BETWEEN : THE PUBLIC TRUSTEE as Administrator of the Estate of ROBERT ARTHUR LESWELL (DEC)

RUSSELL DAVID PHILLIPS as Executor of the Estate of BEATRICE LILY MCGRATH (DEC)

THE PUBLIC TRUSTEE as Executor of the Estate of NICOLA RIGGIO the Executor of the Estate of ERNEST GEORGE LESWELL (DEC)

Ascertainment of class entitled to share in disposition of estate per stirpes - s14 Administration Act 1903

The presumption of legitimacy not rebutted - Turns on own facts

Doe v Griffin [1812] EngR 175; (1812) 15 East 293

Re Wingrave [1969] VicRp 14; [1969] VR 120

By originating summons pursuant to s45 of the Administration Act 1903 the Public Trustee, as Administrator of the Estate of Robert Arthur Leswell, ("the Deceased") raises for determination the questions of the ascertainment of the class of the brothers and sisters of the Deceased and of the class of the nephews and nieces of the Deceased.

The first defendants in this matter are the persons or the representatives of the interests which might be within these classes and thereby entitled to share in the disposition of the Deceased's estate. Mr Brian Higgins was appointed as representative defendant of the first defendants' by court order on 16 January 1997.

The second defendant in this matter is the Public Trustee, by chain of executorship, in his capacity as executor of the estate of Nicola Riggio, who was executor of the estate of Ernest George Leswell, deceased. It is accepted by the plaintiff and the first defendants that Ernest George Leswell is the half-brother of the Deceased and that the estate of Ernest George Leswell is entitled to share in the distribution of the Deceased's estate.

The Deceased died without a will on 24 April 1989. He was a bachelor and had no children. His parents pre-deceased him. Pursuant to s14 of the Administration Act 1903 his estate falls to be distributed to his brothers and sisters, nephews and nieces per stirpes. Relatives of the half blood and relatives of the full blood are not distinguished under the Administration Act 1903.

It was accepted by all parties that pursuant to s19 of the Registration of Births, Deaths and Marriages Act 1961 the information contained on registered copies of certificates is prima facie admissible evidence "in all legal proceedings, whether civil or criminal of the facts of the birth, death or marriage to which the certified copy relates". Further, at common law statements contained in a public document are admissible evidence under the exception to the rule against hearsay: Jackson v Jackson and Pavan [1960] 3 All ER 621.

The Deceased was the son of Robert Leswell and Harriet Gertrude Leswell. Robert Leswell and Harriet married on 19 December 1918 in Perth. On the certificate of this marriage Robert Leswell was described as a widower (annexure D to the affidavit of John Allen Mack, sworn 4 June 1996 "the affidavit"). However, a search of the public records has revealed that on 1 June 1898 Robert Leswell, who was then aged 34 and a bachelor, married Blanche Catherine Hussey (annexure E to the affidavit). The information provided on the certificates of these marriages, together with the information on various birth and death certificates to which I will refer, as well as information from members of the family, is sufficient to establish that it was the same Robert Leswell who contracted each of these marriages. Yet there is no record of a divorce of Robert Leswell from Harriet Gertrude Leswell.

Six children were evidently born to Blanche Catherine Leswell (Hussey) after her marriage to Robert Leswell in 1898. The birth certificates of Frances Rose Leswell, born 21 November 1905, Beatrice Lilly Leswell, born 26 May 1908, Kathleen Daphne Leswell, born 19 May 1910, Ernest Harvey Leswell, born 19 October 1912, Esme Ivy Leswell, born 20 February 1916 and Grace Irene Leswell, born 29 December 1917 all show the informant as Blanche Catherine Leswell nee Hussey, and in each case the father of the children is shown as Robert Leswell (annexure F to the affidavit). Furthermore, on the birth certificates of Beatrice, Kathleen and Ernest, R Leswell is named as an occupier or other witness.

Some members of the family among the first defendants have raised an issue as to the paternity of the six children born to Blanche Catherine Leswell. There are evidentiary difficulties affecting this issue but if these are put to one side for the present the contention is that it is understood that Robert Leswell had separated from Blanche Catherine Hussey before the birth of at least some of the six children and that the father of those children was another man, a Robert Francis Leslie.

Some support for this is found in the marriage certificates of Grace Irene and Kathleen Daphne who were registered at birth as Leswell but are shown on their marriage certificates as Grace Irene Leslie and Kathleen Daphne Leslie. There is also a notation on the birth certificate of Ernest Harvey Leswell that he changed his surname in 1951 from Leswell to Leslie. Furthermore, the electoral rolls show that during 1912 and 1914 Blanch (sic) Catherine Leslie, householder, was registered as living at 355 Newcastle Street. In 1916 Blanche Catherine Leslie, householder, was registered as living at Savage Street, Meekatharra. The information on the certificates and otherwise is consistent with this Blanch Catherine Leslie being the same person as Blanche Catherine Leswell, although it falls short of establishing that necessarily to be the case. A search of the public records revealed no death certificate in Western Australia for a Francis or Robert Leslie which could be linked with this family.

