Re Taylor, decd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN |
| Judgment Date | 09 November 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1109-1 |
| Date | 09 November 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J1109-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Justice Barman and
Lord Justice Donovan
In the Matter of the Estate of John Taylor, deceased
Mr H. ALBERT, Q. C. and Mr J. L. Harman (instructed by Messrs Lucien Fior) appeared as Counsel for the Appellants.
Mr R. W. GOFF, Q. C. and Mr A. C. SPARROW (instructed by Messrs Bell, Brodrick & Gray, Agents for Messrs W. Norris Bazzard & Co., Amersham) appeared as Counsel for the Respondent.
: The claim of the plaintiff in this action was that he is entitled to share in the estate of John Taylor deceased (who died intestate on the 17th December 1955) as being one of John Taylor's legitimate children. The defendants to the action are the administrators of John Taylor's estate and are two children, admittedly legitimate children, by the intestate's marriage to Martha George, That marriage is recorded on a certificate which is before us as having taken place on the 23rd June 1914 and no question arises with regard to that marriage. Before that marriage, however, there is no doubt that the intestate cohabited for an appreciable period of time with a lady of the some that unusual name of Izender, called sometimes Izender Amer, Izender Lucas or Izender Taylor. She was of Romany extraction and appears to have been illiterate. She died on the 13th June 1913. It is not in doubt that she bore the intestate four children; the eldest was born on the 1st October 1904, a daughter called Florence, and the youngest was born on the 25th September 1911 called Horace, who is the plaintiff in this action.
The question raised in the action is whether the intestate and Izender were ever, and were more particularly at the date of the birth of the plaintiff, lawfully married. Ho certificate of marriage has been found or produced: nor is there any evidence of a ceremony of marriage. But the learned Judge, Mr Justice Danckwerts, concluded nonetheless that the evidence of reputation and of admissible declarations were such that he could and should conclude that John Taylor and Izender were lawfully married or were at least lawfully married at all relevant dates for the purpose of this action, and therefore that the plaintiff was entitled to claim as a lawful son and one of the next of kin of the into state. I will say at once that upon such a matter I am not prepared to say that the learned Judge's conclusion was wrong.
We have been much indebted to the arguments of Mr Albery and Mr Harman for the appellant and of Mr Goff for the respondent and for the careful scrutiny with their assistance which we have made of the record of the evidence. In the circumstances I do not think it necessary that I should go in detail through that evidence though I shall make some summary references to parts of it.
We were also referred to a number of cases and again I do not think it necessary to go at length through those cases though it is desirable, I conceive, that I should state in some form what I believe to be the law applicable in a case of this kind. It is to be noted that this is not a case (and this was a point naturally emphasised on the appellants part) in which the parents of the plaintiff did go through and intended to go through some form of marriage ceremony but where that ceremony has been shown to be, or to be perhaps in some degree, defective. Having looked at a number of these cases, it is also pertinent to observe that there appears to be a divergence, and it may be said to be a marked divergence, in the text books as regards the emphasis which in a case of this kind should be placed on the fact of reputation. On the one side there are the statements in the 19th volume of the third edition of Halsbury at page 812, paragraph 1323 entitled "Presumption from cohabitation" and the emphasis strongly favourable as to the effect of cohabitation is similarly stated in Powell on Evidence, 10th edition at page 342. On the other side in volume 15 of the same edition of Halsbury at page 347, paragraph 627, under the heading "Marriage and issue" and in Phipson on Evidence, 9th edition at page 700 the text indicates a far less strong presumption arising from the facts of cohabitation and reputation. I will take as an example of the first two text books the sentence in Powell at page 342: "As was said by Lord Lyndhurst in Morris v. Davies, and approved by Lord Cottenham in Piers v. Piers, this presumption of law" — that is the presumption that they have been married if they have cohabited long together as man and wife and been so treated — "is not lightly to be repelled and the evidence for repelling it must be strong, distinct, satisfactory and conclusive". Of course if that is the test then it would obviously throw upon the defendants in this case a very heavy burden once the plaintiff had established the fact that there had been for an appreciable period of time cohabitation as man and wife and an acceptance by the neighbourhood of them in that capacity. The four adjectives occur in the speech of Lord Cottenham in the case of Piers v, Piers (2 House of Lords Cases, p. 362) which is there referred to. That was a case of the kind which I earlier mentioned, not parallel to this, where the question was whether Sir John Bennett Piers having clearly gone through a form of marriage, the presumption of marriage in fact could be drawn in the absence of any record of that marriage or any appropriate record. Lord Cottenham's language therefore is strictly applicable to that kind of case where you assume, the evidence being that the parties did go through a form of marriage, that the marriage was in accordance with the law relating thereto. He quoted and approved in that connection Lord Lyndhurst's statement in Morris v, Davies, which was again a very different case from this, and used the four adjectives "strong, distinct, satisfactory and conclusive". Lord Brougham in his speech in the dame case qualified the statement by saying that for his part he was not quite prepared to use the word "conclusive". As I have referred to the case it may be of assistance to record that from Lord Campbell's opening sentence it is clear what the matter was that in Piers v. Piers was being determined and, as will be seen, it is not the same problem as arises in this case where, as I have said, there is no evidence whatever of there having in fact been a marriage ceremony. Lord Campbell said; "My Lords. It seems to me that this case depends entirely upon the effect to be given to the presumption of law in favour of the marriage. It is allowed that there is a presumption in its favour, and, until the contrary la proved, we are bound to draw the inference that everything existed which was necessary to constitute a valid marriage, and among other things, that there was a special licence from the Bishop of Sodor and Man. But it is likewise admitted on the other hand, that this is not a praesumptio juris, that it may be rebutted, and that it can only stand subject to the contrary being proved".
