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 of failure of issue.
(s) Bowden v. Henderson, (1854) 2 Sm. & G. 360.
(t) Wing v. Angrave, (1860) 8 H. L. C. 183; 30 L. J. Ch. 65; and see Underwood v. Wing, (1855) 4 D. M. & G. 633; 24 L. J. Ch. 293: Wollaston v. Berkeley, (1876) 2 Ch. D. 213; Ommaney v. Stihvell, (1856) 23 Beav. 328; 28 L. T. (O. S.) 94; In the goods of Alston, 1892, P. 142; 61 L. J. P. 92; In the goods of Beynon, 1901, P. 141; 70 L. J. P. 81.
(u) S. 184.
(x) Be Jackson, 1907, 2 Ch. 354.
(y) Hub. on Ev. p. 203; Hemming v. Spiers, (1847) 15 Si. 550; 11 Jur. 294; Hub. on Ev. p. 204.
Many cases have occurred in which money has been paid out of Court, the title to which depended upon the presumption that females of advanced age were incapable of having issue (e); the age of fifty appears to have been the earliest age at which the Court in any reported case has acted upon this presumption (f). The practice of Sir G. Jessel, M. R.,
Presumption against aged females having future issue.
(z) See cases on peerage claims, cited Hub. on Ev. p. 205.
(a) lb. 230.
(b) See Hemming v. Spiers, (1847) 15 Si. 550; 11 Jur. 294; Re Webb's Est., (1871) 5 I. R. Eq. 235; Re Hanby, (1876) 25 W. R. 427.
(c) Hungate v. Gascoyne, (1846) 2 Ph. 25.
(d) See Mullaly v. Walsh, (1872) 6 I. R. C. L. 314.
(e) See Leng v. Hodges, (1822) Jac. 585; Brown v. Pringle, (1845) 4 Ha. 124, and earlier cases there cited; see the judgment in Brandon v. Woodthorpe, (1847) 10 Beav. 463, where the practice was admitted, although from other circumstances payment was refused; but the Court will not make this presumption for the purpose of depriving a living person of a possible interest; He Hocking, 1898, 2 Ch. 567; 67 L. J. Ch. 662; and see Re White, 1901, 1 Ch. 570; 70 L. J. Ch. 300. Forty-nine was held to be too early in Re Overhill, (1853) 17 Jur. 342; 22 L. J. Ch. 485; but see cases cited in next note.
(f) Miles v. Knight, (1848) 12 Jur. 666; 17 L. J. Ch. 458; Edwards v. Tuck, (1856) 23 Beav. 268, the woman being unmarried and fifty-eight; Dodd v. Wake, (1852) 6 De G. & S. 226; 21 L. J. Ch. 356, the woman being sixty-four; Re Widdow's Trusts, (1871) 11 Eq. 408; 40 L. J. Ch. 380, one of the parties being a widow aged fifty-five years and four months, who had never had any children, and the other a spinster, aged fifty-three years and nine months; Re Millner's Est. (1872) 14 Eq. 245; 42 L. J. Ch. 44, case of a married woman aged forty-nine years and nine was in all cases to require evidence that the menstrual periods had permanently ceased to recur. Lord St. Leonards appears to think that the presumption that a woman of advanced age is past childbearing would not be made against a purchaser (g) but in Ireland (h), a title dependent on such a presumption was forced upon a purchaser: and upon general principles, it would seem that such a course would, if necessary, be adopted; it being a moral, and not a mathematical, certainty of a good title, which a purchaser can require from a vendor (i). The Courts do not act upon a similar presumption in the case of a male (k).
The ordinary evidence of the facts of birth, marriage, and death (l), consists of certified extracts from the parochial registers, or from the general register, established by the Births and Deaths Registration Acts, 1836 to 1874, or, as regards deaths, from the burial registers established by the Burial Act, 1853, s. 8, ,and the Registration of Burials Act, 1864, s. 5; and by declarations as to the identity of the parties (m). The identity of a party to a marriage can be proved by proof of the handwriting of the party in the register or by calling a witness who was present at the ceremony (n); and in the case of proof by handwriting (o) without production of the register. The parochial registers are not, as a general rule, evidence of the time or order of birth (p); though they may go far to enable the practitioner to form an opinion upon these points (q); nor do they seem to be evidence of the time of death, except so far as they show that it must have occurred before the date of the burial, of which they seem to be evidence (r); and they are evidence of the time as well as of the fact of marriage (s). Under the Births and Deaths Registration Act, 1886, the birth or death, and not the baptism or burial, is the subject of registration; the date forms part of the entry required by the Act, and by s. 38 certified copies of the entries are to be received as evidence of the time of (t) birth, death, or marriage, to which the same relate. But s. 38 of the Births and Deaths Registration Act, 1874, negatives such evidence unless the entry purports to be signed by a proper informant: and in cases of births, registered more than three months after the birth, unless certain further formalities are observed: and also in cases of death where more than twelve months have intervened between the day of death or finding of the dead body and registration of the death or finding of the body. A certificate of death is accepted as evidence of the fact, without the production of the certificate of burial (u).
Births, marriages, and deaths; proved by extracts from parochial and general registers.
Months, who had never had any child; and see, for further instances, Groves v. G., (1863) 12 W. R. 45; 9 L. T. 533;Croxton v. May, (1878) 9 Ch. D. 388; 39 L. T. 461; Maden v. Taylor, (1876) 45 L. J. Ch. 569; Re Allason's Trusts, (1877) 36 L. T. 653; Davidson v. Kimpton, (1881) 18 Ch. D. 213; 45 L. T. 132; Hodges v. H., (1882) 20 Ch. D. at p. 752; 51 L. J. Ch. 549; Graham v. Parsons, (1885) W. N. 146; Re White, 1901, 1 Ch. 570; 70 L. J. Ch. 300; Re Eve, 1909, 1 Ch. 796; but in Re Warren, (1883) 52 L. J. Ch. 928; 49 L. T. 696, the Court of Appeal refused an application where the husband was fifty-three, and had been married for twenty-eight years to the wife, who was fifty, without having children, and there was medical evidence that it was almost, if not entirely, impossible that she should have children. See Seton, 7th ed. 1591.