COUNSEL: Henry Salt Q.C. and A. J. Belsham for the appellant.
Lionel Edwards Q.C., H. Bruce Campbell and F. R. A. Williams for the respondents

SOLICITORS: Rexworthy, Bonser & Wadkin; Hatchett Jones & Co.

JUDGES: Lord Morton of Henryton, Lord Cohen, and Lord Keith of Avonholm.

DATES: 1954 July 14, 15; Oct. 12.

On Appeal From the West African Court of Appeal.

West Africa (Nigeria) — Succession — Intestacy — Child of marriage under Marriage Ordinance, 1884 — Polygamous marriages — In accordance with native law and custom — Right of issue to succeed on intestacy — Applicability of law of England — Marriage Ordinance, No. 14 of 1884 (Lagos), s. 41 — Statute of Distributions, 1670 (22 & 23 Car. 2, c. 10).

Conflict of Laws — Succession — Legitimacy — Domicile of parents at birth of child — Polygamous marriage.

[*108] The deceased, the child of a marriage contracted under the Marriage Ordinance, 1884, of the Colony of Lagos, which provided in section 41 that the disposable estate of such a person dying intestate should be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestates, any native law or custom to the contrary notwithstanding, died domiciled in Nigeria and intestate. He was said to have entered into nine polygamous marriages in Nigeria in accordance with native law and custom, and no question of his capacity to do so by his local law arose. As between the appellant, who claimed as lawful nephew of the deceased to succeed to the whole estate, and the respondents, who claimed as legitimate children of the deceased born in Nigeria of the polygamous; marriages to exclude him:—

Held, that, subject to the respondents establishing their status of legitimacy under the law of their domicile, they came within the class of persons entitled to succeed under the English Statute of Distributions, which was the relevant law of England in 1884. As a matter of construction and on the authorities that statute could not be limited in its local application to children who were the issue of monogamous unions, and the effect of its application to the cases to which it applied was to fix the order of succession according to a table different from that prevailing under native law and custom.

The principle of In re Goodman’s Trusts (1881) 17 Ch.D. 266 — that if a child is legitimate by the law of the country where at the time of its birth its parents were domiciled, the English law of succession to personalty recognizes that status — is applicable to children of polygamous unions.

In re the Estate of Herbert Samuel Heelas Macaulay, decd. (1951) Cyclostyled Reports, Nov. 23, 1951, which was followed by the West African Court of Appeal in the present case, and which overruled In re the Estate of Frederick Akindele Somefun (1941) 7 W. A. C. A. 156, approved.

Judgment of the West African Court of Appeal affirmed.

APPEAL (No. 19 of 1953) from a judgment of the West African Court of Appeal (June 2, 1952), in a matter relating to the distribution of the estate of John St. Matthew Daniel (hereafter referred to as the deceased), who died at Lagos on April 25, 1948, intestate. The Administrator-General of Nigeria was appointed administrator of the estate by order of the Supreme Court of Nigeria made on February 1, 1949.

The following facts are taken from the judgment of the Judicial Committee: The history of the matter was as follows. The deceased was the son, born posthumously, of Matthew Joaquim Daniel and Theresa Maria, who were married in a Wesleyan Methodist church in Lagos on September 28, 1890. [*109]

That was a marriage under the Marriage Ordinance, 1884, of the Colony of Lagos, which applied to any person subject to native law and custom who contracted a marriage in accordance with the provisions of the Ordinance. The deceased was the only child born of the marriage. The deceased’s parents had mother son, Pedro, who was born, out of wedlock, in 1884. Pedro appeared to have entered into a Christian form of marriage at Lagos in 1909. It was claimed by the appellant that Pedro became legitimated in 1929 by virtue of the Legitimacy Ordinance of Nigeria of 1929, which introduced the principle of legitimation per subsequens matrimonium and applied it to marriages contracted both before and after the date of the Ordinance. Pedro died in 1936. The appellant claimed to be the only child of Pedro’s marriage. The deceased was said to have entered into nine polygamous marriages in accordance with native law and custom, and the respondents (other than the Administrator-General) claimed, as issue of those polygamous marriages, to be legitimate children of the deceased under Nigerian law. It would appear, and was assumed at the hearing, that all the persons mentioned were at all material times domiciled in Nigeria. The contest in this appeal lay between the appellant who claimed as lawful nephew of the deceased to succeed to the whole of the estate, and respondents who claimed, as children of the deceased procreated by polygamous marriages, to exclude him.

