The Sun.
London, England, 1858-04-17 00:00:00

OF HIS DECEASED WIFE.

Vice-Chancellor Stuart this morning delivered his
judgment in this case, which involves the question of the
validity in this country cf the marriage at Altona, in the
dusty of Schleswig-Holstein, where, by the lex loci, such
marriages are said to be legal, of a British subject domi-
ciled in England with the sister of his deceased wife.
The following are the facts of the case :—ln 1847 Char-
lotte, the first wife of the late William Leigh Brook, of

Meltham-hall, near Huddersfield, died. By her he had
one son and one daughter. In 1850, William
Leigh Brook intermarried at Altona in the duchy
of Schleswig-Holstein, with Emily, the sister of his
deceased wife. On the 17th of August, 1855, Mr?.
t3rook died at Frankfort of cholera, and two days after-

wards Mr. Brook died of the same disease at Cologne.
By his second wife Mr. Brook had one son and two
daughters. By his will, which was dated on the day of
his death, Mr. Brook gave his real and personal estate,
which was of considerable value, to the children of his
two marriages in certain proportions. In 1856 Charles
Armitage Brook, the son by the second marriage, died.
If the second marriage was valid, and the children
thereof, therefore, legitimate, the son of Mr Brook by
his first marriage succeeded by inheritance to Charles
Armitage Brook's share of Mr. Brook's real estate, and
the four surviving children of the two marriages suc-
ceeded as next of kin to Charles Armitage Brook's share
of Mr. Brook's personal estate. But if the second
marriage was Invalid, and the children thereof therefore
illegitimate, the Crown was entitled to Charles Ar-
mitage Brook's share of Mr. Brook's real and personal
estate. Further, if the marriage of Mr. Brook with
the sister of his deceased wife was valid, the duty pay-
able by the surviving children of the second marriage
on their succeeding to their father's property would be
only II per cent, whereas if such marriages were inva-
lid, and they should be illegitimate, they would pay the
duty of 101. per cent., which is the duty payable by
strangers who succeed to the property of a deceased
person. The contest in the present case, which was a
suit for obtaining a declaration by the Court of the rights
and interests of all parties in and to Mr. Brook's real
and personal estate, was between the eldest son by the
first marriage, who claimed to be the heir•at-law of
Charles Armitage Brook, and all the surviving children
of the two marriages, who claimed to be the next of kin
of Charles Armitage Brook on the one hand, and the
Crown on the other hand. Letters of administration

bad not yet been taken out to Charles Armitage

Brook. Prior to the sth and 6th of Wm. IV., cap. 54,
the marriage of a widower with the sister of his de.
ceased wife was voidable in die Ecclesiastical Court, as
being a marriage within the prohibited degree of affinity,
but such marriage was voidable only during the life of
both parties, and, if not avoided daring the life of the
parties it could not after the death of either be questioned.
In 1835, however, that Act, which is entitled " An Act
to render certain Marriages valid and to alter the Law
with respect to certain voidable Marriages," was passed,
and by the first section, it was enacted that all mar-
riages celebrated before the passing of the Act between
persona within the prohibited degrees of affinity should
not thereafter be annulled for that cause by any sentence
cf the Ecclesiastical Court, unless pronounced in a suit
then pending; and by the second section it was
enacted that all marriages celebrated between
persons within the prohibited degrees of con-
sanguinity or affinity should be absolutely null
and void to all intents and purposes whatsoever.
On the 4th of Dec, 1857, Mr. Justice Cresswell having
had the case referred to him for his opinion, delivered it
at great length, in doing so said—" In this case I have
been called upon by Vice-Chancellor Stuart to assist
him by giving my opinion as to the validity or invalidity
of a marriage solemnized at Altona, in the kingdom of
Denmark, between William Lsigh Brook and EMily
Armitage, the sister of W. L. Brook's former wife, then
deceased. In answer to certain inquiries, the chief
clerk of the Vice-Chancellor certified as follows :—' That
W. L. Brook and Emily Armitage were respectively,
up to and at the time of such marriage, and at the time
of their respective deaths, domiciled in England, and that
they had not any permanent residence in the country,
where they married ; that the marriage between W. L.
Brook and the said Emily Armitage was a lawful marriage
according to the law of the duchy of Hol.tein ; and
that, according to the same law, the children of such
marriage are legitimate children." 'Upon the latter
. part of the certificate it was observed in argument that
; it must be taken as a certificate that such marriages be-
tween Danish subjects are good, and not that the Danish
courts would hold them good when solemnised between
the subjects of another country domiciled in that country
where such marriages are prohibited by law. The opinion
which I have formed in this case renders it unnecessary
to inquire into that matter. For, even assuming that
in Denmark the marriage now in question would be
held good, I think that by the law of England it was
invalid, and the children cf the parties to it illegitimate."
His Honour, after citing at great length a number of
cases and authorities bearing on the point, raid, the
conclusion arrived at by Mr. Justice Cressweil was cor-
rect, and he therefore agreed with him that the mar-
riage between William Brook and Emily Armitage,
which was celebrated in Holstein, although a valid mar-
, riage by the law of that country was not valid in
England.