Under the statute of Utah enacting that when a testator omits to
provide in his will for any of his children or the issue of any
deceased child, such child or issue of a child shall have the same
share in the estate it would have had had the testator died
intestate "unless it shall appear that such omission was
intentional," the intention of the testator is not necessarily to
be gathered from the will alone, but extrinsic evidence is
admissible to prove it.
A statute of Massachusetts touching wills in which the testator
fails to make provision for a child or children or issue of a
deceased child in being when the will was made, was substantially
followed by the Legislature of California, and, as enacted in
California, was followed in Utah. In Massachusetts, it received a
construction by the Supreme Judicial Court of the state which the
Supreme Court of California had, before the adoption of the statute
in Utah, declined to follow. In a case arising under the statute of
Utah,
held that the court was at liberty to adopt the
construction which was in accordance with its own judgment, and
that it was not obliged to follow the construction given to it by
the Supreme Court of California.
John Coulam of Salt Lake City, in the County of Salt Lake and
Territory of Utah, died at that place on the 20th day of May, A.D.
1877, leaving him surviving, his widow, now Ann Doull, she having
since his death intermarried with one George Doull, and John
Coulam, George Coulam, Henry Coulam, Fanny Baker and Sarah J.
Heiner, his children and
Page 133 U. S. 217
only heirs at law. At the time of his death, the said John
Coulam was seized in fee simple, and in possession, of the
following described real property, to-wit:
"All of lot No. six (6), in block fifty-nine (59), in plot 'B,'
Salt Lake City survey, in the City and County of Salt Lake and
territory aforesaid, with the tenements and appurtenances thereunto
belonging."
He left a last will and testament, which was duly admitted to
probate, and was as follows:
"I, John Coulam, being of sound mind and memory, do make and
publish this my last will and testament in manner and form
following: I give and bequeath unto my beloved wife, Ann Coulam,
all my personal property and real estate, to-wit, the sum of one
thousand and twenty-five ($1,025) dollars, held in trust by Wells,
Fargo & Co., and now due me from the Hon. William A. Hamill by
note now in my possession, and I also give and bequeath unto my
said beloved wife Ann my freehold estate known and recorded as lot
six (6), block fifty-nine (59), plot 'B,' Salt Lahe City survey,
with all the messuages, tenements and appurtenances thereunto
belonging, and all the rest, residue and remainder, and all the
debts accruing to me, of my personal estate, goods and chattels of
what kind and nature soever I give and bequeath the same to my said
beloved wife, and I hereby revoke all former wills by me made."
Upon the 2d of November, 1885, the children of the testator and
one Zera Snow brought an action in the District Court of the Third
Judicial District of the territory to recover an undivided interest
in the real estate above described, the children claiming, as heirs
at law, three-quarters of the estate, real and personal, of Coulam,
deceased, and Zera Snow, as owner by conveyance from said heirs at
law made since the death of John Coulam, an undivided one-fourth
part of the real estate in question, the plaintiffs together
averring title to an undivided three-quarters thereof.
The complaint set up the will and alleged
"that in or by said will said John Coulam, testator, omitted to
provide for any of his said children, the said plaintiffs; that it
does not appear that said omission was intentional."
The defendant answered,
Page 133 U. S. 218
and denied
"that the omission of said decedent testator to provide in his
said will for his said children was not intentional on the part of
said testator, and, on the contrary, alleges that said omission was
intentional on the part of said testator and so appears."
A jury having been expressly waived, the cause was heard by the
court.
Upon the trial, evidence was offered on behalf of the defendant,
and admitted over the objection of the plaintiffs, tending to show
that before and after and at the time of the execution and
publication of the will, and up to the time of his death, the
testator was in full possession of his faculties and of sound and
perfect memory; that he had no other property when the will was
executed or at his death than that mentioned in the will; that he
had previously personally prepared the drafts of two other wills,
which he called for and which were before him when the will in
question was drawn, both of those prior wills being in his own
handwriting and signed by him, and omitting to provide for his
children; that the instrument in question was drawn by a Mr.
Campbell, to whom the testator gave instructions as to what it
should contain; that the testator's wife, the defendant in this
action, had lived with him for nearly thirty years, had raised his
children, the youngest from babyhood, and had worked hard and
helped make the money with which the houses upon the lot were
built; that the children had all attained maturity, were married,
and had homes of their own, chiefly bestowed on them by the
testator and his wife, and were in comfortable circumstances, and
that his daughters and sons were in daily attendance upon him
during his last illness and when the will was drawn up and
executed. None of the evidence was offered for the purpose of
showing advancements.
The court thereupon rendered its decision in writing, and made
and filed the following finding of fact:
"That the omission and failure of John Coulam, senior, the
testator, to provide for any of his children, the said plaintiffs,
in his last will and testament was intentional on his part."
And the conclusion of law: "That the defendant is entitled to
recover herein."
Page 133 U. S. 219
Judgment was accordingly entered for the defendant, and the
cause was brought here on appeal.
Page 133 U. S. 224
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the 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.
Page 133 U. S. 225
Under those statutes, a will or codicil, to "pass the estate of
the devisor," must be in writing, and by section one 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 lifetime, by
way of advancement, they shall take nothing in virtue of the
provisions of the three preceding sections."
Compiled Laws of 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
Page 133 U. S. 226
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 by evidence
aliunde.
The source of the statute under consideration was undoubtedly
that of Massachusetts upon the same subject, though it is said that
this particular 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 Wm. 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 etc., 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 lifetime
of their parents,"
"
Be it therefore enacted etc., that any child or
children not
Page 133 U. S. 227
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 lifetime."
1 Mass.Province Laws 429-430.
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. Mass.Stat. 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
lifetime."
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,
Page 133 U. S. 228
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 lifetime,
or unless it shall appear that such omission was intentional, and
not occasioned by any mistake or accident."
Rev.Stat.Mass. 1836, c. 62, § 21.
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
Met. 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
Page 133 U. S. 229
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 a child
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 Jarman on 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, vol. 2, § 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 Ad. & El. 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
Page 133 U. S. 230
marriage, the will shall be revoked,"
and that
"evidence not amounting to proof of republication cannot be
received in a court of law to show that the testator meant his will
to stand good notwithstanding 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
Page 133 U. S. 231
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 courts of the latter
state. The California act declared that, in case of the
omission
Page 133 U. S. 232
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
of California, 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
Matter of the Estate of 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.
Page 133 U. S. 233
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.