In Re Clement Estate / Gardner et al. v. Gardner et al.

In Re Clement Estate / Gardner et al. v. Gardner et al.

Section 75 of the Child Welfare Act 1958 could not operate to alter the legal status of a person who died in 1936 and therefore could not make the appellants the 'issue' of the life tenant; at the date of the adopted child's death the Adoption Act 1927 did not make her the child of the adopting parent for the purposes of third‑party wills, so the appellants do not qualify under the will and the appeal must be dismissed.

Citation
[1962] SCR 235
Parties
Appellants/applicants: John Bruce Gardner and Russell Gordon Gardner; Respondents: John Bruce Gardner; Henry Louis Hagey; The Canada Permanent Trust Company, The Executors of Maud Clement Gordon; Respondents: Maude Bixel; Clara Montgomery; Lillian Messecar; Daniel J. Montgomery; Respondents: Executors of the estate of Joseph Kendall Clement
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 February 1962
Procedural Posture
Appeal / Hearing in the Supreme Court of Canada on Appeal From the Court of Appeal for Ontario (motion for Construction of a Will)
Outcome
Appeal dismissed
Legal Topics
Adoption Effect on Succession, Construction of Wills, Retroactivity of Statutes, Statutory Interpretation
Source Language
English
Estates Wills Family Law Adoption Law Adoption Effect on Succession Construction of Wills Retroactivity of Statutes Statutory Interpretation

Case Brief

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Parties

John Bruce Gardner and Russell Gordon Gardner

Appellants/applicants

John Bruce Gardner; Henry Louis Hagey; The Canada Permanent Trust Company, The Executors of Maud Clement Gordon

Respondents

Maude Bixel; Clara Montgomery; Lillian Messecar; Daniel J. Montgomery

Respondents

Executors of the estate of Joseph Kendall Clement

Respondents

Procedural Posture

Appeal / Hearing in the Supreme Court of Canada on Appeal From the Court of Appeal for Ontario (motion for Construction of a Will)

Legal Issues

  1. 1 Whether children of an adopted child who died before the Child Welfare Act 1958 came into force became 'issue' of the life tenant by operation of ss.74-75 of the Act
  2. 2 Whether s.75 of the Child Welfare Act 1958 applies to persons adopted and deceased before its commencement and can confer posthumous status
  3. 3 Whether the word 'issue' in the will includes adopted descendants or is restricted to children born of the body

Ratio Decidendi

Section 75 of the Child Welfare Act 1958 could not operate to alter the legal status of a person who died in 1936 and therefore could not make the appellants the 'issue' of the life tenant; at the date of the adopted child's death the Adoption Act 1927 did not make her the child of the adopting parent for the purposes of third‑party wills, so the appellants do not qualify under the will and the appeal must be dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs