The Floating Admiral - Agatha Christie [128]
COUNSEL’S OPINION ON FITZGERALD’S WILL
HAVE looked up your point in the library this afternoon and the result of my researches, for what they are worth, is that it certainly has been held again and again, where a certain person’s consent to marriage was required and that person had died by act of God, or at least by no fault of the beneficiary, the condition requiring a particular consent is void.
None of the cases run the thing so fine that there is only twenty-four hours between the death of the person whose consent is required and the wedding of the beneficiary who wants an absolute title to the property, and I think it would be necessary, where the death is within twenty-four hours of the ceremony, for the beneficiary, in order to get her absolute right, if there were any contest, to show:
Either (1) That she intended to ask the necessary consent before the marriage ceremony;
(2) That she was prevented by the death, and would have had time to ask consent but for the death;
and (3) If suggested that the death was any fault of hers, to defend herself against the allegation;
or else That the ceremony was not arranged until after death had made it impossible to obtain the necessary consent. Provided this last is true, it matters not how soon after the death the beneficiary claims to treat the condition as void.
As to the last possibility, I am no authority on marriage licences, but from the books it appears that provided one party has resided fifteen days in the locality in which it is intended the marriage should take place, notice may be given to the registrar by that party and a marriage licence obtained from the registrar after the lapse of one full week-day—in law language in forty-two to forty-eight hours, provided Sunday does not intervene.
This procedure is applicable to marriages in any other place than the established church, i.e., registrar’s office, or Nonconformist place of worship licensed for marriages.
Without the fifteen days of previous residence the business takes longer.
Once obtained a marriage licence is available for quite a long time: three months I think, but you might verify this. It is possible that one of your parties had got a licence and was waiting for a favourable opportunity for the beneficiary to ask the necessary consent. This sort of licence is only granted for marriage in a particular place. See Whitaker.
In the case of conditions, subsequent, if the condition is impossible through the act of God, the gift remains, tho’ there may be a gift over on non-performance of the condition. For instance, if the person whose consent to a marriage is required dies before the marriage.
Collett v Collett. 35. B. 312.
In this case the widowed mother’s consent to marriage was required. The mother died in 1856.
In July, 1865, her daughter Helena married.
Master of the Rolls held “that the gift over (i.e., to remainder man in case of life tenancy only) will not take effect, if the performance of the condition has become impossible thro’ the act of God, and no default of the person who had to perform it.
“Here it is reasonably certain that the mother, if she had lived, would have given her consent to this marriage, one eligible in all respects.”
The principle is the presumption of the testator not requiring the performance of impossibilities, and that his intention will be substantially carried into effect by permitting it to be executed as far as can be done.
“The condition having become impossible by act of God, her estate for life is become absolute.” Aislabie v. Rice. 3 Mad. 25 C.
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This 80th anniversary edition published by HarperCollinsPublishers 2011
First published in Great Britain by Hodder & Stoughton 1931
THE FLOATING ADMIRAL. Copyright © The Detection Club 1931, 2011. All rights reserved under International and Pan-American Copyright Conventions.