Coulam v. Doull/Opinion of the Court

Accepting the finding of fact that the testator intentionally excluded his children from any share of the property disposed of by the will, respecting which, upon this record, there could be no doubt, the only question in the case is as to whether the court erred in admitting extrinsic evidence to establish that the omission to provide for the children was intentional. The solution of this question depends upon the proper construction of the statutes of Utah bearing upon the subject. Under those statutes a will or codicil, to 'pass the estate of the devisor,' must be in writing; and by section 1 of 'An act relating to the estates of decedents,' approved February 18, 1876, which is section 685 of the Compiled Laws of Utah of that year, 'every devise purporting to convey all the real estate of the testator' carried that subsequently acquired, 'unless it shall clearly appear by his or her will that he or she intended otherwise.' Sections 9, 10, and 12 are as follows: (693) 'Sec. 9. When any child shall have been born after the making of its parent's will, and no provision shall have been made for him or her therein, such child shall have the same share in the estate of the testator as if the testator had died intestate; and the share of such child shall be assigned as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.' (694) 'Sec. 10. When any testator shall omit to provide in his or her will for any of his or her children, or for the issue of any deceased child, unless it shall appear that such omission was intentional, such child, or the issue of such child, shall have the same share in the estate of the testator as if he or she had died intestate, to be assigned as provided in the preceding section.' (696) 'Sec. 12. If such child or children, or their descendants, so unprovided for, shall have had an equal proportion of the testator's estate bestowed on them in the testator's life-time, by way of advancement, they shall take nothing in virtue of the provisions of the three preceding sections.' Comp. Laws Utah, 1876, c. 2, tit. 14, pp. 270-272. Section 19 provides that in case of intestacy, if the decedent left a husband or a wife and more than one child, the estate of the decedent shall go, one-fourth to the surviving husband or wife for life, and the remainder, with the other three-fourths, to the children. It will be seen that section 12 applies to advancements during the lifetime of the testator, and section 9 to a child born after the execution of the will, no provision having been made for it therein. The child is to take its share as provided by law in case of intestacy, 'unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.' And section 10 relates to children in being, or the issue of any deceased child, at the time of the execution of the will, who are to take as in case of intestacy, 'unless it shall appear that such omission was intentional.' As to a child born after the making of the will, the intention to omit must be apparent from the will. As to children in being when the will is made, the statute does not say how it shall appear that the omission was intentional. But it is insisted on behalf of appellants that such intention is required in the latter case also to appear from the will, and cannot be shown byevidence aliunde.

The source of the statute under consideration was undoubtedly that of Massachusetts upon the same subject, though it is said that this part cular statute was taken from a similar one in California. The first and second sections of an act of the province of Massachusetts, passed in the year 1700, (12 W. 3,) with their preambles, read as follows: 'Forasmuch as it often happens that children are not borne till after the death of their fathers, and also have no provision made for them in their wills: Be it therefore enacted, &c., that as often as any child shall happen to be borne after the death of the father, without having any provision made in his will, every such posthumous child shall have right and interest in the estate of his or her father, in like manner as if he had died intestate, and the same shall accordingly be assigned and set out as the law directs for the distribution of the estates of intestates. And whereas, through the anguish of the deceased testator, or through his solicitous intention, though in health, or through the oversight of the scribe, some of the testator's children are omitted, and not mentioned in the will, many children also being borne after the makeing of the will, tho' in the life-time of their parents: Be it therefore enacted &c., that any child or children not having a legacy given them in the will of their father or mother, every such child shall have a proportion of the estate of their parents given and set out unto them as the law directs for the distribution of the estates of intestates: provided, such child or children have not had an equal proportion of his estate bestowed on them by the father in his life-time.' 1 Mass. Prov. Laws, 430. This provincial act was, in effect, repealed by an act of the commonwealth of Massachusetts, passed February 6, 1784, by which it was revised. the phraseology somewhat changed, and the preambles omitted. St. Mass. 1783, c. 24, §§ 1, 8. By the first section of this latter act any person seised in fee-simple of any estate is authorized to devise the same to and among his children or others, as he shall think fit, without any limitation of persons whatsoever. By the eighth section it is provided 'that any child or children, or their legal representatives in case of their death, not having a legacy given him, her, or them in the will of their father or mother, shall have a proportion of the estate of their parents assigned unto him, her, or them, as though such parent had died intestate: provided, such child, children, or grandchildren have not had an equal proportion of the deceased's estate bestowed on him, her, or them in the deceased's life-time.' The supreme judicial court held that the object of the statute was to furnish a remedy solely for those cases where, from accident or other causes, the children or grandchildren might be supposed to have been forgotten by the testator in making his will; and that whenever, from the tenor of the will, or any part of it, sufficient evidence appeared to indicate that the testator had not forgotten his children or grandchildren, as the case might be, when he made his will, they should not be entitled to a distributive share of his estate, although no legacy was given them by the will. Terry v. Foster, 1 Mass. 146; Wild v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17; Wilder v. Goss, 14 Mass. 357. Thus, although the statute provided that a child should take, notwithstanding its name was omitted, the court ruled that if, on the face of the will, it appeared that such omission was intentional, the child could not take; hence, whenever the will was silent, the child took; and to prevent that result, where such silence was by design, the statute was amended so as to read as follows: 'When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to if he had died intestate, unless they shall have been provided for by the testator in his life-time, or unless it shall appear that such omission was intentional, and not o casioned by any mistake or accident.' Section 21, c. 62, Rev. St. Mass. 1836. How appear? Evidently aliunde the will. If it must appear upon the face of the will that the omission was intentional, the words inserted in the statute were superfluous; for, if it did so appear, the child could not take, notwithstanding the provision that in case of omission it should take, inasmuch as the latter provision was only inserted to give the omitted child a share, not against the intention of the testator, but because of the presumption of an oversight. Hence in Wilson v. Fosket, 6 Metc. 400, the court held that, under the statute as amended, evidence dehors the will was admissible to establish that the omission was intentional; and such is the settled law of Massachusetts. Converse v. Wales, 4 Allen, 512; Buckley v. Gerard, 123 Mass. 8; Ramsdill v. Wentworth, 101 Mass. 125. In the latter case the court said. 'The operation of the statute is peculiar, but there is no violation under it of the rules of evidence. The only issue is whether provision was omitted in the will by design, and without mistake or accident. Parol evidence is admitted, although the result may change or modify the disposition of the testator's estate. The will is used to show that there is no legacy under it; and, however the issue may be established, there is no conflict with its terms.'

