Shaw v Shaw
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE MORRIS |
| Judgment Date | 25 June 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0625-1 |
| Court | Court of Appeal |
| Docket Number | 1953 S. No. 1833. |
| Date | 25 June 1954 |
[1954] EWCA Civ J0625-1
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Denning, and
Lord Justice Morris
Counsel for the Appellant: MR. W.A.L. ALLARDICE. instructed by Messrs Sharpe, Pritchard Co., Agents for Messrs Dallow and Dallow, Wolverhampton.
Counsel for the Respondents MR R.E. QHAPMAN, instructed by Messrs J.O.H. Bawdier and Sons, Shrewsbury.
This appeal arises out of a by the Plaintiff in the action , upon the , appears am lire Violet Shaw, and the claim was one for mages fop breach of marriage. She brought the action against the Administrators of the estate of one Percy John Shaw, and the Administrators are a son and a married daughter of the late Mr She Plaintiff was a widow, Moseley, when, in the year 1937, Mr Percy JohnShaw, dome later in that year he, who had described himself to her as a widower, proposed marriage to her, and she accepted him. They went through a torn, of marriage at the Registry office in the District of Can nook on the 10th December, 1938, so that there was a deal of delay before the ceremony of marriage took place. She had a young daughter some 15 years of age to whom they showed the Marriage Certificate after they returned from the ceremony, were thereafter looked upon as husband and wife, and she was known as Mrs Shaw. One of Mr Shaw's sons, the first of the Defendants, lived somewhere near, and visited from time to time, and he treated the Plaintiff as his stepmother. On the 11th February, 1952, Mr Shaw died, and in the ordinary course the Plaintiff commenced, to deal with the estate. There was no Will, but she believing that she was the widow, busied herself with certain affairs, when there came a letter from the solicitors acting for the son and acting for the Defendants now. 2hat letter was dated the 10th , and it reads: "Percy John Shaw, . We have been consulted "by Mr W.J. Shaw the son of the above named deccased, with reference to his father's death on the February last. We shall be much obliged if you can let us know whether the late Mr Shaw left a Will, and, if so, if you could plcase supply us with a copy thereof, or, if you wish, you could put us in touch with the Solicitorsdealing with his estate. your faithfully, J.O.H, & Sons. " letter is addressed to Mrs Shaw, , Wheaton Aston, , Staffs.
At that farm Mr Percy John Shaw and the Plaintiff lived as husband and wife for some 14 years. There was stock, and there were implements and the like such as you find on a small farm, and the estate was worth somewhere around £1,500. In the ordinary course, following the provisions of the for distribution of intestates property at that time in force, the was entitled, or would have been entitled, to the first £1,000 of the estate, and to a life interest in half of the real due. In fact, the estate which Mr Shaw left had been belt up to a considerable extent out of the Plaintiff's money. She had been a widow for some years before she met Mr. ; she had worked, and she had saved money; she advanced, or, as she said, gave to him, during the marriage some £300 in odd sums to buy stock, calves and the like, to get him the farm when the land was acquired, and she also advanced to him a sum of odd to pay a bill from some agricultural machinery makers; thus some £250 had been advanced by her towards the establishing of a farm, and the benefit of that was in his estate.
Fairly soon after the letter of the 10th March, 1952, another question arose, but I should say that when Mr Shaw was burled the Plaintiff went to the funeral along with the son, the Defendant, and they walked behind the coffin. She was treated as the widow of Mr Shaw. On the 15th April the solicitors for the Defendants wrote to the solid tore for Plaintiff: "We thank you for your letter of the 9th instant and for the Information there in contained, which we will communicate to our client. In view of 1he matters raised in our telephone conversation of the 9th instant, you sill no doubt delay distribution ofany may in your hands, the has up. We have written to our , asking bin to bring in his mother death certificate and, If possible her certificate, and we will pass these on to you when they are to hand," Thus someone had raised a question of some nicety.
