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although nothing can be received to add anything to a will plain and certain upon its face.90
There is, however, authority to the effect that parol evidence is not admissible, and this rule has been applied where the court frankly acknowledged that the application of the rule would defeat the intention of the testator.91 The statements of a testator can not be received to prove what is intended by the written words of the will.92 8 638. The Same Subject.
The question of the testator's intent in respect to the omission to provide for or mention his children or the issue of any child in his will, is one of fact. Where extrinsic evidence is admitted to determine the question of intention, it should be submitted to the jury on all the proof.93 Parol evidence, in such jurisdictions, is held ad
90 Sandon V. Sandon, 123 Wis. Ann. Cas. 492, 13 L. R. A. (N. S.) 603, 101 N. W. 1089.
780, 82 N. E. 376. 91 Chicago, B. & Q. R. Co. V. See $ 50. Wasserman, 22 Fed. 872.
While evidence as to the surIt is not error to exclude evi. rounding circumstances is often dence offered to show a parol dis- proper and sometimes indispeninheritance of a child born after sable to an intelligent constructhe making of the will.—Burns v. tion of the language used by enAllen, 93 Tenn. 149, 23 S. W. 111. abling the court to stand in the
Where a part of the will had testator's place, still this would been erased by drawing a line not authorize the admission of through it, and mention was made evidence as to what the testator for an unborn child only in the said his intention was. The in. erased part, the mere fact of tention must be derived from the erasure is no evidence that the will itself. - Lurie v. Radnitzer, testator intended to disinherit 166 Ill. 609, 57 Am. St. Rep. 157, such child. Evidence of what the 46 N. E. 1116. testator said at the time of erasure 93 Woodvine v. Dean, 194 Mass. can not be received to prove an 40, 79 N. E. 882; Carpenter V. intention to disinherit.—Lurie v. Snow, 117 Mich. 489, 72 Am. St. Radnitzer, 166 Ill. 609, 57 Am. St. Rep. 576, 41 L. R. A. 820, 76 N. W. Rep. 157, 46 N. E. 1116.
92 Peet v. Peet, 229 Ill. 341, 11
missible to prove intent to omit a child from a will for the reason that such evidence is not offered to control or change the terms of a written instrument, since the party omitted claims under the statute and not under the will." But where the question must be determined by the terms of the document, it is a matter of construction, and parol declarations of the testator, although contemporaneous with the execution of the will and showing an intentional failure to make provision for his children, are not admissible.95
94 Wilson v. Fosket, 6 Metc. (47 Mass.) 400, 39 Am. Dec. 736.
Parol evidence is admissible to show whether or not a child was unintentionally omitted from will. See Lobb v. Lobb, 21 Ont. Law R. 262; affirmed in 22 Ont. Law R. 15; Lorings V. Margh, 6 Wall. (73 U. S.) 337, 18 L. Ed. 802; Lorieux v. Keller, 5 Iowa 196, 68 Am. Dec. 696; Whittemore v. Russell, 80 Me. 297, 6 Am. St. Rep. 200, 14 Atl. 197; Wilson v. Fosket, 6 Metc. (47 Mass.) 400, 39 Am. Dec. 736; Buckley v. Gerard, 123 Mass. 8; Goff v. Britton, 182 Mass. 293, 65 N. E. 379; Matter of Stebbids, 94 Mich. 304, 34 Am. St. Rep. 345, 54 N. W. 159; Carpenter v. Snow, 117 Mich. 489, 72 Am. St. Rep. 576, 41 L. R. A. 820, 76 N. W. 78; Bachinski v. Bachinski's Estate, 152 Mich. 693, 125 Am, St. Rep. 427, 116 N. W. 556; Whitby V. Motz, 125 Minn. 40, 51 L. R. A. IN. S.) 645, 145 N. W. 623; Snyder V. Toler, 179 Mo. App. 376, 166 S. W. 1059; Peterson's Estate, 19 Mont. 96, Ann. Cas. 1916A, 716,
140 Pac. 237; Brown V. Brown, 71 Neb. 200, 8 Ann. Cas. 632, 115 Am. St. Rep. 568, 98 N. W. 718; McMillen's Estate, 12 N. M. 31, 71 Pac. 1083; Hedderich v. Hed. derich, 18 N. D. 488, 499, 123 N. W. 276; Schultz v. Schultz, 19 N. D. 688, 125 N. W. 555; Kuster v. Yeoman, 32 Ohio C. C. R. 476; O'Connor's Estate, 21 R. I. 465, 79 Am. St. Rep. 814, 44 Atl. 591; Geer v. Winds' Exrs., 4 Desaus. (S. C.) 85; Atwood's Estate, 14 Utah 1, 60 Am. St. Rep. 878, 45 Pac. 1036; Newman v. Waterman, 63 Wis. 612, 53 Am. Rep. 310, 23 N. W. 696; Moon V. Evans' Estate, 69 Wis. 667, 35 N. W. 20.