In the Supreme Court of Nigeria at Lagos, Robinson J., on May 17, 1951, made orders for distribution of the estate among the deceased’s children. On appeal by the present appellant the West African Court of Appeal (Sutton P., de Comarmond Ag.C.J. (Nigeria) and Coussey J.A.) on June 2, 1952, allowed the appeal on the ground that there was insufficient evidence before the trial judge to justify his assumption that the 12 children concerned were issue of marriages with the deceased and remitted the respondents’ motions for distribution of the estate to the court below for hearing de novo. The Court of Appeal further directed that the court below should require the respondents to adduce evidence sufficient to satisfy it on the following matters: (1) Whether the mothers of the 12 respondents were married to the intestate John St. Matthew Daniel, in accordance with the native law and custom applicable in each case. (2) Whether the respondents, or any of them, were the issue of such marriages; and if so, of which such marriages; and (3) whether by the native law and custom applicable in each case the respondents, or any of them, had the status of legitimate children.

[*110] The appellant was allowed to be joined as opposer to the respondents’ motions.

In so doing it was clear from the judgment of the Court, of Appeal that they rejected a claim by the appellant to oust the respondents from any share in the estate even if they were legitimate issue of polygamous marriages by the deceased. The appellant accordingly applied for leave to appeal against the judgment of the Court of Appeal to Her Majesty in Council, which leave was granted by the Court of Appeal on October 6, 1952.

The Lagos Marriage Ordinance, No. 14 of 1884 (Laws of the Colony of Lagos, 1901 ed., vol. 1), provides:—

S. 2: “This Ordinance shall extend to the whole of the Colony and the Protected Territories.”

S. 37: “Any person who is married under this Ordinance, or whose marriage before the commencement of this Ordinance is declared by this Ordinance to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native law or custom, but save as aforesaid, nothing in this Ordinance contained shall affect the validity of any marriage contracted under or in accordance with any native law or custom, or in any manner apply to marriages so contracted.”

S. 41: “Where any person who is subject to native law or custom contracts a marriage in accordance with the provisions of this or of any other Ordinance relating to marriage, or has contracted a marriage prior to the passing of this Ordinance, which marriage is validated hereby and such person dies intestate, subsequently to the commencement of this Ordinance, leaving a widow or husband or any issue of such marriage; and also where any person who is issue of any such marriage as aforesaid dies intestate subsequently to the commencement of this Ordinance, the personal property of such intestate and also any real property of which the said intestate might have disposed by will shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestates, any native law or custom to the contrary notwithstanding. Provided always, that where by the law of England, any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown such portion shall be distributed in accordance with the provisions of native law and custom and shall not become a portion of the said casual hereditary revenues. Provided also that real property, the succession to which cannot by native [*111] law or custom be affected by testamentary disposition shall descend in accordance with the provisions of such native law or custom anything herein to the contrary notwithstanding. Before the Registrar of Marriages issues his certificate in the case of an intended marriage, either party to which is a person subject to native law or custom, he shall explain to both parties the effect of these provisions as to the succession to property as affected by marriage.”

Interpretation Ordinance, 1930 (Laws of Nigeria, 1948 Rev., c. 94), s. 37: “(b) words in the singular shall include the plural, and in the plural shall include the singular.”

