaritzburg, Natal, South Africa

Addresses:
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)

Sources:

Herbert Charles Foss

Herbert Charles Foss
Herbert Charles Foss
Birth: 25 March 1868, in Pietermaritzburg, Natal

Father: Richard Foss

Mother: Emily (Ford) Foss

Married: 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.

Children: Occupation: Contractor, businessman, town councillor, garage proprietor

Notes:
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.
Herbert Charles Foss
Herbert Charles Foss
(A Prominent Country Cyclist)
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.

Death: 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.

Will: 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 marati 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.

Headstone of Herbert Charles Foss
Gravestone of Herbert Charles Foss in Main cemetery, Ladysmith, Natal
photo by Chris and Petra Lombard at eGGSA
Buried: Main cemetery, Ladysmith, Natal, South Africa
The gravestone reads:
In Loving Memory of
HERBERT CHARLES FOSS

Died 16th Sept. 1945

Addresses:
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)

Sources:

Jessie Elizabeth (Foss) Fowle

Birth: 22 September 1872, in Natal

Father: Richard Foss

Mother: Emily (Ford) Foss

Married: 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.

Children: Death: 3 April 1961

Addresses:
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)

Sources:

Myrtle Emily Foss

Birth: 19 December 1887

Father: Richard Foss

Mother: Emily (Ford) Foss

Notes:
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).

Addresses:
1973: 265 Prince Alfred Street, Pietermaritzburg, Natal   (Pietermaritzburg Estate Files 1922 #7724 DGS 007866843 image 1144)

Sources:

Richard Foss

Birth: 28/29 October 1839, in New Forest, Hampshire, England

Baptism: 1 March 1840 in Saint Mary, Portsea, Hampshire, England

Father: Ambrose Foss

Mother: Mary (_____) Foss

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.

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

Children:
Emigrants on the Lady Bruce 1850
Emigrants on the Lady Bruce (1850)
illustration from the Illustrated London News reprinted at Mole's Genealogy Blog 29 March 2014
Notes: 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.

Occupation:
Wagon Maker (1866); Farmer (1895)

Death: 19 October 1895, at Loop Street, Pietermaritzburg, Natal
The cause of death is listed as heart disease.

Gravestone of Richard Foss
Gravestone of Richard Foss in Commercial Road cemetery, Pietermaritzburg, Natal
photo by John Deare at eGGSA
Buried: 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"


Will: 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.] 
Census and Addresses:
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)

Sources:
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