95 Estate of Stevens, 83 Cal. 322, 328, 17 Am. St. Rep. 252, 23 Pac. 379. See, also, Pounds v. Dale, 48 Mo. 270; Chace v. Chace, 6 R. I. 407, 78 Am. Dec. 446.
Parol evidence inadmissible to show a child to have been inten. tionally omitted from the will. See Bradley V. Bradley, 24 Mo. 311; Hockensmith v. Slusher, 26 Mo. 237; Pounds v. Dale, 48 Mo.
8 639. The Same Subject: Reason for Conflicting Decisions.
The jurisdictions permitting evidence dehors the will found their decisions on statutes which declare that when any testator omits to provide in his will for any of his children, "unless it appears that such omission was intentional,” they must have the same share in the estate as if he had died intestate. The opposite rule is adopted in those states which make it mandatory for the child to take as though the testator had died intestate, the only question being whether or not the child is provided for in the will, not as to whether he was omitted intentionally or unintentionally. This explains the seeming contrariety of holdings of the different courts, and California is practically the only state which construes the same statute in a different manner from those states holding that parol evidence is admissible.96
§ 640. Remedies of Pretermitted Heirs.
The unexplained omission of children in the will does not necessarily invalidate the will although it may be ineffectual as to such persons. A pretermitted heir, how270; Gage v. Gage, 29 N. H. 533; in 133 U. S. 216, 33 L. Ed. 596, Chace v. Chace, 6 R. I, 407, 78 Am. 10 Sup. Ct. 253. The United States Dec. 446; Burns v. Allen, 93 Tenn. Supreme Court took occasion to 149, 23 S. W. 111; Bower v. Bower, severely criticise the California 5 Wash. 225, 31 Pac. 598; Hill v. leading case. Hill, 7 Wash. 409, 35 Pac. 360; The law as laid down in Matter Morrison V. Morrison, 25 Wash. of Garraud is followed, but ad. 466, 65 Pac. 779.
versely criticised, in Estate of 96 Matter of Garraud's Estate, 35 Stevens, 83 Cal. 322, 17 Am. St. Cal. 336.
Rep. 252, 23 Pac. 379. Upon the same statute the Utah 97 Doane v. Lake, 32 Me. 268, territorial court reached the oppo
52 Am. Dec. 654; Lowery v. site conclusion in the case of Cou- Hawker, 22 N. D. 318, 37 L. R. A. lam v. Doull, 4 Utah 267, 9 Pac. (N. S.) 1143, 133 N. W. 918. 568, and this opinion was affirmed
ever, has certain rights given him under the statutes, generally that he shall take the same share of the estate as if the testator had died intestate. But his remedy to enforce the right seems to be quite different in the various jurisdictions. In some the remedy is to appear in the proceeding and demand a distribution of the estate ;98 to move the court to proceed with the administration of the estate and to set over to him his share the same as if the testator had died intestate ;99 or to institute any proper action, such as an action in partition,2 writ of entry, or ejectment.* A bill in equity may be maintained to establish his rights or they may be asserted in an action to quiet title. Such omitted child may also recover
98 Lowery v. Hawker, 22 N. D. until after distribution.-Bunce v. 318, 37 L. R. A. (N. S.) 1143, 133 Bunce, 27 Abb. N. C. 61, 20 N. Y. N. W. 918.
