Montano v. Sanchez, [1964] SCR 317

Supreme Court of Canada

Montano v. Sanchez, [1964] S.C.R. 317

Date: 1964-03-23

Elizabeth MacDonald Wardrope Montano (Respondent) Appellant;

and

Maria Guadalupe Wardrope Sanchez (Respondent) Respondent;

and

William Hugh Masson Wardrope, Trustee Under the last Will and Testament of John Duff MacDonald, deceased (Applicant) Respondent.

1963: October 15, 16; 1964: March 23.

Present: Taschereau C.J. and Cartwright, Judson, Ritchie and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Conflict of laws—Wills—Personalty bequeathed under will of Ontario testator to “issue” of grandson—Grandson and his two children domiciled in foreign jurisdiction—One child born out of wedlock—Status of child—Whether entitled to share in estate.

Under the will of an Ontario testator certain personalty was bequeathed to the “issue” of a grandson. The grandson who was domiciled in the State of Michoacan in the Republic of Mexico died intestate and was survived by two daughters. The second daughter was born out of wedlock on December 12, 1937. Her parents were married in a religious ceremony on January 22, 1953, although they were never married by the civil ceremony which was a prerequisite to legitimation by subsequent marriage under the Civil Code of Mexico. The daughter obtained an order from the appropriate Court in Michoacan declaring that for all legal effects she was the daughter of the testator’s grandson having the right to bear his name and to receive a portion of his estate and a living allowance as prescribed by law. The trustees of the testator’s estate sought the advice of the Supreme Court of Ontario as to whether the daughter was entitled to share in that estate. The trial judge’s decision that she was not so entitled was reversed by the Court of Appeal.

Held: The appeal should be dismissed.

The Court of Appeal was not precluded from looking behind the name which the foreign law attached to the sum total of the capacities and obligations accorded to a person in the position of the daughter, so as to determine whether these capacities and obligations would in fact be recognized in Ontario as fulfilling the requirements necessary to the status of a legitimate child in that province. The daughter, the sum total of whose capacities and obligations under the law of the State of Michoacan included all those of a child born in wedlock in Ontario, had the status of a legitimate child in that province for the purpose here in question and the fact that under the law of the domicile some social limitations might attach to her position in

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Mexico, and that her status in that country was therefore described as “illegitimate”, could have no effect on the standards required in order to qualify as a legitimate child for the purpose of benefiting as one of “the issue” of the grandson of an Ontario testator.

Re Andros, Andros v. Andros (1883), 24 Ch. D. 637; Udny v. Udny (1869), L.R. 1 Sc. & Div. 441; Re Wright’s Will Trusts (1856), 2 K.& J. 595; Re Goodman’s Trusts (1881), 17 Ch. D. 266; Re Grove, Vaucher v. Treasury Solicitor (1888), 40 Ch. D. 216; Re Luck’s Settlement Trusts, [1940] 1 Ch. D. 864; Re Donald, Baldwin v. Mooney, [1929] S.C.R. 306; Re Gage, Ketterer et al. v. Griffith et al., [1962] S.C.R. 241, referred to; Atkinson v. Anderson (1882), 21 Ch. D. 100, distinguished.

APPEAL from a judgment of the Court of Appeal for Ontario[1], setting aside a judgment of Landreville J. Appeal dismissed.

J.D. Arnup, Q.C., for the appellant.

Colin D. Gibson, for the respondent, Maria Guadalupe Wardrope Sanchez.

F.S. Weatherston, Q.C., for the respondent, William Hugh Masson Wardrope.

The judgment of the Court was delivered by

RITCHIE J.:—This is an appeal from a judgment of the Court of Appeal for Ontario¹ which set aside the judgment of Landreville J. and gave an affirmative answer to the following question upon which the opinion, advice and direction of the Court had been sought at the instance of the trustees of the estate of the late John Duff MacDonald:

Is Maria Guadalupe Wardrope Sanchez entitled to share in the estate of John Duff MacDonald Wardrope?

