Mulhern v Clery

• Jurisdiction: Ireland
• Judgment Date: 02 May 1930
• Date: 02 May 1930
• Court: Supreme Court (Irish Free State)

Mulhern v. Clery

ELLEN BARRY, Deceased; MARY MULHERN and Others

and

HELEN CLERY and Others (1)

Supreme Court

Marriage - Evidence sufficient to establish - Presumptions - Cohabitation - Family repute - Statements of parent bastardising children - Admissions of illegitimacy - Admissibility - Registers of baptisms - Whether public documents - Duty to keep - Extent of admissibility - Certificates of entries - 14 & 15 Vict. c. 99, sect. 14.

Upon an inquiry for the next-of-kin of a deceased intestate, in the course of the administration of her estate, C. M. R. claimed to be the daughter of a sister of the intestate's mother, and M. H. claimed to be the daughter of a brother of the intestate's mother. The claim of C. M. R. and M. H. was disputed on the ground that the parents, P. H. and M. S., of the intestate's mother and of her alleged sister and brother were not married, and that, therefore, their children were strangers in blood to one another. No record or entry of a marriage between P. H. and M. S. could be found. Evidence was given that P. H. and M. S. had cohabited for many years in a cottage on P. H.'s estate, during which time five children were born; that then P. H. had built a mansion-house on the estate, and he had gone to reside there with the five children, M. S. remaining in the cottage; and that, subsequently, a sixth child was born. P. H. called these children by his own name. Evidence of family repute was given on both sides, tending, on the one hand, to show that P. H. and M. S. were married, and, on the other hand, that they were not. There were tendered in evidence the will and codicils of P. H., in which he referred to M. S. by that name, or as"M. S., widow," and to the children as his "reputed children by the aforesaid M.S."; and certain declarations containing admissions of illegitimacy. There were also tendered in evidence, on the one side, certificates of entries in registers of baptisms of the baptism of the children of P. H. and M. S.; and, on the other side, the original registers, in which the entry of each baptism in question was prefixed by an asterisk or star, with the addition, in one case, of the words, "7a concubina," while a note at the beginning of the register ran: "N.B. Stella praefigitur nominibus infantium illegitimorum."

Held, that the will and codicils of P. H. were admissible in evidence, as the rule excluding evidence of a parent tending to bastardise his children applies only where the fact of a marriage has been established, and does not extend to a case where the question is whether there has been a marriage or not.

Held also, that it had not been proved that the statements in the registers of baptisms as to illegitimacy were made in performance of any duty, and they were not admissible in evidence.

Held also (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), that the maxim, semper presumitur pro matrimonio, applies only in favour of the validity of a marriage the fact of which has been established, and not when the existence of a marriage is in question.

Held (FitzGibbon and Murnaghan JJ.), that a declaration containing a statement as to her own illegitimacy, made by the intestate's mother for the purpose of passing a succession duty account, was admissible in evidence.

Held, further (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), affirming Meredith J., that the evidence relied on by C. M. R. and M. H. was not sufficient to support a presumption of marriage between P. H. and M. S., and the claim of C. M. R. and M. H. to be included in the next-of-kin of the deceased intestate failed.

Appeal by the defendant, Coralie Maud Rumley, from the portion of the order of Meredith J., dated 26th January, 1928, which restricted the next-of-kin of Ellen Barry, deceased, to the next-of-kin on her father's side, the defendant also applying to have the said order altered so as to include among the next-of-kin of the said Ellen Barry her alleged next-of-kin on her mother's side as well as her next-of-kin on her father's side. The defendant further applied for special leave to make, as an alternative case on behalf of the alleged next-of-kin of the said Ellen Barry on her mother's side, a case different from and inconsistent with the case made on their behalf before Meredith J.

The plaintiffs served notice of their intention to apply for liberty to produce and use, by way of further evidence, certain affidavits exhibiting documents which they had found subsequent to the service of the notice of appeal.

The facts of the case have been summarised in the head-note, and, together with the material portions of the documents and evidence in the case, are sufficiently stated in the judgments of the Court.

