Porteous v. Dorn et al.

Porteous v. Dorn et al.

The statement of claim and settlement agreement were hearsay declarations respecting pedigree or family history but were admissible because they were made ante litem motam and bore directly on whether the mother was employee or wife; presumptive marriage cannot legitimize a birth antedating cohabitation and, on the total evidence (including the 1946 documents and contemporaneous declarations by the deceased), the appellant failed to prove lawful daughter status; appeal dismissed.

Citation
[1975] 2 SCR 37
Parties
Appellant/plaintiff: Frances Porteous; Respondents/defendants: Ida Dorn et al.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
29 April 1974
Procedural Posture
Appeal Concerning Intestacy and Pedigree / Final Appeal to Supreme Court of Canada From Court of Appeal for Saskatchewan
Outcome
Appeal dismissed
Legal Topics
Hearsay Exception for Pedigree, Admissibility of Pleadings and Settlement Agreements, Presumptive Marriage, Legitimation by Subsequent Marriage, Proof of Marriage
Source Language
English
Evidence Family Law Succession/intestacy Hearsay Exception for Pedigree Admissibility of Pleadings and Settlement Agreements Presumptive Marriage Legitimation by Subsequent Marriage Proof of Marriage

Case Brief

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Parties

Frances Porteous

Appellant/plaintiff

Ida Dorn et al.

Respondents/defendants

Procedural Posture

Appeal Concerning Intestacy and Pedigree / Final Appeal to Supreme Court of Canada From Court of Appeal for Saskatchewan

Legal Issues

  1. 1 Whether appellant was the lawful daughter of the deceased (pedigree issue)
  2. 2 Whether the 1946 statement of claim and the June 1946 settlement agreement were admissible as declarations respecting pedigree under the ante litem motam exception to hearsay
  3. 3 Whether presumptive marriage or subsequent legitimation could retroactively legitimize a child born before cohabitation or marriage

Ratio Decidendi

The statement of claim and settlement agreement were hearsay declarations respecting pedigree or family history but were admissible because they were made ante litem motam and bore directly on whether the mother was employee or wife; presumptive marriage cannot legitimize a birth antedating cohabitation and, on the total evidence (including the 1946 documents and contemporaneous declarations by the deceased), the appellant failed to prove lawful daughter status; appeal dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs of all parties payable out of the estate