John Duff MacDonald was domiciled at Hamilton, Ontario, at the date of his death on March 10, 1901, and by his last will provided inter alia that:

As to the Capital of the Trust fund (including any accretions thereto) my Will is that if my daughter Sarah remain unmarried or if she marry and die without issue then on her death and subject to the rights of her sisters and their children in the income one third of the trust fund shall on the youngest of my surviving grandchildren attaining twenty one years be divided in equal shares among all my grandchildren living at the period of division and the issue of any deceased “grandchild such issue taking the share their parent would have taken if alive at such division and as to the remainder of the trust fund the same shall as it becomes freed from the rights of my daughters in the income of the whole or part thereof be

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divided in equal shares among all my grandchildren living at the period or periods of such division and the issue then living of any grandchild such issue taking the share their parent would have taken if then alive, provided always that if any grandchild living at the period or periods of division of the remainder of the trust fund shall die before attaining twenty-five years of age he or she shall not be entitled to any of such capital but the same shall go in equal shares to those who attain twenty-five years and the children of any deceased grandchild whether dying before or after the period of division.

The testator’s grandson, John MacDonald Wardrope, hereinafter referred to as John Wardrope, who died intestate and domiciled in the State of Michoacan in the Republic of Mexico before the death of the last surviving life tenant under the terms of the said will, left two surviving daughters, one of whom, Elizabeth Lucia MacDonald Wardrope was born on April 3, 1929, the issue of his lawful marriage with Lucia Montano Bosque, and the other of whom, Maria Sanchez, was born on December 12, 1937, the child of his union with Gudelia Sanchez, to whom he was not married.

It appears to be agreed by all concerned that John Wardrope was domiciled in Mexico at the date of the birth of his second daughter and at the time when he acknowledged her to be his child. Nor is it questioned that being still domiciled in Mexico, he married Gudelia Sanchez in a religious ceremony on January 22, 1953, although they were never married by the civil ceremony which is a prerequisite to legitimation by subsequent marriage under the Civil Code of Mexico.

The sole question to be determined is whether Maria Sanchez is one of the “issue of any deceased grandchild” of the testator so as to be entitled under the law of Ontario to share in that portion of the personal estate of the testator now available for distribution among such issue.

It is conceded that in construing an Ontario will the word “issue” is to be treated as meaning “legitimate children”, and it is accordingly first necessary to determine the status of any child claiming to be entitled under such a will.

Some of the difficulties to which the present circumstances give rise were expressed by Kay J. in Re Andros, Andros v. Andros[2] at p. 639 in the following language:

A bequest in an English will to the children of A. means to his legitimate children, but the rule of construction goes no further. The question

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remains who are his legitimate children. That certainly is not a question of construction of the will. It is a question of status. By what law is that status to be determined. That is a question of law. Does that comity of nations which we call international law apply to the case or not? That may be a matter for consideration, but I do not see how the construction of the will has anything to do with it. The matter may be put in another way. What did the testator intend by this gift? That is answered by the rule of construction. He intended A.’s legitimate children. If you ask the further question, Did he intend his children who would be legitimate according to English law or his actual legitimate children? How can the rule of construction answer that?

Before the enactment of the Legitimacy Act, 1926, 16 & 17 Geo. 5 (U.K.), c. 60, it was well established in England that in the case of a child born out of wedlock whose father was domiciled in that country at the time of its birth, the indelible taint of bastardy could not be removed, but at least since the early 1880’s, it has been equally well recognized in the English Courts that if the laws of the country in which the putative father was domiciled at the date of the birth of an illegitimate child provide for legitimation by a subsequent marriage of the parents, then such a child would be recognized as being legitimate for the purpose of inheriting personal property in England if the father, being still domiciled in the foreign country, complied with the condition of marrying the mother. In this regard I refer to Udny v. Udny[3]; Re Wright’s Will Trusts[4]; Re Goodman’s Trusts[5]; Re Grove, Vaucher v. Treasury Solicitor[6] and other cases which are reviewed in the reasons for judgment delivered by MacKay J.A. on behalf of the Court of Appeal for Ontario.

The principle underlying many of these decisions is to the effect that recognition of legitimation by subsequent marriage is predicated upon the domicile of the father at the date of birth having given to the child a capacity of being made legitimate by such marriage, (see Re Grove, supra, per Cotton L.J. at p. 233), and it appears from the decision of the majority of the Court of Appeal in England in Re Luck’s Settlement Trusts[7], that that Court would have extended this principle to include legitimation by recognition if the father in that case had been domiciled in the foreign jurisdiction at the date of the child’s birth. We are not concerned in the present case with the somewhat

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vexed questions which have been raised by legal writers as to the soundness of the proposition that subsequent legitimation should be made dependent for its validity upon the law of the domicile of the father at the date of the birth because, as has been indicated, it is conceded that John Wardrope was domiciled in Mexico at all material times, and I am of opinion that under the circumstances of the present case, the status of Maria Sanchez is to be determined according to the law of the State of Michoacan. The question to be decided is whether that status is such as to enable Maria Sanchez to participate in the estate of the late John Duff MacDonald as one of the “issue” of his grandson.

In the case of Re Donald, Baldwin v. Mooney[8], this Court declined to apply the cases dealing with legitimation by subsequent marriage to the case of a foreign adoption and considered that the question was not one of status but rather whether the child in question was a child within the meaning of the will which the Court was there considering. “Adoption” appears to me to differ from “legitimation by recognition” in the sense that the latter can only apply to an illegitimate natural child of the father who recognizes it whereas the former may apply to a legitimate orphan who is adopted by strangers in blood. This would, in my opinion, provide a distinction between the case of Re Donald, supra, and the present case, but in any event, the Donald case is, in my view, to be regarded as subject to the limitations explained by Judson J. in Re Gage; Ketterer et al. v. Griffith et al.[9] at pp. 249 and 250, to which reference is made in the reasons for judgment of MacKay J.A.

It is to be noted that after her father’s death, Maria Sanchez obtained an order from the appropriate Court in the State of Michoacan which read, in part, as follows:

It is hereby declared for all legal effects that Maria Guadalupe Wardrope Sanchez is the daughter of John Duff MacDonald Wardrope having the right to bear his name and to receive a portion of the estate and a living allowance as prescribed by law.

The Courts in the present case have been assisted in determining the law of the State of Michoacan by the evidence of Tomas Sanchez Baylon, a lawyer who practised

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for the last ten years in that state and a substantial part of whose evidence is reproduced in the reasons for judgment rendered on behalf of the Court of Appeal of Ontario by MacKay J.A. I confine myself to reciting the following excerpts from Mr. Baylon’s evidence:

Q. May I take it that Miss Guadalupe Wardrope Sanchez has the status of legitimacy in the State of Michoacan with respect to inheriting property? A. Yes.

Q. May I take it also that Guadalupe Sanchez Wardrope is lawful issue and has the right of inheriting property by law of the State of Michoacan? A. Yes.

Q. I gather then that Sanchez has the status of legitimacy with respect to inheritance of property within an estate? A. Yes.

Q. In no way then, the law considers it otherwise with respect to inheritance? A. In no way.

Q. Then I suggest that she has a status of legitimacy for all purposes? A. She does.

At a later stage Mr. Baylon was asked with respect to the Civil Code of Michoacan:

Q. I ask whether the Code provides anywhere that children whose paternity is established without marriage are to be treated as born in wedlock? A. I think this question requires a long explained answer. The Code does not have an article which specifies clearly that children born out of wedlock and legitimate children are to be treated equally, but that is precisely one of the motives of Mexican law, that children born in and out of wedlock are treated as children only, without referring to legitimacy or illegitimacy in the whole Code. Besides, the Legislature contain very clear reasonings to that effect.

These questions and answers must be read together with the following:

Q. In view of the judgment Exhibit No. 1, would you describe Miss Sanchez as legitimate or illegitimate? A. We consider her as illegitimate according to the Civil Code of Mexico although she is a legitimate daughter by canonical law.

Q. Is the canonical law part of the law of the State of Michoacan? A. No.

Q. Once paternity has been established, does that confer on Miss Sanchez as the status of legitimacy? A. No, but we must have in mind that legitimacy does not affect the rights of sons or daughters toward the parents, as they are the same for legitimate or illegitimate sons and daughters.

In the course of his evidence Mr. Baylon quoted from the following articles of the Civil Code of Michoacan:

ART. 318—The filiation of children born out of wedlock is derived, with respect to the mother, from the mere fact of birth. With respect to

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the father, it is established only by acknowledgement or by a judgment declaring his paternity.

ART. 312—The subsequent marriage of the parents causes the child, had before such marriage, to be considered as born in wedlock.

ART. 329—The husband may acknowledge a child born before his marriage, or during the same, but shall not have the right to take it to live in the marital home, except with the express consent of the wife.

Being questioned on these articles, Mr. Baylon said:

Q. I put it to you that the results of the subsequent marriage referred to in Article 312 of the Code, of the parents of a child of theirs which was previously born, is to make that child for all purposes the legitimate child of those parents? A. Yes.

Q. I put it to you, that there is a distinction in the Mexican Law between the child whose parents so marry and the child who establishes as a fact that a certain man was her father? A. There is a distinction, but I want to make clear that the purpose and spirit of the Law in this case is only to obligate parents to marry and certainly not to deprive the sons of their rights.

