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$ 633. The Term "Children" Includes After-Born Children.

A devise may be made to after-born children, and the phrase “our children” in a will embraces an after-born child and he is included with the children living at the date of the will in sharing the benefits of the provisions made for the children." And likewise the term “grandchildren” has been held to include a posthumous grandchild.72

8 634. Object of Statutes Providing for Children Omitted From

Will.

The object of the statutes granting rights to pretermitted children is to guard against the consequences of a parent's forgetfulness whereby some of his children may be provided for at the expense of others.78 The failure to allude to any of his children is evidence that they

was beld that they succeeded Devisee, 1 B. Mon. (40 Ky.) 266, under the statute to the same por- 268. tion of the estate as they would 72 Smart V. King, Meigs (19 have received in case of intestacy. Tenn.) 149, 33 Am, Dec. 137. -Tavshanjian v. Abbott, 200 N. Y.

Under the Arkansas statute 374, 93 N. E. 978, affirming 130

(Kirby's Dig., $ 8020), the great App. Div. 863, 115 N. Y. Supp. 938.

granddaughter of the testator can 71 Kidder's Exrs. V. Kidder, not recover when it is not shown (N. J. Eq.) 56 Atl. 154.

that she was living at the time To the same effect: Burdet v. the will was made. — King V. Hopegood, 1 P. Wms. 486; Clarke Byrne, 92 Ark. 88, 122 S. W. 96. v. Blake, 2 Ves. Jun. 673; Branton 73 Payne v. Payne, 18 Cal. 291; V. Branton, 23 Ark. 569, 580; Callaghan's Estate, 119 Cal. 571, Byrnes v. Stilwell, 103 N. Y. 453, 39 L. R. A. 689, 51 Pac. 860; Porter 57 Am. Rep. 760, 9 N. E. 241; V. Porter's Exr., 120 Ky. 302, 27 Barker v. Pearce, 30 Pa. St. 173, Ky. Law Rep. 699, 86 S. W. 546; 72 Am. Dec, 691.

Wilder v. Goss, 14 Mass. 357; MCContra: Armistead V. Danger- Courtney V. Mathes, 47 Mo. 533; field, 3 Munf. (Va.) 20, 5 Am. Dec. Gerrish v. Gerrish, 8 Ore. 351, 34 301; Shelby's Exrs. v. Shelby's Am. Rep. 585.

were so forgotten." There is no intent, by such statutes, in any way to limit the disposing power of a testator or to compel him to make any substantial provision for his children ;75 but the object is to give to the pretermitted child, presumably forgotten, such share as he would have received had there been no will.76 The right of a testator to dispose of his property even to the exclusion of his children can not be denied in the absence of a statute forbidding it, or in the absence of a valid contract to will his property to a child.78

Such statutes are for the purpose of regulating succession to the property of decedents in all cases of wills which fail to mention or provide for the children of the testator, whether the will was made before or after the passage of the act. It is therefore the law in force at the time of the death of the testator which prevails.79

74 McCourtney v. Mathes, 47 Mo. If the language of the will is 533.

clear and shows there has been 75 Callaghan's Estate, 119 Cal. no oversight or omission and that 571, 39 L. R. A. 689, 51 Pac. 860; the testator has chosen to disSmith v. Steen, 20 N. M. 436, 150 tribute his estate unequally Pac. 927.

among his children or even to 76 Rowe v. Allison, 87 Ark. 206, exclude some of them entirely, it 112 S. W. 395.

is not the policy of the law to 77 Rhoads v. Rhoads, 43 Ill. 239; interfere with his right to do so.Addington v. Wilson, 5 Ind. 137, Porter V. Porter's Exr., 120 Ky. 61 Am. Dec. 81; Rabb v. Graham, 302, 27 Ky. Law Rep. 699, 86 S. W. 43 Ind. 1; Ackerman v. Fichter, 546. 179 Ind. 392, Ann. Cas. 1915D, 1117, 78 Odenbreit Utheim, 131 46 L. R. A. (N. S.) 221, 101 N. E. Minn. 56, L. R. A. 1916D, 421, 154 493; Matter of Goldthorp's Estate, N. W. 741. 115 Iowa 430, 88 N. W. 944; Oden- See vol. 1, ch. 8, Contracts to breit v. Utheim, 131 Minn. 56, Make Wills. L. R. A. 1916D, 421, 154 N. W. 79 Obecny V. Goetz, 134 App. 741; Seguine v. Seguine, 42 N. Y. Div. 166, 118 N. Y. Supp. 832. (3 Keyes) 663, 4 Abb. Dec. 191, See § 276 on same subject. 35 How. Pr. (N. Y.) 336; Linney v. Peloquin, 35 Tex. 29.

$ 635. Intent to Omit Children From Will: How Expressed.

In many jurisdictions the intent to exclude the child must be expressed in the will.80 In others the fact of the omission raises a prima facie presumption that there was no intentional omission, but such presumption is rebuttable by extrinsic proof.81 In some states the burden of proof is upon the child to show that the omission was by accident or mistake.82 In Kansas, if the testator at the time of executing the will has a child who is absent and reported to be dead, and omits to provide for him in his will, the child is entitled to the same interest that he would have received in case of intestacy.83 In Kentucky there are also provisions in favor of children and grandchildren supposed by the testator to be dead or whom the testator did not know were living; if unprovided for

so It was the intent of the legis. Revisal 1905, § 3145, applies lature to declare intestacy as to when the omission is from inad. unmentioned children unless the vertence or mistake, and unless a testator expressed a contrary in- will in express terms shows the tention in his will, and such inten. omission is intentional the child tion may be expressed by provid- is entitled to share in the estate.ing for them as a class without Flanner v. Flanner, 160 N. C. 126, naming them separately or by 75 S. E. 936. naming them without providing Compare: Thomason v. Julian, for them. — Brown v. Nelms, 86 133 N. C. 309, 45 S. E, 636. Ark. 368, 112 S. W. 373.