Civ. Pro. R. 332, 14 N. Y. Supp. 99 Barker's Estate, 5 Wash. 390, 659. 31 Pac. 976.
2 Breidenstein v. Bertram, 198 1 Newman v. Waterman, 63 Wis. Mo. 328, 95 S. W. 828; Gage v. 612, 53 Am. Rep. 310, 23 N. W. 696, Gage, 29 N. H. 533; Udell v. holding, however, that where the Stearns, 125 App. Div. 196, 109 omitted child was of full age and N. Y. Supp. 407. had appeared in the proceedings Afterborn children omitted from establishing the will, he could not the will may maintain partition recover land that had been de- against the grantee of the father vised.
who took under the will.-Obecny Time for commencing action- V. Goetz, 116 App. Div. 807, 102 The statute permitting a preter
N. Y. Supp. 232. mitted child to "recover the por
3 Gage v. Gage, 29 N. H. 533. tion of the estate to which he 4 McCracken V. McCracken, 67 would be entitled from the dev. Mo. 590; Cox v. Cox, 101 Mo. 168, isees and legatees in proportion 13 S. W. 1055; Smith v. Robertto and out of the part devised and son, 89 N. Y. 555. bequeathed to them by such will,” 5 Branton v. Branton, 23 Ark. does not mean that the action can 569; George v. Robb, 4 Ind. Terr. not be brought until after the es- 61, 64 S. W. 615. tate is distributed, or that the 6 Rowe v. Allison, 87 Ark, 206. right of action does not accrue 112 S. W. 395. II Com. on Wills—7
from each devisee the portion which the devisee is bound to contribute without making other devisees parties to the suit.? He can not, however, claim his share from each devisee, but is only entitled to contribution sufficient to give him that portion to which he would have been entitled if there had been no will.
An omitted child can not appear and contest the probating of the will on the ground of the omission, as his rights are independent of the will and are unaffected by it.” Neither has he the right to have the will set aside, 10 although there are cases holding that the probate may be revoked and the will set aside. 11
7 Haskins v. Spiller, 1 Dana (31 Ky.) 170.
The share which a child omitted from the will would have received by inheritance must be made up by abatement of the legacies and devises, the validity of the will and its admission to probate not being affected by the omission. Doane v. Lake, 32 Me. 268, 52 Am. Dec. 654.
The share of an afterborn child provided for by Gen. Stats., p. 3760, par. 19, so far as the ascertainment thereof is concerned, is subject to the widow's dower in real estate and to her share as a distributee of the personal estate. -In re Miner, 65 N. J. Eq. 116, 55 Atl. 1102.
In ascertaining the share to which a pretermitted child is entitled, the amount or value of special or specific devises and legacies must be taken into account,
and each devisee or legatee must contribute in the proportion that his devise or legacy bears to the entire estate. Dower, homestead, and a year's support will not be excluded from the distributed fund where the widow has waived those rights. — Ensley V. Ensley, 105 Tenn, 107, 58 S. W. 288.
8 Smith v. Steen, 20 N. M. 436, 150 Pac. 927.
9 McIntire v. McIntire, 64 N. H. 609, 15 Atl. 218; Lowery V. Hawker, 22 N. D. 318, 37 L. R. A. (N. S.) 1143, 133 N. W. 918.
10 Branton v. Branton, 23 Ark. 569; Schneider v. Koester, 54 Mo. 500; Cox v. Cox, 101 Mo. 168, 13 S. W. 1055; Barker's Estate, 5 Wash. 390, 31 Pac. 976.
11 Hughes V. Hughes, 37 Ind. 183; Morse v. Morse, 42 lnd. 365; Myers v. Barrow, 3 Ohio Cir. Ct. R. 91, 2 Ohio C. D. 52.