standard for asking someone to submit to testing to determine heirship it wasn't just a suspicion it was something more than that so i actually attached affidavits from three different people who were not going to receive under the estate disturb the presumption of of the genesee i bring this appeal for the reason that we never got to a hearing we never got into discovery this was this was stopped at the very beginning before anything happened something akin to a dispositive six nineteen motion saying that there are no set of facts that are alleged that that would allow you to get on past it to to a trial or hearing on the issues in my complaint we allege as facts that they are not the children all the facts next thing is did i raise enough of a factual issue or enough fast to take this beyond just that i think they're not my children because the dark case was was based on double hearsay and self serving affidavits that's what that's what the the case said in our case we have affidavits from non beneficiaries that are saying exactly what the decision said the dissent thing mr ladley own thomas lazily the father he said he's on more than one occasion it's what relationship so they should stay stood on the other hand your honour's the affidavit standard by the other three children were all from them basically saying the dead never told me that which and there were some there was some discussion in that case about one of the issues that was raised in this case and that was one of the parity gestures dispositive of this issue and that and that court they said no within her powers of a court to determine issues and in this airship that parentage doesn't control it the deceit and would have been bringing an action himself to contest some responsible that either followed on or didn't know about or whatever yes those things could be but this that's not the case here my client is not the dissident so really the issue is is are they in error and is there enough rights to submit that they should be submit submit to a test and we didn't get to the by name which i think was she had her something prepared a will it wasn't signed it's not effective but it is one bit of evidence it's indicative of something that suggests that he wasn't going to give these monies to his child but i and the facts that i like i think are not subject to any plane with conclusions are built are that father said on these occasions that these are these were not his children these three there is resistance that testing i mean quite frankly i didn't i didn't  enough to ask him to intrude upon them in the end to the cow case basically said that there's a balancing there where there is an intrusion on staffing to submit to d n a there's a whole litany discussed let me of cases discuss in pal about that intrusion that that might be submitted but we you know we never reached discovery or my need for discovery because i never reached that motion that motion argument for purposes of a for purposes of a six nineteen motion issue the one issue that was raised when i after i filed that i was not aware of was an issue that shortly before a mike the the decision in this case i want tom lastly passed away my client brought an action for guardianship and in and of the course you know they know there's a form of the petition and one of the things in there you name often it says in their relationship kindred children so on so for my client file and signed one that listed the submit to you that that we're here to determine whether there is an airship there is they are or they are the children unless this court since a case back and then another court decides that they're not so i submit to you what do you do when you  i think the facts are very similar and they're very similar to the extent that in charge you know the there was affidavits from the father and aunt saying that the person in question was not the year and there were contradictory affidavits from the mother and then there were birth certificates which were offered in contradiction and as you know and decided is that they found  that that wasn't enough to overcome the presumptions that were involved in it's uncontested that my clients were born during the course of the marriage the earlier the births of this case  include the birth certificates but also those past have to do with whether or not i'm tain has clearly alleged that the seed was not to show at a later hearing like summary judgment what does it have to do with it to six nineteen well i mean for me the matter can't be facts saying i've got better facts than any other guy so i weigh the standing or permit of matter having nothing to do with a negation of the fundamental overman some facts which the plaintiff has brought that's not affirmative data what's the affirmative matter this case himself that they in fact were the children of the says this connect points out that would all be important stuff in a motion for summary judgment but this isn't we're just at a pleading stage now where what you're saying to mislead hanson is you me not proceed with this case you lose you have otherwise stated a legitimate cause of action against me for purposes of my two six line motion but because of this affirmative better it's a motion to dismiss of the two six fifteen in which you're claiming that he fails to state a proper cause affection or to do that in some seventeen paragraphs and then the other part of his motion to dismiss under section two six nineteen in which you real leverage the same seventeen per grass of the motions to dismiss under your two six fifteen portion and in addition alleged not another thing so if we're wondering about is there some affirmative matter in addition to the claim insufficiencies of his general only to ten zero five of the code of civil procedure and two six nineteen motion for summary judgment and motions for involuntary dismissal based upon affirmative matter none of which is now before was not before judge  affidavit see presidents in support of his motion would be subject to these requirements and if the fission could be struck it one of the things that that case does say is i think i will you're correct then how will the parties mislabelled it all and i explained why that was labeled it and i said they essentially argued it as if it was a motion for summary judgment  that's how the court so it was a comedy of errors and we accepted their mischaracterizations on that basis a proof and the i don't think it really changed the application of the jar decision there are still it's a presumption as in dark there was a presumption and was there sufficient evidence still or from it's a matter brought forth to to rebut that and they said that there was ample and the facts of the case and and call were the mother the father the boyfriend all admitted and then there was a home d n a test for a home pregnancy test which they took and found that person question was not was not the parent and the only defense powers of the court that it can make decisions regarding probate including airship with respect to the reliability of what you know i don't know whether the when the case gets the final point i've got a whole thing like i have where all have enough to convince a court that the discretion should be exercised but i submit to you that if i'm able to get that far in the court does order then i have one set of proof that i think is pretty reliable d n a but if i don't deny they have to present all what i father said he's my kids or some state agency and a few steps and they were saying that was hearsay because he was dead and all the court calls up they were saying that the new police are not all there is a hearsay exception if you make a statement about family history of relationship by blood