81 Bancroft Ives, 3 Gray The will must show on its face (Mass.) 367; Peters v. Siders, 126 and must indicate directly or by Mass. 135, 30 Am. Rep. 671; implication equally as strong that Meyers v. Watson, 234 Mo. 286, the testator had the omitted child 136 S. W. 236; Schultz v. Schultz, in mind and, having had him in 19 N. D. 688, 125 N. W. 555; Parmind, omitted to make mention of sons V. Balson, 129 Wis. 311, 109 him in order to cut him off from N. W. 136. taking under the will.-Estate of 82 King v. Byrne, 92 Ark. 88, 122 Stevens, 83 Cal. 322, 329, 17 Am. S. W. 96. St. Rep. 252, 23 Pac, 379; Rhoton 83 Dassler's Gen. Stats. Kan., v. Blevin, 99 Cal. 645, 647, 34 Pac. 1909, $ 9816.

V.

they take as in case of intestacy, but the presumption that the pretermission was the result of a mistake may be rebutted. 84

8 636. Presumption That Omission of Children Was Uninten

tional. Where a testator has omitted to provide for or mention any of his children by his last will, the general presumption is that the omission was unintentional. This presumption, however, may be rebutted by the contents of the entire will or any part thereof which indicates that the children were not forgotten. A will incorporating within itself by reference the will of the testatrix's husband in which her children were named, is a sufficient “naming and providing for” within the meaning of the statute requiring provision for or mention of children.85 But the mention of a child unprovided for should be more than a mere meaningless reference, it should evince an intent on the part of the testator that the child in question should take no benefit under the will.86 Mention of a child deceased at the time of the making of the will is not a mention of the issue of such child ; 87 nor is a reference

84 Russell's Stats., Kentucky, 1909, $ 3965.

85 Gerrish v. Gerrish, 8 Ore. 351, 354, 34 Am. Rep. 585. See, also, Hockensmith v. Slusher, 26 Mo. 237.

86 Pearce v. Carrington, (Tex. Civ. App.) 124 S. W. 469.

A devise to Frederick William was held to be intended for a son, William Frederick, and therefore, mentioning him, was valid as to him.-Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956.

Civ. Code, $ 3262, does not apply to a case in which it appears that the testator knew that a given person lived and claimed to be his nearest kin, and had full time and opportunity before executing the will to ascertain the truth or falsity of the claim to relationship.-Young v. Mallory, 110 Ga. 10, 35 S. E. 278.

87 Where the will named a child who was dead at the time, but omitted to mention the names of the dead child's children who

by the testator to his heirs equivalent to mentioning his children.88

8 637. Parol Evidence as to Intention of Testator to Omit

Child From Will: Conflict of Authority. There is a contrariety of opinion in the decisions of the courts as to whether extrinsic circumstances may be considered in determining the testator's intention to leave unprovided for a child of whom no mention was made in his will. The better opinion, supported by the weight of authority, would seem to be that circumstances extrinsic to the will may be shown and taken into consideration, 89 were living at the time of the ex. natural life or to sell and convey ecution of the will, the testator for the benefit of herself and her died intestate as to those chil- heirs," the testator died intestate dren, so as to entitle them to a so far as his children were conpart of the estate from the lega. cerned. - Neal v. Davis, 53 Ore. tees named in the will.-Gray V. 423, 99 Pac. 69; rehearing denied Parks, 94 Ark. 39, 125 S. W. 1023. in 101 Pac. 212.

The fact that grandchildren 89 Sutton V. Hancock, 115 Ga. were omitted from the will of 857, 42 S. E. 214; Hawhe v. Chitheir grandfather, in which their cago & W. I. R. Co., 165 Ill. 561, mother, daughter-in-law of the tes- 46 N. E. 240; Peet v. Peet, 229 III. tator, was mentioned, does not 341, 11 Ann, Cas. 492, 13 L. R. A. show that the omission was in. (N. S.) 780, 82 N. E. 376; Estate tentional.-Estate of Salmon, 107 of Donges, 103 Wis. 497, 74 Am. Cal. 614, 617, 48 Am. St. Rep. 164, St. Rep. 885, 79 N. W. 786. 40 Pac. 1030.

Where the object of the eviThe fact that a legacy was left dence is to place before the court to & child that was dead and. the circumstances attending the which therefore lapses, is not ma- execution of the will in support of terial upon the question of omis- and in aid of the intention of the sion to provide for grandchildren. testator as declared in the will, -Estate of Ross, 140 Cal. 282, 291, the court in its discretion has the 73 Pac. 976.

right to hear such evidence. 88 The word "heirs" used in a Hawhe v. Chicago & W. I. R. Co., will is not equivalent to "chil- 165 Ill. 561, 46 N. E. 240; Peet v. dren," and where the testator left Peet, 229 Ill. 341, 11 Ann. Cas. 492, his estate to his wife, “to have 13 L. R. A. (N. S.) 780, 82 N. E. and to hold the same during her 376.

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