1954. July 14, 15. Henry Salt Q.C. and A. J. Belsham for the appellant. The intestate falls within the second limb of section 41 of the Marriage Ordinance of 1884 — as issue of a marriage under that Ordinance who died intestate — and on the facts it is now common ground that the re-enacted Nigerian Marriage Ordinance of 1914 and the Nigerian Interpretation Ordinance, 1939 (transposing singular and plural) have no application. The law of the intestate’s domicile has by the Ordinance of 1884 imported by reference “the provisions of the law of England relating to the distribution of the personal estates of intestates, any native law or custom to the contrary notwithstanding,” in cases of deaths intestate of persons who marry under the Ordinance and of the issue of such a monogamous marriage. That law consisted in 1884 of the Statute of Distributions, 1670 (22 & 23 Car. 2, c. 10) and the Act of 1685 (1 Jac. 2, c. 17), and the Statute of Frauds, 1677 (29 Car. 2, c. 3), which provided one-third for the wife and two-thirds for the children, and subject thereto for brothers and sisters or their issue. It is significant that Lord Brougham’s Act (13 & 14 Vict. c. 21), the first precursor of the Interpretation Act, 1889 (52 & 53 Vict. c. 63), applied only to enactments after 1850, and therefore “wife” cannot or should not be read “wives” in the Statute of Distributions. It would be contrary to common law and to the canons of construction in those circumstances to read “wife” as “wives.”

The West African Court of Appeal side-stepped the difficulty of the wives by stating that they had not formally claimed. But the Administrator-General is bound to take notice of rights of which he has notice and it was wrong to ignore them. Their existence has great relevance to the construction of the Marriage [*112] Ordinance of 1884 incorporating the English Statute of Distributions, because there can be no certainty in working out its application when more than one “wife” survives. Should the distribution be by families, each wife taking a third of a family share and the children by her (if any) two-thirds? Or should the wives take a third of the estate between them, and if so, as joint tenants or tenants in common, and all the children two-thirds of the estate equally per capita? The latter adaptation of the English Statute of Distributions to a polygamous intestate’s estate was adopted without any authority or justification in the Straits Settlements, but the Privy Council carefully left the point open and decided only the issue of what marriage formalities were required in regard to primary and secondary marriages in the Straits Settlements: see Cheang Thye Phin v. Tan Ah Loy¹ and Khoo Hooi Leong v. Khoo Hean Kwee.² It required a statute to regularize this practice of the Straits Settlements courts: Distribution Enactment, 1930, Laws of Federated Malay States, 1935 ed., c. 71. In the present case there is no Nigerian statute resolving the doubt. And in truth the Ordinance of 1884 cannot be applied at all to the case of an intestate leaving more than one widow.

The Marriage Ordinance of 1884 on its true construction shows an underlying intention that once there has been a monogamous marriage, any child (or remoter issue) thereof who lapses into polygamy, though he may lawfully do so, runs the risk that if he elects not to make a will his collaterals and not the wives and issue of his polygamous unions will succeed to his property by virtue of the Ordinance. Even before the Ordinance was passed the courts of Nigeria attached to monogamous and Christian marriages a sanctity not accorded to polygamous unions by native law and custom.

The same law of the domicile — the Legitimacy Ordinance, 1929, Laws of Nigeria, 1948 ed., vol. 4, c. 3 — legitimated the appellant’s father as from 1929, though not in time to enable him to participate with his brother, the intestate, in their father’s estate on its distribution in 1890. The appellant is the collateral of the intestate now entitled to the intestate’s estate under the Ordinance of 1884 to the exclusion of the polygamous wives and issue of the intestate. [Knowles v. Attorney-General³ was referred to.]

¹ [1920] A.C. 369, 373.

² [1926] A.C. 529.

³ [1951] P. 54; 66 T.L.R. (Pt. 1) 1188.

[*113] There has been conflict in the West African Court of Appeal decisions in this connexion. In re the Estate of Somefun,⁴ a case indistinguishable from the present one, decided in favour of collaterals to the exclusion of wives and issue of polygamous unions. In re the Estate of Macaulay,⁵ a similarly indistinguishable case, decided the converse, setting aside one-third of the estate to satisfy widows. It was there held that Somefun’s case⁶ had been decided per incuriam. In the present case the court followed its decision in Macaulay’s case,⁷ but ignored widows. It is submitted that Somefun’s case⁸ was right, and that Macaulay’s case⁹ and the present decision were wrong. In the latter the West African Court of Appeal purported to follow In re Goodman’s Trusts,¹⁰ but that case and In re Bischoffsheim¹¹ are distinguishable. Status is a bundle of incidents. One or more of the incidents may be lacking although the label of the status in question remains. Here the court was concerned with the incident of qualification to participate in the distribution of an estate. And for the purposes of the Nigerian Marriage Ordinance the intestate’s widows and issue of his polygamous unions lack that qualification, irrespective of whether during his lifetime they properly bore the labels of lawful wife and lawful issue according to native law and custom. From In re Goodman’s Trusts¹² and In re Bischoffsheim¹³ it is a long step to treat this intestate’s widows and issue as qualified to participate under the Ordinance of 1884. It is begging the question to say in general terms that by the general law of Nigeria they are lawful wives and lawful issue.