In spite, however, of the fact that the language I have referred to in Piers v. piers was applied to a case different in an essential respect from the present case, I think it is nonetheless true that during the century and more that has followed, something like a similar principle seems to have been adopted and treated as applicable in a case where, as here, the question, aye or no, were two people married, turns upon evidence of cohabitation and reputation in the absence of any evidence of a ceremony having been gone through. I have said that the principle has been applied in some decree, and for the purposes of stating what I now conceive the law to be in a case such as this I will take a phrase cited by Mr Justice Kekewich in the case of In re Shephard (1904, I Chancery, p. 456), a case to which much reference was made in the argument but which in my judgment does not upon the facts provide any very safe guidance for the present case. In In re Shephard Mr Justice Kekewich after referring to a Privy Council case, Sastry Velaider Aronegary v. Sembecutty Vaigalie, quoted the language used in that case by Sir Barnes Peacock: "'It appears from the authorities which he cited that, according to Roman-Dutch law, there was a presumption in favour of marriage rather than that of concubinage. It does not, therefore, appear to their Lordships that the law; of Ceylon is different from that which prevails in this country; namely" — and this is the essential sentence — "that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage". I take that passage as a statement of the law which ought to be applied in a case like the present, and I note the adverb "clearly", it is, of course, not to be forgotten that in the hundred years that have gone by since Piers v. Piers the law relating to the registration of carriages has been made much more strict, that communications are much easier and that the likelihood of people being married and nobody knowing about it and, indeed, not able to find a record of it is no doubt much decreased.
Still as recently as 1937 the case of Re Taplin came before Or Justice almonds, as he then was, in which again the problem arose largely out of the circumstance that the parties had apparently gone through a marriage ceremony, the question being whether the ceremony was proved to have been effective. But Lord Simonds began his Judgment as follows: "They" - that was the man and woman in that case who had lived together for 10 years in a small community — "were there received...
To continue reading
Request your trial
- Mohamed Abu Bakar s/o Yusof v P.A. Syed Aboothahir s/o P.Ahmed (1990) 1 MSCLC 90, 392;
-
Re Shiu Pak Nin
...to. (23) Sydall v. Castings Ltd., [1967] 1 Q.B. 302; [1966] 3 W.L.R. 1126; [1966] 3 All E.R. 770, referred to. (24) Taylor, In re, [1961] 1 W.L.R. 9; [1961] 1 All E.R. 55, applied. (25) Watson-Morgan v. Grant, 1990–91 CILR 81, referred to. Legislation construed: Status of Children Law 2003,......
-
A Deed of Trust between Shiu Pak Nin and HSBC International Trustee Ltd, dated 10 March 1998 known as the Shiu Pak Nin Discretionary Trust and the Trusts Law (2011 Revision)
...occurred outside the jurisdiction: see Halsbury's Laws, 5 th Edition, Matrimonial and Civil Partnership Law, Volume 72, paragraphs 6�7; Re Taylor [1961] 1 All ER 55, CA; Mahadervan v Mahadervan [1962] 3 All ER 155 An issue arises as to whether the Settlor's youngest daughter by Madam Law,......
-
Le v. Le, (2008) 452 A.R. 216 (QB)
...45 D.L.R.(3d) 596, refd to. [para. 4]. Taplin, Re; Watson v. Tate, [1937] 3 All E.R. 105, refd to. [para. 4]. Taylor v. Taylor et al., [1961] 1 All E.R. 55, refd to. [para. Cao v. Le, [2007] B.C.T.C. Uned. C48; 37 R.F.L.(6th) 188; 2007 BCSC 499, refd to. [para. 4]. Uppal v. Uppal, [1977] 2 ......