In Bancroft v. Ives, 3 Gray, 367, the statute of Massachusetts was held to apply to children born after the making of the will, and before the death of their father. The argument was pressed that the language, 'omit to provide in his will,' necessarily meant, and should be confined to, children living at the time of making the will. This argument was regarded by Chief Justice SHAW as plausible, but not sound, because, as a man's will is ambulatory until his decease, the time to which the question of omission applied was the time of the testator's death. If, therefore, he had then made no provision by his will, the case of the statute arose, for he had made a will, but left a child without having made any provision for such child.

By the Utah statute, however, specific provision is made for children born after the making of the will, and also for children in being, but omitted, when the will is made. Children born after the making of the will, but before the decease, inherit, unless it appears from the will that the testator intended that they should not. And this applies to posthumous children. Mr. Jarman lays it down that marriage and the birth of achild, conjointly, revoked a man's will, whether of personal or real estate, these circumstances producing such a total change in the testator's situation as to lead to a presumption that he could not have intended a disposition of property previously made to continue unchanged. But this effect is not produced where there is a provision made for both wife and children by the will itself, (Kenebel v. Scrafton, 2 East, 530;) or by a previous settlement providing for both, (1 Jarm. Wills, * 123, * 125.) Revocation, treated as matter of presumption merely, was thought, in Brady v. Cubitt, 1 Doug. 31, open to be rebutted by parol evidence, and this is guardedly conceded by Chancellor KENT in Brush v. Wilkins, 4 Johns. Ch. 506, and by Mr. Greenleaf, (2 Ev. § 684.) But, as is stated in a note to that section, the doctrine that the presumption is not conclusive has been overruled, upon great consideration, in the case of Marston v. Roe, 8 Adol. & E. 14, and Israell v. Rodon, 2 Moore, P. C. 51, in the former of which it was, among other things, resolved, that 'where an unmarried man, without children by a former marriage, devises all the property he has at the time of making his will, and leaves no provision for any child of a future marriage, the law annexes to such will the tacit condition that, if he afterwards marries, and has a child born of such marriage, the will shall be revoked;' and that 'evidence not amounting to proof of republication, cannot be r ceived in a court of law, to show that the testator meant his will to stand good, not withstanding the subsequent marriage and birth of issue; because these events operate as a revocation by force of a rule of law, and independent of the testator.' The subject is regulated in this country by the statutes of the several states and territories, marriage alone working revocation under some, and both marriage and birth of issue being required under others; while subsequently born children, unprovided for, are allowed to take, unless a contrary intention appears. But the provision we are considering concerns children in being when the will is made. As to children born after death, or the making of the will, the reason why the intention to omit them should appear on the face of the will is obvious. It is the same as that upon on which the doctrine of revocation rests,-the change in the testator's situation. But this reason loses its force, so far as children living when the will is made are concerned; and this explains the marked difference between the sections of the statute before us applicable to the two classes. The statute raises a presumption that the omission to provide for children or grandchildren living when a will is made is the result of forgetfulness, infirmity, or misapprehension, and not of design; but this is a rebuttable presumption, in view of the language employed, which negatives a taking contrary to an intentional omission, and at the same time leaves undefined the mode by which the affirmative purpose is to be established. Legal presumptions drawn by the courts, independently of or against the words of an instrument, may be, in some instances, repelled by extrinsic evidence, and this statutory presumption of an unexpressed intention to provide may be rebutted in the same way. Under section 12, a pretermitted child is entitled to no share if it has had an equal proportion by way of advancement; but it is not contended that this fact must necessarily appear from the will when that is not required by statute. Yet proof of advancements and of intentional omission alike defeat the claimant. The rule as to patent and latent ambiguities, so far as analogous, sustains the same conclusion. Where a devise is, on the face of it, clear and intelligible, yet from external circumstances an ambiguity arises as to which of two or more things, or of two or more persons, the testator referred to, it being legally certain that he intended one or the other evidence of his declarations, of the instructions given for his will, and of other circumstances of the like nature, is admissible to determine his intention.