Notwithstanding the South African case of Seedat’s Executors v. The Master (Natal),¹⁴ the qualification to participate of the respondent children must stand or fall with that of the widows, and it is submitted this must fall. The Sinha Peerage case¹⁵ is distinguishable: it concerned a dignity and turned on the particular fact that the first Lord Sinha’s marriage, though potentially polygamous, was in fact and on every reasonable prospect monogamous. Legislation is pending in India which will discourage polygamy. But the appellant’s case here is not rested on public

⁴ (1941) 7 W.A.C.A. 156.

⁵ (1951) Cyclostyled Reps., Nov. 23, 1951.

⁶ 7 W.A.C.A. 156.

⁷ Cyclostyled Reps., Nov. 23, 1951.

⁸ 7 W.A.C.A. 156.

⁹ Cyclostyled Reps., Nov. 23, 1951.

¹⁰ (1881) 17 Ch.D. 266.

¹¹ [1948] Ch. 79; 64 T.L.R. 36; [1947] 2 All E.R. 830.

¹² 17 Ch.D. 266.

¹³ [1948] Ch. 79.

¹⁴ [1917] S.A.L.R.(A.D.) 302, 310.

¹⁵ [1946] 1 All E.R. 348.

[*114] policy; it turns on the construction of the Nigerian Ordinance of 1884, which imports into the law of Nigerian domicile English statutory law of distribution where there has been a monogamous marriage. The imported law is unworkable if applied to polygamous unions. [Reference was also made to Warrender v. Warrender,¹⁶ Hyde v. Hyde,¹⁷ In re Bethell¹⁸ and In re Don’s Estate.¹⁹

A. J. Belsham following. Legitimacy may have a wider or a narrower meaning. In Nigeria there are two classes of legitimate children, issue respectively of monogamous and polygamous marriage. In section 41 of the Ordinance of 1884 the former and narrower meaning is intended throughout. Certain Nigerian cases, beginning with Cole v. Cole,20 show special consideration for the issue of monogamous and Christian marriages. The same tendency appears in certain other Nigerian Ordinances, such as the Supreme Court Ordinance of 1876, section 19. [Reference was also made to Adegbola v. Folaranmi and Others,21 Haastrup v. Coker²² and Coker v. Coker.²³]

Lionel Edwards Q.C., H. Bruce Campbell and F. R. A. Williams for the respondents were not called upon to argue, but submitted that, if the appeal were dismissed, in the circumstances costs should be paid by the appellant.

Henry Salt Q.C. said that costs were in the discretion of the Board, and submitted that in this case which, after all, was one of settling the law, costs should come out of the estate.

July 15. LORD MORTON OF HENRYTON announced that their Lordships would humbly advise Her Majesty that the appeal should be dismissed and that they would give their reasons later.

October 12. Their Lordships’ reasons for dismissing the appeal were delivered by LORD KEITH OF AVONHOLM, who stated the facts set out above and continued: The question at issue arises under the Marriage Ordinance of the Colony of Lagos of 1884. In the West African Court of Appeal it was assumed that the succession was governed by the Marriage Ordinance of Nigeria of 1914. It is now agreed between the parties that it is the Ordinance of 1884 that falls to be considered, and it appears to their Lordships that

¹⁶ (1835) 2 Cl. & F. 488.

¹⁷ (1866) L.R. 1 P. & D. 130.

¹⁸ (1888) 38 Ch.D. 220; 4 T.L.R. 319.

¹⁹ (1857) 4 Drew. 194.

²⁰ (1898) 1 Nig.L.R. 15.

