Scottish Court of Session Decisions

This is an action of declarator of bastardy at the instance of William Ebenezer Smith of the city of Aurora in the county of Kane and state of Illinois in the United States of America, against the known relatives of the late Mrs Janet Wilkie or Smith. The Crown is also called as ultimus hœres of the deceased. The conclusions of the action are as follows:—“Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session, that the now deceased Janet Wilkie or Smith, sometime wife of the also now deceased Henry Smith, photographic artist in Edinburgh, was a bastard or natural child of the now deceased Helen Galt, thereafter Wilkie, daughter of the late David Galt or Gaat, carter, Grange Loan, Edinburgh; and that the said Janet Wilkie or Smith was not the lawful child of the also now deceased Robert Wilkie, weaver, sometime residing in Kay's Court, Cross causeway, Edinburgh, and thereafter in New Street there; and that she had no right or title to any of the legal, civil, or other rights which would have been competent to her had she been the lawful child to the said Robert Wilkie; and that having predeceased her husband, the said Henry Smith, without issue, the conveyance in a general disposition and settlement executed by the said deceased Henry Smith upon the 14th day of November 1860, and recorded in the books of Council and Session upon the 21st day of February 1868, whereby he gave, granted, and disponed to and in favour of the said Janet Wilkie or Smith, and her heirs and assignees whomsoever, heritably and irredeemably, his whole heritable and moveable estate of every description has lapsed and become inoperative and ineffectual; or otherwise it ought and should be found and declared, by decree foresaid, that the conveyance contained in the said general disposition and settlement was revoked, recalled, and cancelled, by a codicil thereto annexed, executed by the said Henry Smith on 8th February 1868, and recorded along with the said general disposition and settlement, in the books of Council and Session, of the date foresaid.” The pursuer made the following averments as to the status of the said Janet Wilkie or Smith: “(3) The said Janet Wilkie or Smith died on 2d February 1868 (six days before her husband), without leaving lawful issue. She was the illegitimate daughter of Helen Galt or Gaat, daughter of the late David Galt or Gaat, carter, Grange Loan, Edinburgh, and was born there in or about the month of February 1821. Her father's name was Anderson, a mason or marble cutter, in Edinburgh, who absconded at the time of her birth and has not since been heard of. At the time of the said birth the said Helen Galt was unmarried, and resided in family with her father, David Galt, in a small cottage at Grange Loan, near Edinburgh. The said —— Anderson and Helen Galt were never married, and never lived together as habit and repute married persons. The said child was always known and reputed to be the illegitimate daughter of the said Helen Galt, and was never legitimated by the subsequent marriage of its said parents. (4) In the month of September 1821, the said Helen Galt was engaged by the late Thomas Ireland, accountant, Edinburgh, who was then residing at Blackford farmhouse, to act as nurse for his son, George Ireland, who was born on the 9th day of September in that year. The said Helen Galt continued in the employment of the said Thomas Ireland in that capacity for upwards of two years. It was well known at that time that she had recently given birth to the said illegitimate child, and that it was procreated between her and the said —— Anderson, while no lawful marriage subsisted between them. After leaving Mr Ireland's service, the said Helen Galt was, for the period of one year, engaged as a general house servant in Watson's Hospital. (5) On the 27th day of April 1824, and about three years after the birth of her illegitimate child, the said Helen Galt was married to Robert Wilkie, weaver, Shoemaker's Close, Edinburgh, at that time a widower, and her child thereafter resided in family with them, and went by the name of Janet Wilkie. She was not the child of the said Robert Wilkie, however, and was born during the life of Isabella White or Wilkie, his first wife, who died upon the 25th day of August 1821, about six months after the birth of the said Janet Wilkie or Smith. The said Helen Galt or Wilkie had no children by her said husband, and she was not married after his death. Her illegitimate daughter, the said Janet Wilkie or Smith, has no “heirs or assignees,” and the conveyance in the said general disposition and settlement has lapsed and become inoperative and ineffectual, in consequence of her having predeceased her husband, the said Henry Smith, without leaving lawful issue. (6) The defender, the

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said Mrs Janet Wilson or Dick, is a cousin by the mother's side of the said deceased Janet Wilkie or Smith, and the defender, the said Joan Wilkie or Park, claims to be the only surviving sister of the said deceased Robert Wilkie. The other defenders, the said David Ridley, James Ridley, and Joseph Ridley, are children of the deceased Mary Wilkie or Ridley, wife of James Ridley, boat builder, Leith (also now deceased), who is also said to have been a sister of the said Robert Wilkie. The defenders are the only known relatives of the said Janet Wilkie or Smith. The Crown has been called for its right, if any, as ultimus hœres of the said deceased Janet Wilkie or Smith.”