Q. Now I want to draw your attention to Article 329. Does it not impose a limitation upon rights of the child as compared with rights of a legitimate child, that is, a child born of the union of married people. A. No, there is no limitation on his or her rights. About Art. 329, its purpose is to establish harmony in a marriage whose child is to be born and certainly not to establish a limitation whatsoever on the child’s rights.

Q. Does Art. 329 not prevent a child, whose paternity has been established by acknowledgement of the father, from living with the father if he has a living wife who objects? A. It does not prevent the child from having its rights, but merely prevents the father from taking the child to live with him.

Mr. Baylon also said of Maria Sanchez: “She cannot be called legitimate because her parents were not legally married they were just married by the church.”

From the whole of Mr. Baylon’s evidence, I conclude that all the rights and capacities and obligations requisite for the purpose of attaining the status of a legitimate child in the Province of Ontario are enjoyed by Maria Sanchez by virtue of the law of Michoacan.

There do, however, appear to be certain limitations having to do with parental control and with the father’s inability to bring a child born out of wedlock into his home without the consent of his wife, which afford a distinction recognized in Mexico and giving rise to the differentiation there made between a natural child who has been recognized by its parents and is still characterized as “illegitimate” and a child who is characterized as “legitimate” by reason of its

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parents having been married in a civil ceremony after its birth.

In the course of his most persuasive argument, counsel for the appellant submitted that the rights which are given to Maria Sanchez in Mexico are not accorded to her by virtue of her having attained the status of “legitimate child” in that jurisdiction, and that unless the Court of Appeal of Ontario could have found (which on the evidence it could not do) that under the law of Mexico she is a legitimate child of her father, it was bound to find that under that law she was illegitimate and therefore under the Ontario law could not inherit.

In support of this proposition reliance was placed on the decision of Hall V.C. in Atkinson v. Anderson[10], where it was held that the recognized natural children of an English native domiciled in Rome although capable of taking property by succession according to Roman law were to be regarded as “strangers in blood” to their natural father for the purpose of construing s. 10 of the Succession Duty Act, 1853.

This case had to do with the rate of tax to be levied on the proceeds of the sale of English real estate which were to be divided under the terms of a valid English will between the testator’s “four natural sons” who were named in the will, and the sole question was whether these sons were “lineal issue of the testator” and as such liable to pay duty at the rate of one per cent only or “strangers in blood” to him and as such liable to pay at the rate of ten per cent.

This decision appears to me to be an isolated case turning on the construction of the statute in question, and it does not, in my view, stand as an authority for the proposition that the Court of Appeal of Ontario is precluded from looking behind the name which the foreign law attaches to the sum total of the capacities and obligations accorded to a person in the position of Maria Sanchez, so as to determine whether these capacities and obligations would in fact be recognized in the Province of Ontario as fulfilling the requirements necessary to the status of a legitimate child in that province.

In my opinion the title of “legitimacy” or “illegitimacy” when attached to the status of an individual in any juris-

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diction reflects the capacity or lack of capacity which the law of that jurisdiction recognizes in the case of the individual concerned. Just as “legitimate” when used in relation to a child is only a symbol employed to designate the legal rights and obligations which flow from being born in wedlock, so the word “illegitimate” is used to denote the limitations of capacity which attach to being born out of wedlock, and the word “legitimitation” is descriptive of the legal effects incident to being relieved of those limitations.

Maria Sanchez, the sum total of whose capacities and obligations under the law of the State of Michoacan include all those of a child born in wedlock in Ontario, in my opinion has the status of a legitimate child in that province for the purpose here in question and the fact that some social limitations may attach to her position in Mexico, and that her status in that country is therefore described as “illegitimate”, can, in my view have no effect on the standards required in order to qualify as a legitimate child for the purpose of benefiting as one of “the issue” of the grandson of an Ontario testator.

For these reasons, as well as for those stated in the very full judgment delivered by MacKay J.A., I would dismiss this appeal with costs of all parties to be paid out of the trust fund established under the will of the late John Duff MacDonald. The costs of the trustee to be taxed on a solicitor-client basis.

Appeal dismissed.

Solicitor for the appellant: Grant W. Howell, Hamilton.

Solicitor for the respondent, Maria Guadalupe Wardrope Sanchez: Colin D. Gibson, Hamilton.

Solicitors for the respondent, William Hugh Masson Wardrope: Griffin, Jones, Weatherston, Bowlby, Malcolm & Stringer, Soule & Soule, Hamilton.