Lesline Bess Appellant v Ardon Bess Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | ROBOTHAM, C. J.,Chief Justice |
| Judgment Date | 11 December 1986 |
| Judgment citation (vLex) | [1986] ECSC J1211-2 |
| Court | Court of Appeal (Saint Vincent) |
| Date | 11 December 1986 |
| Docket Number | CIVIL APPEAL NO. 8 of 1985 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Robotham—Chief Justice
The Honourable Mr. Justice Bishop
The Honourable Mr. Justice Moe
CIVIL APPEAL NO. 8 of 1985
O.R. Sylvester, Q.C., and Mark Williams for the Appellant
B.E. Commissiong and S.C. Commissiong for the Respondent
On November 21, 1983, the appellant Lesline Bess brought an action against the defendant/respondent Ardor Bess, in which she sought the revocation of the grant of letters of administration in the Estate of Norton Wilfred Bess, on June 27, 1983 to the respondent Ardon Bess, (Numbered 91 of 1983) consequent upon the death intestate of his father Norton Wilfred Bess (hereinafter referred to as the deceased), on June 17, 1982.
In its place she sought a grant of the Letters of Administration to her as his lawful widow. The action was dismissed by the learned trial Judge on September 23, 1985 and from this decision she has appealed to this Court.
The deceased was born in St. Vincent on July 11, 1921, and his birth certificate which was tendered in evidence gave his mother's name as Isolen Wilson. Being apparently illegitimate, no father's name was recorded.
On April 23, 1939 deceased went through a ceremony of marriage in St. Paul's Anglican Church, St. Vincent with Doreen Hyacinth Hinds and a duly authenticated certificate of marriage was put in evidence.
This certificate showed that the marriage was performed by one Arthur D. Castor, a marriage officer, and it gave the age of the deceased at the time of the marriage as 21. This could not have been his correct age if he was born on July 11, 1921 as the birth certificate showed, butrather, he would then have been 17 years and 9 months old. The witnesses to the marriage were Claude Hinds and Herminia John. His father's name was given on that certificate as Danley Bess. Nothing further is known of him in this case, nor of the mother of the defendant, Isolen Wilson.
Arising out of this union between the deceased and Doreen Hinds, the defendant/respondent was born on January 12, 1941, whilst the marriage was still subsisting.
The deceased met the appellant in Jamaica in August 1960 and a relationship was formed between them. By the year 1965, they were both living in Canada, and on December 7, 1965, they went through a ceremony of marriage in Cleveland, Ohio, U.S.A. In the application and in answer to the question Number of times previously married, the deceased answered "None".
At the time when the deceased went through the ceremoney of marriage with the appellant, whose maiden, name was Ho Young, the marriage celebrated between the deceased and Doreen Bess, in 1939 was still subsisting, and there had been no proceedings taken by anyone questioning the validity of this marriage.
Doreen Bess testified at the trial that she and the deceased separated in the year 1951.
On July 14, 1977, she obtained a Decree Nisi against the deceased in the Supreme Court of St. Vincent on the ground that the marriage had irretrievably broken dam in that since celebration of the marriage they had lived apart for a continuous period of 5 years immediately preceeding the presentation of the petition. This decree was made absolute on July 29, 1977 and was exhibited at the trial. Its validity has never been questioned.
The deceased and appellant lived in Oakville, Canada until 1978 when they returned to live in St.Vincent. On June 17, 1982 the deceases died intestate leaving the respondent as his Iawful son by the marriage to Doreen Bess in 1939, as well as the plaintiff/appellant, who in her Statement of Claim describes herself as the "widow and last relict of Wilfred Norton Bess".
From the foregoing, it is established that the deceased's marriage to the appellant on December 7, 1965 took place at a time when the marriage to Doreen Bess in 1939 was still subsisting, and it subsisted up to the time of the granting of the decree absolute in 1977. Neitherparty or anyone else had taken any steps questioning the validity of this 1939 marriage. Indeed up to the time of his death in 1982, there was no such challenge and the undisputed legal implication from the foregoing facts is that the marriage of the deceased and the plaintiff Lesline Bess (nee Ho Young) on December 7, 1965, could only be regarded as a valid marriage if the 1939 marriage between the deceased and Doreen Bess was void ab initio, for whatever cause.
The claim of the plaintiff/appellant to have the Court award her the grant of Letters of Administration, based on the fact that she was the lawful widow of the deceased is to be found in paragraphs 5 and 6 of the Statement of Claim.
The deceased on 23rd April 1939 forged and/or falsely represented his age as 21 years when he was (as the fact was) a minor and lacked the capacity to marry.
By virtue of the want of age of the deceased the purported marriage, on 23rd April, 1939, was a meretricious union and not a matrimonial union in contemplation of law and the said purported marriage was void ab initio.
In her judgment the trial Judge found that there was no evidence to lead to the conclusion that the deceased forged and/or falsely represented his age to be 21 for the purpose of his intended marriage to Doreen Hinds. No such evidence was given at the trial, and how and under what circumstances the age came to be stated in the certificate as 21, was not explained. Further, no evidence was put before the Court to show whether any consent of the parents or guardian of the deceased was or was not obtained prior to the marriage, or whether there were any such persons then alive who could have given such consent as contemplated in section 23 of the St. Vincent Marriage Act Chapter 151.
Section 23(1) states:
Persons who have reached the age of twenty-one and widowers and widows may marry without the consent of...
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