although nothing can be received to add anything to a will plain and certain upon its face.90

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 § 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. 603, 101 N. W. 1089.

91 Chicago, B. & Q. R. Co. v. Wasserman, 22 Fed. 872.

It is not error to exclude evidence offered to show a parol disinheritance of a child born after the making of the will.-Burns v. Allen, 93 Tenn. 149, 23 S. W. 111.

Where a part of the will had been erased by drawing a line through it, and mention was made for an unborn child only in the erased part, the mere fact of erasure is no evidence that the testator intended to disinherit such child. Evidence of what the testator said at the time of erasure can not be received to prove an intention to disinherit.-Lurie v. Radnitzer, 166 Ill. 609, 57 Am. St. Rep. 157, 46 N. E. 1116.

92 Peet v. Peet, 229 Ill. 341, 11

Ann. Cas. 492, 13 L. R. A. (N. S.) 780, 82 N. E. 376.

See § 50.

While evidence as to the surrounding circumstances is often proper and sometimes indispensable to an intelligent construction of the language used by enabling the court to stand in the testator's place, still this would not authorize the admission of evidence as to what the testator said his intention was. The intention must be derived from the will itself. Lurie v. Radnitzer, 166 Ill. 609, 57 Am. St. Rep. 157, 46 N. E. 1116.

93 Woodvine v. Dean, 194 Mass. 40, 79 N. E. 882; Carpenter v. Snow, 117 Mich. 489, 72 Am. St. Rep. 576, 41 L. R. A. 820, 76 N. W. 78.

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.94 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

§ 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, how

270; Gage v. Gage, 29 N. H. 533; Chace v. Chace, 6 R. I. 407, 78 Am. Dec. 446; Burns v. Allen, 93 Tenn. 149, 23 S. W. 111; Bower v. Bower, 5 Wash. 225, 31 Pac. 598; Hill v. Hill, 7 Wash. 409, 35 Pac. 360; Morrison v. Morrison, 25 Wash 466, 65 Pac. 779.

96 Matter of Garraud's Estate, 35 Cal. 336.

Upon the same statute the Utah territorial court reached the opposite conclusion in the case of Coulam v. Doull, 4 Utah 267, 9 Pac. 568, and this opinion was affirmed

in 133 U. S. 216, 33 L. Ed. 596, 10 Sup. Ct. 253. The United States Supreme Court took occasion to severely criticise the California leading case.

The law as laid down in Matter of Garraud is followed, but adversely criticised, in Estate of Stevens, 83 Cal. 322, 17 Am. St. Rep. 252, 23 Pac. 379.

97 Doane v. Lake, 32 Me. 268, 52 Am. Dec. 654; Lowery V. Hawker, 22 N. D. 318, 37 L. R. A. (N. S.) 1143, 133 N. W. 918.

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,1 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. 318, 37 L. R. A. (N. S.) 1143, 133 N. W. 918.

99 Barker's Estate, 5 Wash. 390, 31 Pac. 976.

1 Newman v. Waterman, 63 Wis. 612, 53 Am. Rep. 310, 23 N. W. 696, holding, however, that where the omitted child was of full age and had appeared in the proceedings establishing the will, he could not recover land that had been devised.

Time for commencing action— The statute permitting a pretermitted child to "recover the portion of the estate to which he would be entitled from the devisees and legatees in proportion to and out of the part devised and bequeathed to them by such will," does not mean that the action can not be brought until after the estate is distributed, or that the right of action does not accrue II Com. on Wills-7

until after distribution.-Bunce v. Bunce, 27 Abb. N. C. 61, 20 N. Y. Civ. Pro. R. 332, 14 N. Y. Supp. 659.

2 Breidenstein v. Bertram, 198 Mo. 328, 95 S. W. 828; Gage v. Gage, 29 N. H. 533; Udell v. Stearns, 125 App. Div. 196, 109 N. Y. Supp. 407.

Afterborn children omitted from the will may maintain partition against the grantee of the father who took under the will.-Obecny v. Goetz, 116 App. Div. 807, 102 N. Y. Supp. 232.

3 Gage v. Gage, 29 N. H. 533. 4 McCracken v. McCracken, 67 Mo. 590; Cox v. Cox, 101 Mo. 168, 13 S. W. 1055; Smith v. Robertson, 89 N. Y. 555.

5 Branton v. Branton, 23 Ark. 569; George v. Robb, 4 Ind. Terr. 61, 64 S. W. 615.

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

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.8

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,1o 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,

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 Ind. 365; Myers v. Barrow, 3 Ohio Cir. Ct. R. 91, 2 Ohio C. D. 52.