Before proceeding to answer this question we must emphasise that the expression “leaving a widow or husband or any issue of such marriage” in section 48 of the Marriage Ordinance does nothing more than indicate the condition precedent upon which English law would be applied to the estate of an intestate husband who married under the Ordinance; that is to say, English law will apply if a wife of such marriage survives him, or if any issue of such marriage survives him. It is not in accordance with the law, in our view, to hold that when a person subject to customary law marries under the Ordinance, and dies intestate, the only classes of persons entitled under the Statute of Distribution to share the two-thirds of his estate are a widow or a husband and/or issue of such marriage, as has been the practice hitherto in this country.
Under section 48 of the Marriage Ordinance, when the English law applies it does so only as to two-thirds of the estate; the other one-third is to be distributed in accordance with the provisions of the native customary law which would have obtained if such person had not been married under the Ordinance. The proportions to which wife and children in this country will be entitled in the whole of a deceased husband’s estate in law therefore are: (i) wife: 1/3 of 2/3, which is 2/9; (ii) children: 2/3 of 2/3, which is 4/9.
This section invokes the law of England relating to the distribution of personal estate of intestates in force on the 19th of November, 1884, and relates it to the distribution of two-thirds of the estate, real and personal, of two classes of intestates. These classes are: (i) persons married under the Ordinance, and ( ii) persons who are issue of marriages under the Ordinance. In the case of a person married under the Ordinance who dies intestate, the English law will apply only if such person (a) left a widow or husband of a marriage under the Ordinance, or (b) left issue of a marriage under the Ordinance; otherwise the law of England will not apply. In the case of issue of the marriage, no condition precedent is required to make the law of England applicable. It follows that since the plaintiff is issue of a marriage between the deceased and Wihelmina under the Ordinance, and has survived the deceased, the law of England applies to this case.