The will in this case is entirely unambiguous. The testator's intention was that his wife should have the property. There being children at the time of the execution of the will, an ambiguity may be said to have been created, by operation of the statute, as to their having been intentionally omitted, which ambiguity evidence of the character named at once removed. Children so situated do not set up title under the will, but under the statute. The will is used to establish that they have no legacy or devise under it. Then the inquiry arises whether the testator intended to omit them. Evidence that he did, does not conflict with the tenor of the will. It simply proves that he meant what he said. Instead of tending to show the testator's real purpose to have been other than is apparent upon the face of the will, it confirms the purpose there indicated. The fact of the existence of children when a will is made is proven dehors the instrument; and since, under the statute, that evidence opens up a question as to the testator's intention, which, but for the statute, could not have arisen, and which by the statute is not required to be determined by the will, we cannot perceive why the disposal of it should be so limited.

It is contended that the statutory provision in question was copied from that of California, and that we are bound by the construction previously put upon it by the court of the latter state. The California act declared that, in case of the omission of the testator to provide in his will for his children, they should been titled to the same share as in case of intestacy, 'unless it shall appear that such omission was intentional.' Laws Cal. 1850, c. 72, § 17. In Payne v. Payne, 18 Cal. 291, 302, the supreme court of California, speaking through its then chief justice, Mr. Justice FIELD, said: 'The only object of the statute is to protect the children against omission or oversight, which not unfrequently arises from sickness, old age, or other infirmity, or the peculiar circumstances under which the will is executed. When, however, the children are present to the mind of the testator,-and the fact that they are mentioned by him is conclusive evidence of this,-the statute affords no protection, if provision is not made for them. The inference follows that no provision was intended;' and Terry v. Foster, Wild v. Brewer, Church v. Crocker, and Wilder v. Goss, supra, were cited. But in Re Garraud, 35 Cal. 336, it was held that evidence aliunde the will was not admissible to show that the omission to make provision for children was intentional; and, in respect to the Massachusetts decisions, the court was of opinion that the words, 'and not occasioned by any mistake or accident,' found in the statute of Massachusetts, but not in that of California, were very material, and furnished the real ground for the admission of extrinsic evidence. We do no think so. While those words may strengthen the argument in favor of the admissibility of the evidence, it by no means follows that the construction of the statute should be otherwise in their absence. The evidence which shows that the omission was intentional establishes that it was not through accident or mistake. Action purposely taken by one in the sufficient possession of his faculties, and not induced by fraud or undue influence, excludes in itself the idea of casualty or error.

We are satisfied that this particular phraseology was used out of abundant caution, as serving to render the proper construction somewhat plainer, and that the construction must be the same, although those words are not used. The rule ordinarily followed in construing statutes is to adopt the construction of the court of the country by whose legislature the statute was originally adopted, but we are not constrained to apply that rule in this instance. The original source of the statute is to be found in the legislation of Massachusetts. The supreme court of California declined to treat the received construction in Massachusetts as accompanying the statute, and forming an integral part of it, upon a distinction which we do not regard as well drawn. That construction commends itself to our judgment, and we hold that the supreme court of the territory properly applied it.

The evidence was competent, and the judgment must be affirmed.

Mr. Justice BREWER, not having been a member of the court at the time this case was considered, took no part in its decision.