The Lord Ordinary ( Ormidale) pronounced the following interlocutor:—The Lord Ordinary having heard Counsel for the parties, and considered the argument and proceedings, including the proof, finds, as matter of fact, that the deceased Mrs Janet Wilkie or Smith, whose legitimacy is in question, was, during her life, generally reputed to be and possessed the status of a lawful daughter of Robert Wilkie and his wife Nelly or Helen Galt or Wilkie: Finds farther, that the pursuer has failed to prove that the said Mrs Janet Wilkie or Smith was not tire lawful daughter of the said Robert Wilkie and Nelly or Helen Galt or Wilkie: Finds, therefore, that the defenders are entitled to absolvitor from the first alternative conclusions of the Summons, which proceed on the assumption or footing that the said Mrs Janet Wilkie or Smith was a bastard. Assoilzies them accordingly, and decerns: Appoints the case to be enrolled, that the remaining conclusion of the Summons may be taken up and disposed of, reserving, in the meantime, all questions of expenses.

“ Note.—That Mrs Janet Wilkie or Smith was, down to her death, reputed to be, and possessed the status of, a lawful daughter of Nelly or Helen Galt and Robert Wilkie, is, the Lord Ordinary thinks, clear from the proof. And if this be so, the onus probandi is on the pursuer to establish that she was a bastard. The authorities bearing on this point are referred to by Mr Fraser (Domestic Relations, vol. ii., p. 8), and they show that the onus which must be held to lie upon the pursuer cannot be satisfied except on very satisfactory and conclusive grounds. In the case of Walker v. Walker, 23d January 1857, 19 D. 290, the legitimacy of a person was held to be established, although his mother was only married to his father after his birth, and although the mother, after her husband's death, had emitted a declaration of his illegitimacy.

“In the present case, the evidence adduced by the pursuer is entirely of a hearsay character, and not, in any view the Lord Ordinary can take of it, of a very reliable nature. It is true that some of the witnesses speak to having been told by Mrs Smith's mother that she was illegitimate, while others speak to having been told so by Mrs Smith herself. But nearly all of them concur in stating that such communications were made to them, not for the purpose of disturbing the status and reputation which Mrs Smith possessed, of being the lawful daughter of Robert Wilkie, but, on the contrary, for the purpose, as they say, somewhat oddly and inconsistently, of preventing any such result. The precise words used by Mrs Smith and her mother in the communications referred to are not given, and it is not improbable, the Lord Ordinary thinks, that, in so far as they may be founded in truth at all, they arise out of, and had reference to, the circumstance, in support of which there is a good deal of evidence, that Mrs Smith, although the child of Nelly or Helen Galt and Robert Wilkie, may have been born before the marriage of these persons. Some of the witnesses, no doubt, say not only that Mrs Wilkie mentioned to them that Robert Wilkie was not the father of Mrs Smith, but that her father was John Anderson, a marble-cutter. On the other hand, however, other of the witnesses state that they never heard the name of the father mentioned; while one of them says that the heard he was a person of the name of Wilson.

“The Lord Ordinary can give no effect to the attempt of the pursuer to show that Robert Wilkie was a married man at the time Mrs Smith was born, there being nothing like sufficient or reliable evidence to that effect. The Robert Wilkie referred to in the certificate of the burial of Isabella White, No. 13 of process, has not been proved to be the Robert Wilkie who married Helen Galt.

“On a consideration of the whole proof, and keeping in view, 1st, that Mrs Smith, if she was not born in wedlock, lived with her mother and Robert Wilkie from her infancy till her own marriage; 2dly, that during all that time she went by the name of Janet Wilkie, and was never known to have had any other name; 3dly, that she was always treated and talked of by Robert Wilkie as his child; and 4thly, that she was entered in his family bible as such;—the Lord Ordinary cannot arrive at any other conclusion than that the pursuer has failed to establish that Mrs Janet Wilkie or Smith was a bastard; and he has accordingly assoilzied the defenders from the conclusions of the summons which have that for their object.”

The pursuer reclaimed.

Solicitor-General and Orphoot for him.

Gifford and Harper in answer.

At advising—