Distribution of estate of deceased—The deceased the issue of a marriage under
Marriage Ordinance himself married under Marriage Ordinance having no
issue of such marriage—Rights of children by native law and custom and of children of irregular unions.
Facts
The deceased, the issue of a marriage under the Marriage Ordinance (Cap. 128), was himself married under that Ordinance, having no issue of his marriage, but a number of children, some of whom were children of several marriages by native law and custom and the others children of irregular unions.
All the children were the appellants.
The trial Judge held that the appellants were not entitled to any share in the
estate unless it should be shown that in the absence of next-of-kin it would
escheat to the Crown.
The issue before the Courts was the right of such children to inherit the
personal property of the deceased.
Section 36 of the said Ordinance provides that in such circumstances the personal property of the deceased shall be distributed in accordance with the provisions of the law of England relating to the distribution of the personal estate of intestates any native law or custom notwithstanding.
Counsel for the appellants, the said children, argued that in
English law the word children means legitimate children, and that the question of legitimacy is to be decided by the law of the domicile, that is Nigeria. The Court also had to determine he construction to be placed on the words. “any native law or custom to the contrary”. In the course of the arguments theCourt considered the case of Estate of F. A. Somefun-in re Williams (4), and came to the conclusion that it was wrongly decided per incuriam and should not be followed.
Held
The persons entitled to distribution must be ascertained by reference to the law of England, and that such laws decided legitimacy according to the laws of the country of domicile.
The words “any native law or custom” did not affect distribution according to English law. The effects of these words
was that no native law or custom could give to any person entitled to share i
the distribution of personal estate a larger or less share than such person would receive under English law.
The Court referred the case back to the trial Court to ascertain which of the children were legitimate according to native law and
custom.
Appeal allowed.