²¹ (1921) 3 Nig.L.R. 81.

²² (1927) 8 Nig.L.R. 68.

²³ (1943) 17 Nig.L.R. 55.

[*115] this must be so as the marriage of the deceased’s parents was contracted under that Ordinance. There is no material difference in the language of the two Ordinances on any point affecting this appeal. It was at one time indicated by an amendment made by the respondents to their pleadings, and allowed by their Lordships, that the respondents intended to argue, as an alternative to their main submission, that the relevant section of the Marriage Ordinance did not apply to the deceased. In the end counsel for the respondents did not see his way to submit any argument in support of this amendment. Their Lordships accordingly proceed on the view which has been accepted throughout this case, that the succession to the deceased’s estate turns upon an interpretation of the relevant provisions of the Marriage Ordinance, 1884.

Section 41 of the Marriage Ordinance of 1884 is as follows: [His Lordship read the section and continued:] From what has been said at the outset of this judgment it follows that the deceased falls within the second category of intestate, being a person who was the child of a marriage contracted under the Ordinance. The short question is, what is the effect of the direction that his disposable estate shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestates, any native law or custom to the contrary notwithstanding?

The relevant law of England in 1884 is to be found in the Statute of Distributions, 1670 (22 & 23 Car. 2, c. 10) and the Act of 1685 (1 Jac. 2, c. 17). For purposes of this appeal their Lordships are concerned only with the direction in the Statute of Distributions dealing with the succession of children of an intestate. The appellant’s contention is that this law precludes the succession on intestacy of children or others who cannot claim kinship with the deceased through monogamous marriage; that the respondent claimants being the offspring of polygamous marriages fall to be regarded as illegitimate under the English Statute of Distributions, and that he, the appellant, being the only person who can claim kinship with the deceased through monogamous marriage, is entitled to the whole estate. This ignores one factor, that the appellant’s father, the brother of the deceased, was the issue of an illicit union and was only legitimated in 1929 by a statute of the Nigerian Colony, so that the appellant would have to rely on the law of his father’s domicile for the purpose of bringing himself within the class of legitimate heirs. This point was not, however, adumbrated in the courts below, and owing to the course which the hearing took before their [*116] Lordships was not developed in argument before their Lordships’ Board. On the view on which this judgment proceeds their Lordships have found it unnecessary to deal with this point, to which special considerations may apply. Accordingly, they do not refer further to this matter.

The contention for the respondent children is that by the law of their domicile of origin they are legitimate children of the deceased and accordingly come within the class of persons entitled to succeed under the English Statute of Distributions. This view has been upheld by the West African Court of Appeal, subject to the respondents establishing their status of legitimacy.

This question has been the matter of some conflict of decision in the Nigerian courts. It was very fully and clearly considered in In re the Estate of Herbert Samuel Heelas Macaulay, decd.,¹ by the West African Court of Appeal in a judgment delivered on November 23, 1951, by Sir John Verity C.J., and concurred in by the two other members of the court, which decided in favour of children of polygamous unions. In the present case Sir Stafford Foster Sutton, President of the Court of Appeal, who delivered the judgment of the court, followed this decision, adding that he found himself “in entire agreement with that portion of the Chief Justice’s judgment which touches the issue with which we are concerned on this appeal.” These judgments overruled a previous decision in a contrary sense in In re the Estate of Frederick Akindele Somefun.²

Reference was also made by counsel for the appellant to a number of decisions in the Nigerian courts, commencing with Cole v. Cole,³ where, in the case of marriages contracted under the rites of a Christian church, to which for one reason or another the provisions of a marriage Ordinance did not apply, the courts held that the parties must be taken to have intended their succession on intestacy to be regulated by English law, not by native law and custom. Their Lordships have carefully considered these cases, but cannot extract from them any principle that would affect the present case. They find it unnecessary to decide whether the courts were right in applying the English law of succession or whether if English law was applicable it was rightly applied in the circumstances of the particular cases.

Their Lordships would observe that no question can arise as to the capacity of the deceased to enter into polygamous marriage

¹ (1951) Cyclostyled Reps., Nov. 23, 1951.

