to substantiate these allegations. The registrar held that Percy had faile
to make out his case and gave judgment for the widow. The Court
o
Appeal held this approach to be fundamentally misconceived.
"On its being proved that Percy Stone had advanced a certain par
of
the purchase money, the presumption
of
law arose that he wa
beneficially entitled to a corresponding share in the yacht.
It
was fo
the plaintiff to displace that presumption by bringing evidence to th
contrary; but she has entirely failed to bring any such evidence. Th
Court must therefore give effect to the presumption, and must hol
that,
as
the defendant paid a part
of
the purchase money, he acquire
an interest in the yacht
....
"
32
30
So, e.g. Bridge describes them
as
"presumptive rules
of
intention":
M.
Bridge,
The
Sale
of
Good
(1997), p.62.
3!
(1908]
P.
218; (1907)
77
L.J.P. 105.
32
(1907) 77 L.J.P.
105
at
108
(Farwell L.J., giving the judgment
of
the court). The correspondin
passage in [ 1908]
P.
218 at 230, is essentially the same, though the phrase "presumption
of
law"
rendered only
as
"presumption".
(2008) 124 L.Q.R.,
JANUARY©
SWEET
&
MAXWELL
AND CONTRIBUTORS
78
Law Quarterly Review
[Vol. 124
The same view
of
the operation
of
the presumption is found in Mellish
L.J.' s judgment in
F owkes v Pascoe,
33
where the presumption is described
as
a "rule
of
law" which "must prevail" even though "the court might not
believe that the fact was in accordance with the presumption".
34
(ii) Presumption rebutted by contrary evidence
Decisions in which contrary evidence has been effective to rebut the
presumption are legion. Thus, in
Dyer v Dyer,
Eyre C.B. said: "it is the
established doctrine
of
a court
of
equity that this resulting trust may be
rebutted by circumstances in evidence."
35
An example is
Fawkes v Pascoe
itself.
36
The facts proved by evidence were that the testatrix had an only
child, a son. He predeceased her, leaving a widow, who remained living
with the testatrix and who remarried from her house. The widow's son
and daughter from her second marriage were treated by the testatrix as her
own flesh and blood. During her lifetime, the testatrix bought a number
of
annuities in the joint names
of
herself and her surrogate grandson, by
this time a young man, which annuities at the time
of
her death were
valued at some £7,000. As the successor
of
joint tenants, the issue was
whether the surrogate grandson held them outright or on resulting trust
for the testatrix's estate. At first instance, Sir George Jessel M.R. held
that a presumed resulting trust arose in favour
of
the testatrix's estate,
which trust had not been rebutted.
37
His decision was reversed on appeal,
Mellish L.J. saying:
"
...
if
there is evidence to rebut the presumption, then
...
the Court
must go into the actual facts. And
if
we are to go into the actual facts,
and look at the circumstances
of
this investment, it appears to me
utterly impossible
...
to come to any other conclusion than that the
. . . investment was made for the purpose
of
gift and not for the
purpose
of
trust.
