pg 156
Appeal Court, 10th Nov., 1941.
Case Stated by Supreme Court.
Administration of
Estate-Application for
revocation of Letters granted to
Administrator-General-issue of
marriage contracted in
accordance with the Marriage
Ordinance during intestate.
A who was the i888ue of a
marriage contracted in
accordance with the Marriage
Ordinance died intestate and was
survived by other issue of that
marriage and also by a widow and
issue of a customary marriage
contracted by himself.
The trial Judge stated a case
raising the point whether his
personal property and any real
property of which he might have
disposed by will descends to the
other issue of the former
marriage under the Ordinance or
to the widow and issue of the
marriage of the intestate and
which of them is entitled to a
grant of Letters of
Administration.
Held: That under section 36 of
the Ordinance in the case of
succession to the property of
the intestate it shall be
distributed in accordance with
the~ provisions of ' the Law of
England at the time of the
Ordinance relating to the
distribution of the personal
estate of intestate any law or
custom to the contrary
notwithstanding .
. Agus to for Applicant.
Unsworth
for Administrator-General.
The following joint judgment was
delivered:-
BAKER., BROOKE, AND JEFFREYS, JJ.
CASE STATED.
This is a case stated
by the Acting Chief Justice
under section 6 of Ordinance No.
47 of 1933 reserving for the
opinion of this Court, at the
request of the
Administrator-General in view of
the importance and widespread
application of the, principle,
the question whether he came to
a correct decision in finding in
favour of the surviving issue of
the deceased's parent's marriage
under the Marriage Ordinance,
Chapter 68 (of whom the
applicant is one) on an
application for the revocation
of letters of administration
granted to the
Administrator-General and the
issue of a fresh grant to her.
pg 161
The point raised is:-
When a person who is the issue
of a marriage' contracted in
accordance with the Marriage
Ordinance dies intestate and is
survived by other issue of that
marriage and also by a widow and
issue by a marriage contracted
by himself otherwise than in
accordance with the Marriage
Ordinance, does his personal
property and any real property
of which he might have disposed
by will descend to the former or
to the latter and as a corollary
which of them is entitled to a
grant of letters of
administration? The actual
marriage is a customary one. The
relevant section of the
Ordinance is section 36 which
applies only to the Colony. Mr
Unsworth on behalf of the
Administrator-General in an
ingenious argument emphasised
the words
shall be distributed"
and maintained that the
one-third given to the widow
under the English law of
distribution should include a
widow or widows of a customary
marriage as in the
interpretation of Statutes the
singular includes the plural:
any other decision would, he
claims, have the effect of
invalidating a marriage
contracted under native law the
validity of which- is saved in
section 35 of the Ordinance, and
also of bastardizing the issue.
We are concerned with the issue
of a marriage under the
Ordinance and the section 36
lays it down very clearly that
in the case of succession to the
property of an intestate it
shall be distributed in
accordance with the provisions
of the law of England (at the
time of the Ordinance) relating
to the distribution of the
personal estate of intestates
any native law or custom to the
contrary notwithstanding.
The provisions of the earlier
Ordinance of
1884 section 41 are in the same
terms and were enacted at a time
when the Court in England did
not profess to decide upon the
rights of succession which it
might be proper to accord to the
issue of a polygamous union. The
intention of section 36 of the
present Ordinance is
sufficiently clear and it has
been expressed in terms that·
leave no doubt that " any native
law or custom to the contrary
notwith8tanding " the property
shall be distributed in
accordance with the provisions
of the law of England which
contemplate a monogamous
marriage. In the saving of
customary marriage in section 35
it is provided that nothing in
the Ordinance shall in any
manner apply to marriages so
contracted. The answer to the
question reserved is therefore
that the trial .Judge was
correct in holding that a person
whose right depends on native
law and custom and not on
English law is excluded from the
succession on the death
intestate of a person who is the
issue of a marriage under the
Ordinance.