² (1941) 7 W.A.C.A. 156.

³ (1898) 1 Nig.L.R. 15.

[*117] by his local law. He himself was the child of a monogamous marriage, but that was no impediment to his contracting a marriage by native law and custom. Even a person who has himself contracted a monogamous marriage under the Ordinance is by section 37 of the Ordinance prohibited from contracting a valid marriage under any native law or custom only during the continuance of the monogamous marriage. If, then, the respondent children are found to have been from birth legitimate children of the deceased the only question with which their Lordships are concerned is whether they are entitled to share in the succession of the deceased under the Statute of Distributions.

Their Lordships entertain little doubt that under what are now well-accepted principles recognized by the English courts no ground exists, in circumstances like the present, for excluding the respondents from taking their rights of succession if they are legitimate children of the deceased under the law of their domicile. In In re Don’s Estate,⁴ Kindersley V.-C., dealing with the status of a child born in Scotland of a father domiciled there and legitimated by the subsequent marriage of his parents, said: “It appears to me that on the authorities applicable to this question, the principle is this: that the legitimacy or illegitimacy of any individual is to be determined by the law of that country which is the country of his origin. If he is legitimate in his own country, then all other civilized countries, at least all Christian countries, recognize him as legitimate everywhere. Questions may arise, and have arisen, whether the law which is to determine the legitimacy or illegitimacy, is the law of the country where the individual was born, or the law of the country where the parents intermarried, or the law of the country of the domicile of the parents? And if the domicile of the parents was different, whether the law of the father’s or mother’s domicile governs? If it were necessary for me to determine these questions I should hold that the law of the father’s domicile governed.” None of the special questions referred to in this passage arise here for, as their Lordships apprehend, all the circumstances concur to fix Nigeria as the domicile of the parents, the place of their marriages, and the place of birth of the children. This, and similar expressions of opinion in earlier cases, were no doubt given in cases dealing with the institution of monogamous marriage. But more recent authority shows that the principle cannot be confined within so narrow a field. (See

⁴ (1857) 4 Drew. 194, 197.

[*118] the opinion of Lord Maugham in the Sinha Peerage Claim case⁵ and the opinion of Lord Greene M.R. in Baindail v. Baindail.6 Their Lordships’ Board have also on various occasions had regard to and acted on the application of the Statute of Distributions to Chinese successions in the Straits Settlements, arising from polygamous unions. (See Cheang Thye Phin v. Tan Ah Loy⁷; Khoo Hooi Leong v. Khoo Hean Kwee⁸; Khoo Hooi Leong v. Khoo Chong Yeok.⁹

In their Lordships’ opinion the West African Court of Appeal has reached a right conclusion on the law applicable in this case. In re Goodmans Trusts,¹⁰ on which that court in the case of Macaulay’s Estate¹¹ largely proceeded, was a case under the Statute of Distributions in which it was held by a majority of the Court of Appeal that a child born in Holland, where her parents were at the time domiciled, who had been legitimated under Dutch law by the subsequent marriage of the parents there, was entitled to share as a “brother’s child” under the Statute of Distributions. As already indicated, their Lordships cannot hold that the principle of this decision is restricted to the case of monogamous marriage. Cotton L.J. said in that case¹²: “… I am of opinion that if a child is legitimate by the law of the country where at the time of its birth its parents were domiciled, the law of England, except in the case of succession to real estate in England, recognizes and acts on the status thus declared by the law of the domicile.” And James L.J. said13: “It must be borne in mind that the Statute of Distributions is not a statute for Englishmen only, but for all persons, whether English or not, dying intestate and domiciled in England, and not for any Englishman dying domiciled abroad. … And, as the law applies universally to persons of all countries, races, and religions whatsoever, the proper law to be applied in determining kindred is the universal law, the international law, adopted by the comity of States. The child of a man would be his child so ascertained and so determined.” The decision and reasoning of the majority in that case has not, so far as their Lordships are aware, been questioned in any subsequent case.

⁵ Journals of the House of Lords, 1939, Vol. 171, p. 350.

⁶ [1946] P. 122; 62 T.L.R. 263; [1946] 1 All E.R. 342.

