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8633. 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

§ 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.73 The failure to allude to any of his children is evidence that they

was held that they succeeded under the statute to the same portion of the estate as they would have received in case of intestacy. -Tavshanjian v. Abbott, 200 N. Y. 374, 93 N. E. 978, affirming 130 App. Div. 863, 115 N. Y. Supp. 938. 71 Kidder's Exrs. v. Kidder, (N. J. Eq.) 56 Atl. 154.

To the same effect: Burdet v. Hopegood, 1 P. Wms. 486; Clarke v. Blake, 2 Ves. Jun. 673; Branton v. Branton, 23 Ark. 569, 580; Byrnes v. Stilwell, 103 N. Y. 453, 57 Am. Rep. 760, 9 N. E. 241; Barker v. Pearce, 30 Pa. St. 173, 72 Am. Dec. 691.

Contra: Armistead v. Dangerfield, 3 Munf. (Va.) 20, 5 Am. Dec. 501; Shelby's Exrs. v. Shelby's

Devisee, 1 B. Mon. (40 Ky.) 266, 268.

72 Smart v. King, Meigs (19 Tenn.) 149, 33 Am. Dec. 137.

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Under the Arkansas statute (Kirby's Dig., § 8020), the great granddaughter of the testator can not recover when it is not shown that she was living at the time the will was made. King v. Byrne, 92 Ark. 88, 122 S. W. 96. 73 Payne v. Payne, 18 Cal. 291; Callaghan's Estate, 119 Cal. 571, 39 L. R. A. 689, 51 Pac. 860; Porter v. Porter's Exr., 120 Ky. 302, 27 Ky. Law Rep. 699, 86 S. W. 546; Wilder v. Goss, 14 Mass. 357; McCourtney v. Mathes, 47 Mo. 533; Gerrish v. Gerrish, 8 Ore. 351, 34 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; 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."

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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. 533.

75 Callaghan's Estate, 119 Cal. 571, 39 L. R. A. 689, 51 Pac. 860; Smith v. Steen, 20 N. M. 436, 150 Pac. 927.

76 Rowe v. Allison, 87 Ark. 206, 112 S. W. 395.

77 Rhoads v. Rhoads, 43 Ill. 239; Addington v. Wilson, 5 Ind. 137, 61 Am. Dec. 81; Rabb v. Graham, 43 Ind. 1; Ackerman v. Fichter, 179 Ind. 392, Ann. Cas. 1915D, 1117, 46 L. R. A. (N. S.) 221, 101 N. E. 493; Matter of Goldthorp's Estate, 115 Iowa 430, 88 N. W. 944; Odenbreit v. Utheim, 131 Minn. 56, L. R. A. 1916D, 421, 154 N. W. 741; Seguine v. Seguine, 42 N. Y. (3 Keyes) 663, 4 Abb. Dec. 191, 35 How. Pr. (N. Y.) 336; Linney v. Peloquin, 35 Tex. 29.

If the language of the will is clear and shows there has been no oversight or omission and that the testator has chosen to distribute his estate unequally among his children or even to exclude some of them entirely, it is not the policy of the law to interfere with his right to do so.Porter v. Porter's Exr., 120 Ky. 302, 27 Ky. Law Rep. 699, 86 S. W. 546.

78 Odenbreit V. Utheim, 131 Minn. 56, L. R. A. 1916D, 421, 154 N. W. 741.

See vol. 1, ch. 8, Contracts to Make Wills.

79 Obecny v. Goetz, 134 App. Div. 166, 118 N. Y. Supp. 832.

See § 276 on same subject.

§ 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

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living; if unprovided for

Revisal 1905, § 3145, applies when the omission is from inadvertence or mistake, and unless a will in express terms shows the omission is intentional the child is entitled to share in the estate.Flanner v. Flanner, 160 N. C. 126, 75 S. E. 936.

Compare: Thomason v. Julian, 133 N. C. 309, 45 S. E. 636.

81 Bancroft v. Ives, 3 Gray (Mass.) 367; Peters v. Siders, 126 Mass. 135, 30 Am. Rep. 671; Meyers v. Watson, 234 Mo. 286, 136 S. W. 236; Schultz v. Schultz, 19 N. D. 688, 125 N. W. 555; Parsons v. Balson, 129 Wis. 311, 109 N. W. 136.

82 King v. Byrne, 92 Ark. 88, 122 S. W. 96.

83 Dassler's Gen. Stats. Kan., 1909, § 9816.

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

§ 636. Presumption That Omission of Children Was Unintentional,

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

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

8637. 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 execution of the will, the testator died intestate as to those children, so as to entitle them to a part of the estate from the legatees named in the will.-Gray v. Parks, 94 Ark. 39, 125 S. W. 1023.

The fact that grandchildren were omitted from the will of their grandfather, in which their mother, daughter-in-law of the testator, was mentioned, does not show that the omission was intentional.-Estate of Salmon, 107 Cal. 614, 617, 48 Am. St. Rep. 164, 40 Pac. 1030.

The fact that a legacy was left to a child that was dead and. which therefore lapses, is not material upon the question of omission to provide for grandchildren, -Estate of Ross, 140 Cal. 282, 291, 73 Pac. 976.

88 The word "heirs" used in a will is not equivalent to "children," and where the testator left his estate to his wife, "to have and to hold the same during her

natural life or to sell and convey

for the benefit of herself and her heirs," the testator died intestate so far as his children were concerned. Neal v. Davis, 53 Ore. 423, 99 Pac. 69; rehearing denied in 101 Pac. 212.

89 Sutton v. Hancock, 115 Ga. 857, 42 S. E. 214; Hawhe v. Chicago & W. I. R. Co., 165 Ill. 561, 46 N. E. 240; Peet v. Peet, 229 Ill. 341, 11 Ann. Cas. 492, 13 L. R. A. (N. S.) 780, 82 N. E. 376; Estate of Donges, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N. W. 786.

Where the object of the evidence is to place before the court the circumstances attending the execution of the will in support of and in aid of the intention of the testator as declared in the will, the court in its discretion has the right to hear such evidence. Hawhe v. Chicago & W. I. R. Co., 165 Ill. 561, 46 N. E. 240; Peet v. Peet, 229 III. 341, 11 Ann. Cas. 492, 13 L. R. A. (N. S.) 780, 82 N. E. 376.

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