Porteous v. Dorn et al., [1975] 2 SCR 37

Supreme Court of Canada

Porteous v. Dorn et al., [1975] 2 S.C.R. 37

Date: 1974-04-29

Frances Porteous (Plaintiff) Appellant;

and

Ida Dorn et al. (Defendants) Respondents.

1974: March 6, 7; 1974: April 29.

Present: Judson, Spence, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Evidence—Intestacy—Whether appellant lawful daughter of deceased—Statement of claim and settlement agreement concerning claim by appellant’s mother against deceased for wages as housekeeper—Admissibility of statement of claim and agreement.

The deceased R died intestate in 1967. The appellant, P, who was born in 1927, claimed to be R’s lawful daughter and the beneficiary of his entire estate. The case for P was that her mother (G) and R were married on September 20, 1925, at East Grand Forks, Minnesota. However there was no evidence of cohabitation prior to 1928 and the respondents, kin of R, refused to acknowledge such marriage. A statement of claim had been filed in April 1946 in which G sued R, claiming she had been hired by him as housekeeper during the preceeding 18 years at a monthly wage of $40 which he had failed and neglected to pay. In June of the same year an agreement was executed in which R agreed to pay G the sum of $3,000 in settlement of her claim. The trial judge, who found in favour of P, admitted the statement of claim and agreement in evidence but held, on the principle they constituted a declaration respecting pedigree or family history not made ante litem motam, they could be used only for the limited purpose of establishing the fact of the proceedings being taken. The Court of Appeal concluded that the judge erred in holding the statement of claim and agreement were inadmissible except for the limited purpose and reversed the judgment.

Held: The appeal should be dismissed.

There was no evidence of celebration of a marriage after the birth of P as would allow her to call in aid The Legitimation Act of Saskatchewan, and at common law a presumptive marriage could not have retroactive effect to legitimize a birth antedating cohabitation of the parents. Considering the evidence

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as a whole, it was apparent that the evidence against P’s contentions was substantial and indeed overwhelming when the statement of claim and the settlement agreement were considered.

The statement of claim was admissible to prove that in 1946 an issue was raised by G whereby she claimed 18 years’ wages as a housekeeper for R.

The law recognized, as one of the numerous exceptions to the hearsay rule, the hearsay of deceased relatives in proof of matters of pedigree. The statement of claim and agreement were hearsay respecting pedigree or family history and the declarations were ante litem motam. In 1946 there was no “lis mota” affecting the pedigree of P or relating to the marital status of her mother. There was nothing to incline G to falsehood in casting herself in the role of housekeeper and employee, and every reason for R to plead marriage in defence of the claim if the facts had supported such a plea. No such defence was raised.

Lyell v. Kennedy (1889), 14 App. Cas. 437; Berkeley Peerage Case, [1811] 4 Camp. 401; Pejepscot Paper Co. v. Farren, [1933] S.C.R. 388, applied.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], allowing an appeal from a judgment of Johnson J. Appeal dismissed.

W.G. Burke-Robertson, Q.C., for the plaintiff, appellant.

K.R. MacLeod, Q.C., and B.J. Scherman, for the defendants, respondents.

The judgment of the Court was delivered by

DICKSON J.—This litigation arises out of an originating notice of motion issued at the instance of Retailers’ Trust Company, administrator of the estate of the late Frank Rosenmeyer, in his lifetime of Yorkton, in the Province of

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Saskatchewan, for a declaration as to the beneficiaries of the estate. An issue was directed to determine whether or not the claimant Frances Porteous was the lawful daughter of the late Mr. Rosenmeyer for, if so, she succeeds to the entire estate. The trial judge, Johnson J., found in favour of Mrs. Porteous. The Court of Appeal for Saskatchewan held against her and an appeal has now been taken by Mrs. Porteous to this Court.

The question is whether at the date of birth of Mrs. Porteous on February 24, 1927, Mr. Rosenmeyer and Mrs. Porteous’ mother (born Mary Shauer, also known as Mary Showers or Mary Sharey) were lawfully married. The case for Mrs. Porteous is that her mother and Mr. Rosenmeyer were married on September 20, 1925, at East Grand Forks, in the State of Minnesota, U.S.A. The respondents, kin of Mr. Rosenmeyer, refuse to acknowledge such marriage and say further that in any event Mrs. Porteous’ mother did not have capacity to marry Mr. Rosenmeyer as there was no evidence from which a court could properly conclude that her previous husband, Yustave Gulka, was dead at the time of the alleged second ceremony. It appears tolerably clear from the evidence that Gulka and Mary Shauer were married at Yorkton, on November 18, 1916, and four children were born of the union, Adele (born December 14, 1917), Roger and Olga, who were twins, and Michael. On some indeterminate date in the early or mid-nineteen twenties Gulka deserted his wife and children, and since then has not been heard of. Following the desertion, Mrs. Gulka gave birth on February 24, 1927, to another child Frances, now Mrs. Porteous and a year or so later, with her daughters Adele and Frances, she took up residence with Frank Rosenmeyer at his farm near Yorkton. There she lived, with one or two interruptions, until her death at the age of 52, on July 23, 1953. Mr. Rosenmeyer died intestate, at the age of 91, on December 15, 1967.