⁷ [1920] A.C. 369.

⁸ [1926] A.C. 529.

⁹ [1930] A.C. 346.

¹⁰ (1881) 17 Ch.D. 266.

¹¹ Cyclostyled Reps., Nov. 23, 1951.

¹² 17 Ch.D. 266, 292.

¹³ Ibid. 300.

[*119] It proceeds in their opinion on sound principle and gives a meaning and effect to the Statute of Distributions wider than it would have under the purely domestic law of England.

In the present case the Statute of Distributions is a statute applying to a limited class of persons domiciled in Nigeria. As a matter of construction and on the authorities referred to it cannot in their Lordships’ opinion be limited in its local application to children who are the issue of monogamous unions. The effect of the application of the statute in the cases to which it applies is to fix the order of succession according to a table different from that prevailing under native law and custom, leaving it to the courts to determine in accordance with the principles indicated who are the particular individuals who fall within any particular class in the succession table.

It was contended for the appellant that the Statute of Distributions could not be applied to polygamous unions because of the difficulty of applying its provisions to a plurality of wives. The West African Court of Appeal observed that no claim had been put forward in this case by any person as a widow of the deceased, and their Lordships propose to say nothing as to what rights, if any, widows would have in the event of a claim being made. They cannot, however, agree with the appellant’s submission. Whatever difficulties may arise in the case of the mothers of the children, the claims of the children as lawful children of the deceased must, in their Lordships’ opinion, be considered independently. This may be so in some cases even in questions of status. In a judgment of the Board in Khoo Hooi Leong v. Khoo Hean Kwee,¹⁴ where the claim of a child to be legitimate by the law of a community in which polygamy was recognized and practised was considered, Lord Phillimore, who delivered the judgment of the Board, said¹⁵: “In deciding upon a case where the customs and the laws are so different from British ideas a court may do well to recollect that it is a possible jural conception that a child may be legitimate, though its parents were not and could not be legitimately married. This principle was admitted by the canon law which governed western continental Europe till about a century ago and governed still later, if it does not govern still, the countries of Spanish America.” Two other cases may be mentioned. In Seedat’s Executors v. The Master (Natal),¹⁶ the Supreme Court of

¹⁴ [1926] A.C. 529.

¹⁵ Ibid. 543.

¹⁶ [1917] S.A.L.R.(A.D.) 302.

[*120] South Africa held, in a learned judgment by Sir James Rose-Innes C.J., that they could not recognize as valid in Natal a polygamous marriage of the deceased entered into in India before he became domiciled in Natal, but that the children of this marriage, who were all born in India while their parents were domiciled there, were entitled to be treated as legitimate children. Accordingly, while the widow was not entitled to exemption in the matter of succession duty but, on the contrary, was liable to the rate appropriate to a stranger in blood, the rate of duty attributable to the children’s share of the succession was held to be that borne by lawful children of a testator. Again in In re Bischoffsheim¹⁷ Romer J. had to consider the question of the legitimacy for the purposes of succession under the will of an English testator of a child born in New York of English parents who were domiciled in New York at the time of the child’s birth. A question might have been raised as to the validity of the parents’ marriage under English law, but in holding that the child was legitimate by the law of New York at the time of his birth and therefore entitled to be treated as a lawful child of his mother under the will, Romer J. adopted the view¹⁸ “that where succession to personal property depends on the legitimacy of the claimant, the status of legitimacy conferred on him by his domicile of origin (i.e., the domicile of his parents at his birth) will be recognized by our courts; and that, if that legitimacy be established, the validity of his parents’ marriage should not be entertained as a relevant subject for investigation.” It would be a strange result that in the converse case where a marriage of the parents was recognized as valid the children should be deprived of their rights of succession because of a difficulty in working out the rights of the wife.

In their Lordships’ view the West African Court of Appeal reached a right conclusion. They have accordingly humbly advised Her Majesty to dismiss the appeal. The appellant must pay the costs of the respondents other than the Administrator-General, who was not represented before the Board.

¹⁷ [1948] Ch. 79; 64 T.L.R. 36: [1947] 2 All E.R. 830.

¹⁸ [1948] Ch. 92.