Kennedy C.J. :—

This is an appeal from an order of Meredith J. made in this action, which is an action for the administration of the personal estate of Ellen Barry, deceased, constituted in the High Court, under the provisions of sect. 55 of the Act 34 Vict. c. 22. Ellen Barry died a spinster, and intestate, on the 26th July, 1925, and letters of administration of her personal estate were granted to the defendant, Mrs. Helen Clery (formerly Helen Barry), as a lawful cousin german and one of her next-of-kin. The four plaintiffs, Mrs. Mulhern, Mrs. Lane, Mrs. O'Keeffe, and Mrs. Flood, are the executrices and legal personal representatives of one Cecilia Barry, also a cousin german of the intestate, who survived her, but has since died. The defendants, Coralie Maud Rumley and Margaret Harding, claim to be also of the next-of-kin of the intestate. The only question which arose on the administration of the estate of the intestate was the claim of these two ladies to be admitted as next-of-kin upon the distribution of the estate. Accordingly, the learned Judge made the usual primary decree for administration, but put a stay upon

all proceedings under the decree, except the inquiry as to who were the next-of-kin, according to the statutes for the distribution of intestates' estates, of Ellen Barry, deceased, living at the time of her death; whether any of them had since died; and who are the legal personal representatives of any so dying. The Judge ordered that this inquiry be made in Court, and fixed a day for that purpose. The inquiry was in due course made by the learned Judge himself, when, after examination of the evidence, documentary and oral, he made an order declaring that the next-of-kin of the intestate living at the time of her death were the defendant, Mrs. Helen Clery (formerly Barry), Cecilia Barry since deceased (whose legal personal representatives are the plaintiffs), and Henrietta Barry (also since deceased), the daughters of Michael Barry, who was a brother of Thomas Barry, the father of the intestate. He rejected the claims of the defendants, Mrs. Coralie Maud Rumley and Miss Margaret Harding, who both claimed to be next-of-kin of the intestate on her mother's side. This appeal has been taken by Mrs. Rumley against so much of the order as restricts the next-of-kin of the intestate to the next-of-kin on her father's side. and she seeks to have the order altered by including among the next-of-kin of the intestate her next-of-kin on her mother's side, of whom the appellant claims to be one. The only question in the case is the legitimacy of the intestate's mother, a question which is not free from difficulty in the circumstances and time of her birth, but, in my reluctant opinion, free from ultimate doubt.

The intestate, Ellen Barry, had reached an advanced age when she died, in the year 1925. She was the only surviving child of the marriage of Thomas Barry, an attorney practising in the City of Cork, and Ellen Barry, formerly Ellen Harding, his wife. The other children of the marriage (which took place in the year 1840) were two sons, who, both unmarried and intestate, predeceased the intestate, Ellen.

The pedigree upon which the appellant relies commences with one Philip Harding, the father, and one Margaret Sweeny, or Swyney (previously Regan), the mother of six children, viz.:—

• (1) Ellen Harding, who was baptised on the 12th May, 1820. She died in the year 1897. She married Thomas Barry in the year 1840, and Ellen Barry, the intestate, was their lawful daughter. Thomas Barry died in the year 1878.

• (2) Henry Harding, who was baptised on the 2nd July, 1822. He died on the 2nd January, 1876, having married but leaving no lawful issue surviving him.

• (3) Edward Harding, who was baptised on the 2nd March, 1825. He died in the year 1865, without having married.

• (4) Anne Harding, who was baptised on the 5th January, 1828. She died on the 13th November, 1896. She, in the year 1852, married one John M'Carthy, who died on the 12th June, 1899. They had five children, of whom four have died without having married, and the fifth is Coralie Maude, born on the 9th August, 1858, now Mrs. Coralie Maude Rumley, the appellant.

• (5) Francis Harding, who was baptised on the 29th August, 1830. He died in the year 1866, a bachelor.

• (6) William Harding, who was baptised on the 29th January, 1838. He died in the year 1877. He married one Johanna Gallagher in the year 1867. There were two daughters, children of this marriage, of whom one died in 1911. The other is the defendant, Margaret Harding, born in the year 1868, who claims to be one of the next-of-kin of the intestate.

Philip Harding died in the year 1841, and Margaret Sweeny, or Swyney, died in the year 1867. There are, therefore, only two-living descendants of Philip Harding and Margaret Sweeney, namely, the defendants, Coralie Maude Rumley and Margaret Harding, who would, therefore, be the only next-of-kin of the intestate on the mother's side, if they could establish that Philip Harding and Margaret Sweeney were lawful man and wife and that Ellen Harding was their lawful daughter. That is the onus which they have undertaken by their intervention in these...