Lord Goddard.-

On 12th June 1936, the respondent issued a writ in the Supreme Court of Judicature, Jamaica, claiming to be the only lawful brother, sole next of kin, and heir at law of Osmond Vincent Marsh, deceased, who died on 11th January 1936, intestate, and claiming administration of his estate. The writ was issued against the appellant because she had entered a caveat and had alleged that she was the widow of the deceased. The statement of claim denied the interest of the appellant and alleged that she had been divorced by the deceased, a decree nisi obtained by him on 10th January 1933, having been made absolute on 19th January 1934. By her defence the appellant disputed the validity of the decree absolute. Concisely stated the allegations set out in para. 3 of the defence were that on 15th January 1934 one E.A.L. Hodge, pursuant to S. 19 of the Divorce Law of 1879 and R.35 of the Divorce Rules appeared in the proceedings to show cause against the decree being made absolute, but that the Court without notice to him and though the period within which under the rules he was permitted to file affidavits in support of his intervention had not expired, proceeded to make the decree absolute. It was further alleged that Hodge applied for leave to appeal to His Majesty in Council against the making of the decree absolute and that his application was refused by the Court but that special leave was granted by Order in Council dated 14th August 1934. Then it was pleaded that after the arguments before the Board were concluded but before judgment was delivered, it was ascertained that the deceased had died, whereupon an Order in Council was passed to the effect that the appeal had abated and no order was made except that the security lodged be returned to the said Hodge. On 1st March 1940, an order was made in the action whereby assuming the facts pleaded in the defence were established and assuming that the plaintiff is the only lawful brother and sole next of kin and heir at law of the deceased, certain points of law were set down for hearing before the trial. It is unnecessary to set out the seven points of law directed to be decided in extenso, as it is agreed that they all come down to the single question whether or not the decree absolute in the circumstances is valid. As the defendant expressly referred, in para. 3 of the defence, to the record in the divorce proceedings and in the subsequent appeal to this Board, there is no question but that the Court in Jamaica and their Lordships in the present appeal can refer to these documents for the purpose of elucidating the facts. The order directed that the points of law should be argued before the Court of Appeal and on 24th July 1941, that Court (Sir Robert Furness C. J., Seton and Savary JJ.) determined all the questions in favour of the plaintiff. By Order in Council of 22nd July 1943, special leave, to appeal against their judgment was granted.

On the hearing of the appeal Mr. Comyns Carr for the appellant formulated two questions. The first was does the fact that at the date of the death of the deceased the intervener's appeal was pending prevent the decree absolute operating so as to deprive the appellant of her status as the wife of the deceased. This of course assumes that the decree absolute was a valid decree and on that assumption the question admits of only one answer. It dissolved the marriage from the moment it was pronounced and at the date when the appeal by the intervener abated it stood unreversed. The fact that neither spouse could remarry until the time for appealing had expired in no way affects the full operation of the decree. It is a judgment in rem and unless and until a Court of Appeal reversed it the marriage was for all purposes at an end. The second question was whether the failure to comply with the rules relating to intervention, in that the decree absolute was pronounced on the third instead of the fourth day after the intervener had entered an appe