Again leaving aside evidentiary issues, as far as family knowledge and "understandings" as known to the representative defendant Mr Higgins could assist these issues, Blanche Catherine and her son both used the name Leslie. The family never spoke about the name Leslie or Leswell, however, and why his grandmother, Blanche, might have used the name Leslie as early as 1912 and why two of her daughters Grace Irene and Kathleen Daphne, used the name Leslie is unknown to the present members of the family.

The leading authorities with respect to this area of the law date back to the early nineteenth century. The relevant cases indicate that when a married couple bear a child after the marriage of the mother and during her husband's life, there is a presumption of paternity resulting in legitimacy. In other words, there is a presumption that sexual intercourse occurred between the spouses and that this intercourse resulted in the birth of the child born of the wife: The Banbury Peerage Case [1811] EngR 440; (1811), 1 Sim & St 153, Morris v Davies [1837] EngR 1126; (1837) 5 Cl & Fin 163 and the Aylesford Peerage Case (1885) 11 App Cas 1.

In the instant case it may be accepted that Robert Leswell married Blanche Catherine Hussey on 1 June 1898 and there is no record of their ever being divorced. The birth certificates of Frances, Beatrice, Kathleen, Ernest, Esme and Grace are admissible evidence of the facts of the births and show the parents to be Robert Leswell and Blanche Leswell, nee Hussey. The informant in each case was Blanche Leswell and her statements on the birth certificates are admissible evidence of the truth of the statements. This is under the exception to the rule against hearsay evidence as a statement made by a deceased person relating to the pedigree of another person who is related by blood, in proceedings relating to the pedigree of that other person: Goodright d Stevens v Moss [1777] EngR 38; (1777) 2 Cowp 591.

Therefore, there is a presumption of paternity resulting in legitimacy of the six children, Frances Rose, Beatrice Lily, Kathleen Daphne, Ernest Harvey, Esme Ivy and Grace Irene.

This presumption of legitimacy may be rebutted if it is shown by evidence that the husband did not have access to his wife within the appropriate period of time before the birth of the child. The onus of displacing this presumption of legitimacy is always on the person calling this prima facie legitimacy into question: The Banbury Peerage Case (supra) at 155. If the husband had opportunities of having sexual intercourse with his wife "it is presumed that he availed himself of these opportunities, unless he be shewn to be impotent". Cope v Cope (1833) 1 Mood & R 269 at 275.

Even where it has been shown that there was opportunity of access between the husband wife and the husband was not impotent, the presumption of sexual intercourse may still be rebutted if the facts of the case give reasonable ground for concluding that sexual intercourse did not take place: Cope v Cope (supra) at 275. In Morris v Davies [1837] EngR 1126; (1837) 5 Cl & Fin 163 Lord Lyndhurst stated, at 404, that the presumption:

"... is not lightly to be repelled. It is not to be broken in upon, or shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive."

In that case, Lord Lyndhurst then decided on the following facts, at 404-406, namely, the open adultery of the wife and her concealment of the birth of the baby, the manner of disposition of property by the husband, the acknowledgment of the child by the adulterer and the register of baptism of the child in question as a "base-born child", that the child was that of the adulterer.

In the instant case, taken at its highest and disregarding evidentiary difficulties, the only evidence led to cast doubt over the paternity of the children is the apparent use of the name Blanche Leslie by Blanche Leswell as early as 1912 and the later use of the name Leslie by three of the children, namely Ernest, Grace and Kathleen. There is no evidence that there was no ongoing access between husband and wife at the times relevant to the conception and birth of the six children. It is salient that on the birth certificates of Beatrice, Kathleen and Ernest who were born between 1908 and 1912 R Leswell is named by Blanche - the informant - as an occupier or other witness, which is some evidence of ongoing access between them. No evidence before me can be considered strong or conclusive and, having regard to the principles identified earlier, there is nothing which is sufficient, when taken separately or in combination, to rebut the clear presumption of paternity in respect of each of the six children I have identified.

For the above reasons I am persuaded that the Deceased's father, Robert Leswell, was the father of Frances Rose Morphett, Beatrice Lily McGrath, Kathleen Daphne Flegg, Ernest Harvey Leslie, Esme Ivy Higgins and Grace Irene Phillips who would rank therefore within the class of the brothers and sisters of the Deceased. The surviving children of these six brothers and sisters of the Deceased are therefore within the class of the nieces and nephews of the Deceased for the purposes of s14 of the Administration Act.