This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Presumption as to validity of marriage, the factum being proved.
(s) Wigley v. Solicitor to the Treasury, 1902, P. 233; 71 L. J. P. 115; and see S. v. Lindsay, (1902) 66 J. P. 505. (t) See Hub. on Ev. 63. (u) Piers v. P., (1849) 2 H. L. C. 331; 13 Jur. 569; Dumoncel v. B.,
(1852) 13 Ir. Eq. R. at p. 97; Harrison v. Corp. of Southampton,
(1853) 4 D. M. & G. 137; 22 L. J. Ch. 722; Taylor, 9th ed. 149; Be Thoren v. A.-g., (1876) 1 A. O. 686; 3 Rett. (H. L.) 28; Sastry v. Sembecutty, (1881) 6 A. C. 364; 50 L. J. P. C. 28; Re Shephard, 1904, 1 Ch. 456; 73 L. J. Ch. 401; Re Birch, (1853) 17 Beav. 358; R. v. St. Mary Magdalen', (1853) 2 E. & B. 809; 23 L. J. M. C. 1; Taylor, 11th ed. p. 166.
(x) Armitage v. A., (1866) 3 Eq. 343; Re Bethell, (1888) 38 Ch. D. 220; Brinkley v. A.-g., (1890) 15 P. D. 76; and see farther on this subject, and as to marriages entitled to the privilege of necessity, Ruding v. Smith, (1821) 2 Hag. Consist. 371; Eversley on Domestic Relations, 4th ed. p. 4.
(y) Re Bethell, sup.; Eversley, pp. 75 and 457.
By the Legitimacy Declaration Act, 1858 (z), any natural torn subject of the King, or any person whose right to be deemed a natural born subject depends wholly or in part on his legitimacy or on the validity of a marriage, being domiciled in England, or claiming any real or personal estate in England, may petition the Probate Division of the High Court for a decree declaring that he is the legitimate child of his parents; or that the marriage of his father and mother or of his grandfather and grandmother was a valid marriage; or that his own marriage was or is valid; and power is given to the Court to determine the question of legitimacy, or of the validity of any such marriage; but its decree is not to prejudice the rights of persons who are not cited, or to have a valid effect if obtained by fraud or collusion.
As to the Legitimacy Declaration Act, 1858.
The Legitimacy Act, 1926, enables a person to become legitimated by the subsequent marriage of his parents; and by s. 2, a person claiming that he or his parent or any remoter ancestor became or has become legitimated, may (whether domiciled in England or elsewhere, and whether a natural born British subject or not) present a petition under the Legitimacy Declaration Act, 1858, and that Act, subject to any necessary modifications prescribed by rules of Court, is to apply accordingly.
As between vendor and purchaser, no presumption of death arises from the mere fact of a person having been unheard of for seven years (a); nor can any precise period be fixed which will raise such a presumption; but every case must depend upon its own particular circumstances. For instance, in a case like that of the President steam vessel, never heard of after setting out to cross the Atlantic, at the end of seven years the death of all parties on board might probably, even as between vendor and purchaser, be presumed (6); while a very much longer period might be necessary between vendor and purchaser in the case of a vessel supposed to have been lost in navigating an ocean, thickly studded with islands, like parts of the Pacific.
Presumption of death - as between vendor and purchaser:
(z) See Ann. Pr. E. S. C. 1883, Ord. XXXVII. rr. 35 - 38; West v. Sackville, 1903, 2 Ch. 378; 72 L. J. Ch. 649; see also Evans v. E., 1904, P. 274.
(a) Hub. on Ev. 178. As to evidence of sufficient inquiry, see Doe v. Andrews, (1850) 15 Q. B. 756. As to the presumption of death after seven years in Scotland, see the Presumption of Life (Scotland) Act, 1891, ss. 1, 7.
There have been many decisions upon the above point as between adverse claimants to property: for instance, the absence beyond seas of a mortgagor for thirty years without being heard of, was held sufficient to entitle the heir to redeem (c). Between parties claiming under a will, the death of the legatee has been presumed from absence in America without tidings or reply made to advertisements for twenty-two years (d); in Cuthbert v. Purrier (e), where a fund was set apart to answer an annuity to a native woman in India, of whom nothing had been heard since 1815, Lord Cottenham, in 1837, ordered payment of the principal to the party entitled subject to the annuity, without requiring any security to refund (f). So, in Dowley v. Winfield (g), (an administration suit,) the death of a legatee was presumed who, when of the age of seventeen, had deserted his ship at one of the Sandwich Islands, and had not been heard of for twelve years: and in another case payment out of Court was ordered of a sum of money to the administrators of a person who had gone to America and had not been heard of for seven years (h). But the Court will require evidence of all practicable inquiry having been made (i): and has refused to act on the common presumption (k) when circumstances rendered it improbable that the absentee, if alive, would have communicated with his friends (I).
As between adverse claimants to property.
(b) See Sillick v. Booth, (1841) 1 Y. & C. C. C. 117; 11 L. J. X. S. Ch. 41.
(c) Hasten v. Cookson, (1734) 2 Eq. Ca. Ab. 414, pi. 14.
(d) Bust v. Baker, (1837) 8 Si. 443. (e) (1847) 2 Ph. 199.
(f) (1847) 2 Ph. see p. 200.
(g) (1844) 14 Si. 277; 8 Jur. 972; and see Watson v. England, (1844) 14 Si. 28; 2L.T. (O. S.) 455.
(h) Dunsmure v. Boulderson, (1841) 5 Jur. 958; and see Whitlow v. Dilworth, (1854) 2 S. & G. 35; 2 W. R. 150; Re Webb's Est., (1871) 5 I. R. Eq. 235; Be Benjamin, 1902, 1 Ch. 723; 71 L. J. Ch. 319.
(i) Be Creed, (1852) 1 Dr. 235; see Be Lyford's Tr., (1853) 17 Jur. 570.
(k) It is not the practice of the Probate Division to presume death; see Be Jackson (1902) 87 L. T. 747.
The value of the non-receipt of intelligence of a person who has gone abroad, and has not been heard of for several years, and who cannot be presumed to have perished by some casualty, such as the foundering of a vessel on which he is known to have been a passenger, must depend upon the special circumstances of each case; e.g., the duration of his absence, and whether it can be satisfactorily explained or not, the nature of the last communication received, and whether the previous communications were frequent or intermittent, the station in life of the missing person, and the degree of relationship or intimacy subsisting between him and the persons with whom he was in the habit of corresponding. In many cases the mere non-receipt of tidings for a period of seven years is wholly insufficient to raise the presumption; and in all cases the evidence of those who are interested in proving the fact of death must be received with hesitation.