The Second Defendant is Mrs Gibson, a daughter of Mr marriage. Mrs Gibson lived at Leicester with the one who was the wife, or shall I say the first , of Mr . She produced the Death Certificate of her no , and that shove that Cecilia Shaw died on the 5th July, 1990, and the information as to her death was by R. Gibson, -in-law, 21, Upper Kent Street, Leicester, and the rank or profession is given as "Widow of Percy John Driver." So she, Mrs Shaw, as described on the Death Certificate as the widow of Percy John , and that info rain Hon was given by her son-in-law, the husband of one of the Defendants in this action. It then became clear that Mr of law who had represented himself as being a widower in the year 1937, and who at the time of his ceremony of marriage with the Plaintiff had described himself as a widower, was not a widower, for his wife, haw, lived until the year 1990. Mr Shaw himself lived for about 21 months after that time. It is an interesting thought that he described himself as a widower, and the son-in-law, described the first Mrs as a . When Mr parted from his wife I do not know; there is nothing to show; but at some time the family broke up; the daughter who became Mrs Gibson lived with her mother in Leicester; again. I do not know for how long; one son, the Defendant who is Wilfred, lived not very far from his father. What the actual knowledge of the father, Mr Shaw, was as to theposition, again is somewhat uncertain. The Plaintiff said he, Mr Shaw, told her he was a widower; she said in her examination chief in this case that he had told her that his wife was dead and she was buried in the Potteries. She was cross-examined upon that, and again she said: "Oh, yes, ha told me she was buried in the Potteries. The fact remains that as the lady was alive at the of the ceremony of marriage between the Plaintiff and Mr Shaw the marriage was not a valid marriage, and in the result the son, Wilfred Shaw, and the daughter, Gibson, took out Letters of Administration, and, as the matter stands, the one who had lived with Sr. Shaw as his wife, and who had believed she was his wife for some 14 years, has no Interest whatever in the estate. She thought she had, and the son, Wilfred, through his solicitors said he was prepared to act as Joint Administrator with her on certain conditions. He thought she was the widow, apparently, at that time. After the death of Mr Shaw the Plaintiff gave a way some of his clothes. An action was brought in the County Court by the Administrators of the estate claiming damages in respect of that, and the Judge sitting in the County Court dismissed that action with costs.
Mrs. Shaw, the Plaintiff, brought this action claiming damages for breach of promise, and her Statement of Claim sets out the dates and the facts, and it is clear from the Pleadings that what she is alleging in substance is that when a promise of marriage was made to her there was an implied warranty that the one who offered marriage to her, and who promised to marry her, was in a position to marry her; In other words, that he was, as he said, a widower.
Various questions were raised in the Defence. In Paragraph 3 it is stated: "The Defendants admit that at the date of the said ceremony the Deceased was already to than as alleged but deny that like Plaintiff as Ignorant of that fact.
Paragraph 4 of the Defence: "She Defendants adult that the deceased never did marry the Plaintiff but deny that the Deccased sag in breach of the alleged or any promise or that the Plaintiff has suffered the damage alleged or at all"; and they set up Section 2 of the Act, 1939.
There was a Reply which alleged fraud, and also said that the Defendants were stopped from setting up certain matters which they sought to do.
The action came on for trial before Ito Justice on the 6th and 9th March of this year, and the Judge gave judgment for the Defendants, holding that the promise which was alleged was unenforceable because It was contrary to public policy as Mr Shaw had a wife living at the time, and that thus the Plaintiff could not succeed. He was in some doubt as to whether fraud on the part of Mr Shaw could be established or not.
The Plaintiff appeals to this Court against that Judgment, and Chapman, who appears on behalf of the Defendants, told the Court that he was not called upon to address the Court, and he did not raise any question of public policy. I should add that no evidence was called on the part of the Defendants. Except that the Plaintiff was able to give some information as to what Mr Shaw had told her, there was very little evidence of the position as between Mr Shaw and his wife; there was nothing to show when they separated or when they had last seen each other; nor is there anything to show that at the time of Mrs death Hr Shaw was told about it. On the other hand, 1 cannot refrain saving that when a question as to the Death Certificate of Mrs was raised Wilfred Shaw, the eon, produced it fairly soon. Wilfred Shaw in the years from father from time to time and it is surprising if there was no question from one to the other at some time: "Have you heard anything of your other lately? the eon to die father: "You heard that my mother was dead, did you?" If something of that sort had been said, it may be the fattier would have asked: "Where have they buried her?" He told the Plaintiff on...
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