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The documents upon which Mrs. Porteous relies in support of her claim of marriage between her mother and Mr. Rosenmeyer are (i) a delayed registration of birth. On July 4, 1950, Mr. Rosenmeyer registered the birth on February 24, 1927, of Mrs. Porteous under the name “Frances Rosenmeyer”. Her mother’s was given as “Mary Showers” and the place and date of marriage of the parents were stated to be East Grand Forks, Minnesota, U.S.A., September 20, 1925; (ii) an extract from the Yorkton Enterprise of Thursday, December 22, 1949, in which Mr. and Mrs. F. Rosenmeyer announced the engagement of their daughter, Frances, to Mr. William Lee Porteous; (iii) a Saskatchewan Hospital Services Plan slip recording the stay of “Mrs. M. Rosenmeyer” in Yorkton General Hospital from November 16 to December 4, 1950. These documents and the lengthy cohabitation of Frank Rosenmeyer and Mary Gulka, it is contended, give rise to a presumption of marriage. It would seem to me there were at least two means by which Mrs. Porteous might have proven the marriage of her mother to Mr. Rosenmeyer. These days it is normally convenient to prove births, deaths and marriages by production of a certificate. Mrs. Porteous might simply have produced the certificate which the person solemnizing the marriage ordinarily gives to those being married; alternatively she might have produced an authenticated extract from the marriage records of the State of Minnesota. Failure to produce evidence from the register of marriages in respect of a marriage of known date and place may not be fatal to Mrs. Porteous’ case (Re Taplin, Watson v. Tate[2]; Taylor v. Taylor et al.[3]), but in the absence of a certificate or satisfactory explanation for non-production the reference to a marriage contained in a delayed certificate of birth can carry little or no weight. An alternative manner of making out her case would have been to adduce facts supportive of a presumptive marriage at the critical time, i.e., prior to her birth. If persons live together as man and wife for such length of time and in

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such circumstances as to have acquired local repute as married a presumption that they are legally married may arise, which can only be displaced by cogent evidence to the contrary. There was some evidence that Mrs. Porteous’ mother and Mr. Rosenmeyer enjoyed the reputation in the community of being married persons but the formidable difficulty facing Mrs. Porteous is that there is no evidence of cohabitation prior to 1928 and therefore no evidence from which it could properly be inferred that a marriage was celebrated prior to her birth in February 1927. This is analogous to the situation which arose in Re Haynes; Haynes v. Carter[4]. A and B lived together with two children from about 1878 to 1893 and were generally reputed to be husband and wife. The elder child, a daughter, was born in 1873 and the younger child, a son, in 1879. It was held that A and B had been husband and wife but that the son was their only legitimate child.

By statute, legitimation by subsequent marriage of the parents of a child not born in wedlock has been possible in Saskatchewan since 1920, The Legitimation Act, 1919-20 (Sask.), c. 83, providing that where the parents of any child born out of lawful wedlock intermarry after the birth of the child, the child shall for all purposes be deemed to be legitimate from the time of birth. There is here no evidence of celebration of a marriage after the birth of Mrs. Porteous as would allow her to call in aid The Legitimation Act and in my view at common law a presumptive marriage cannot have retroactive effect to legitimize a birth antedating cohabitation of the parents.

If one then considers the evidence taken as a whole, it is apparent that the evidence adverse to Mrs. Porteous’ contentions is substantial, indeed overwhelming if the statement of claim and the settlement agreement to which I will

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advert are considered. The following documents militate against the conclusion that Frank Rosenmeyer married Mary Gulka: (i) a transfer of land dated February 6, 1929, in which Mr. Rosenmeyer swore, in the affidavit under The Homestead Act, he had no wife; (ii) a draft income tax return completed by Mr. Rosenmeyer in 1939 in which he gave his marital status as “single” and claimed as dependents “Mary Sherry, Housekeeper; Delia Sherry age 20, and Frances Sherry age 13”; (iii) registration in December 1944 of the birth of “Adele Gulka” by her mother, in which the informant signed “Mary Gulka”; (iv) a transfer of land dated September 29, 1947, in which Mr. Rosenmeyer swore he had no wife; (v) registration of the death in July 1953 of “Mary Gulka”, but the probative value of this document is much diminished by alterations made at some time by some unidentified person to substitute the name of Mary Gulka for that of Mary Rosenmeyer.

A statement of claim and settlement agreement formed the cornerstone of the rejection of Mrs. Porteous’ appeal by the Court of Appeal of Saskatchewan. On April 25, 1946, a statement of claim was filed in the Judicial District of Yorkton in which Mary Gulka sued Frank Rosenmeyer, claiming she had been hired by him as housekeeper during the preceding 18 years at a monthly wage of $40, which he had failed and neglected to pay. In June of the same year an agreement was executed in which Mr. Rosenmeyer agreed to pay Mrs. Gulka the sum of $3,000 in settlement of her claim. Paragraph 3 of that agreement provided that should Mary Gulka be employed by Frank Rosenmeyer at any time thereafter then the employment would be on the terms and conditions to which the parties agreed at the time of hiring. The solicitor who issued the statement of claim and prepared the settlement agreement testified at the trial of the issue. He was the attesting witness to the agreement and swore in the affidavit of execution that he saw Mary Gulka, sometimes known as Mary Sharey, and Frank Rosenmeyer, who

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were known to him, execute the agreement. The trial judge admitted the statement of claim and agreement in evidence but held, on the principle they constituted a declaration respecting pedigree or family history not made ante litem motam, they could be used only for the limited purpose of establishing the fact of the proceedings being taken. The Court of Appeal concluded the judge erred in holding the statement of claim and agreement were inadmissible except for the limited purpose. First, the statement of claim. Pleadings are admissible, generally speaking, in subsequent proceedings, to prove the institution of the suit and the facts in issue between the parties but not the truth of the facts stated. Phipson on Evidence, 11th ed., art. 1422. In Lyell v. Kennedy[5], a case in which pedigree was an issue, a notarial protest and the record of proceedings in an action on a bill of exchange, the action not involving any question of pedigree, were held admissible. In my opinion in the case at bar the statement of claim was admissible to prove that in 1946 an issue was raised by Mary Gulka whereby she claimed 18 years’ wages as a housekeeper for Mr. Rosenmeyer. It is not easy to reconcile that claim with the claim in the present proceedings that during those years Mary Gulka was the wife of Mr. Rosenmeyer. Second, the settlement agreement. As Lord Mansfield said in the Berkeley Peerage Case[6], at p. 415: “In matters of pedigree, it being impossible to prove by living witnesses the relationships of past generations, the declarations of deceased members of the family are admitted”. The law recognizes, as one of the rather numerous exceptions to the hearsay rule, the hearsay of deceased relatives in proof of matters of pedigree. Family history can ordinarily best be obtained from the spoken or written words of those alive at an earlier time and strict enforcement of the hearsay rule might well preclude the admission of the best or only evidence on the point. Hence the exception, expressed in this Court by Rinfret J., as he then was, in these

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words in Pejepscot Paper Co. v. Farren[7], at p. 390:

Declarations as to pedigree made by deceased persons are receivable to establish the particular issue, provided they were made ante litem motam (i.e., “before the commencement of any controversy, actual or legal, upon the same point”) and provided the deceased are proved aliunde to be members of the family by extrinsic evidence.

and at p. 392:

The phrase ante litem motam might be capable of misconstruction. It contemplates a time anterior to the commencement of any actual controversy upon the point at issue.

The trial judge in the present case ruled, in effect, that the statement of claim and settlement agreement concerned matters of pedigree but were inadmissible as arising out of controversy and therefore not ante litem motam. The Court of Appeal held that neither the statement of claim nor the agreement could be construed as a declaration as to pedigree or marital status. With great respect, I am of the opinion both Courts were in error. It is not easy to define what is meant by a matter of pedigree. In 15 Halsbury, 3rd ed., vol. 15, p. 310, it is said that to constitute a “matter of pedigree” there must be a genealogical question in issue in the proceedings. The issue in the present case is such a question. It is also said the declarations must relate either directly thereto or at all events to some incident of family history required for the proof of such issue. The statement of claim and agreement do not relate directly to the lineage of Mrs. Porteous, they relate to a claim for wages, but they were not tendered in relation to a wage claim. They were tendered in proof of

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the fact Mary Gulka was employee, and not wife, of Frank Rosenmeyer. They bear directly on the issue of the pedigree of Mrs. Porteous. The Court of Appeal found them to be virtually decisive on that issue. In my opinion they are hearsay respecting pedigree or family history. Now, as to the point taken in the trial Court that the declarations were not ante litem motam. The question here is whether in 1946, when the statement of claim and agreement appeared, there was “actual controversy upon the point at issue” in the present case. I think not. In 1946 there was no “lis mota” affecting the pedigree of Mrs. Porteous or relating to the marital status of her mother. There was nothing to incline Mrs. Gulka to falsehood in casting herself in the role of housekeeper and employee, and every reason for Mr. Rosenmeyer to plead marriage in defence of the claim if the facts had supported such a plea. No such defence was raised. I find nothing in the circumstances surrounding the agreement to cast doubt on the trustworthiness or efficacy of that document in negation of a married status and would, therefore, hold it to be a declaration as to pedigree and admissible as such without limitation. When the statement of claim and agreement are placed on the scale with the other evidence against the marriage, the weight is overpowering. I therefore arrive at the same conclusion as the Court of Appeal for Saskatchewan but by a somewhat different route. I do not find it necessary in the circumstances to deal with the submission that Mary Gulka lacked capacity to remarry.

I would dismiss the appeal with the costs of all parties payable out of the estate.

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Appeal dismissed.

Solicitors for the plaintiff, appellant: Burke-Robertson, Chadwick & Ritchie, Ottawa.

Solicitors for the defendants, respondents: Balfour, MacLeod, Moss, Laschuk, Kyle, Vancise & Cameron, Regina.