Boman v. Boman

• Decision Date: 25 January 1892
• Parties: BOMAN et al. v. BOMAN.
• Court: U.S. Court of Appeals — Ninth Circuit

49 F. 329

BOMAN et al. v. BOMAN.

United States Court of Appeals, Ninth Circuit.

January 25, 1892

Andrew F. Burleigh, for appellants.

Junius Rochester, for appellee.

Before DEADY, HAWLEY, and MORROW, District Judges.

HAWLEY District Judge.

This action was instituted to compel respondent to render an account as executrix of the estate of George M. Boman deceased, and to pay to plaintiffs the amount which they, as children of the deceased, are legally entitled to receive. The complaint, among other things, alleges that plaintiffs are citizens of the state of Tennessee; that defendant is a resident of the state of Washington; that, in 1861, George M Boman, now deceased, was married to Armilda C. Ramsey, both parties being at that time resident of the state of Tennessee; that plaintiffs are the issue of said marriage and children of the said George M. Boman, born, respectively in the years 1862 and 1864; that on the 1st day of December, 1890, in the county of Kings, state of Washington, the said George M. Boman made his last will and testament, a copy of which is annexed to and made a part of this complaint; that on the 19th day of December, in the state of Washington, the said George M.Boman, husband of the said defendant, died, leaving surviving him two children, viz., the plaintiffs herein; that at the time of his death he was possessed of an estate of about $200,000; that neither the plaintiffs nor their descendants have had any proportion of his estate bestowed upon them, or either of them, in his life-time, by way of advancement or otherwise; that he did not name the plaintiffs, or either of them, in his will, nor did he make any provision for them, or either of them, therein, or otherwise howsoever. The defendant demurred to this bill of complaint upon the ground that it did not state a case entitling plaintiffs to any relief against defendant. This demurrer was sustained, and, plaintiffs declining to amend their bill, judgment was rendered against them for costs, from which judgment plaintiffs appeal.

The questions to be considered upon this appeal call for an interpretation of certain clauses in the will, and a construction of certain provisions of the statute of Washington. The will reads as follows:

'Item 1st. I give, bequeath, and devise to each of my heirs at law the sum of one dollar. Item 2nd. I give, bequeath, and devise all the rest, residue, and remainder of my estate and property of every kind, real, personal, and mixed, and choses in action, to my beloved wife, Mary E. Boman. Item 3rd. I nominate and appoint my said wife, Mary E. Boman, sole executrix of this will, and I will and devise that she execute this will without giving any bond. Item 4th. I will and devise that my said executrix execute this will, pay all my just debts and funeral expenses, and settle my estate in her own way, without the intervention of probate court or any court; and I will and devise that the title to all of my said estate and property vest upon the probate of this will, without any judgment or order of the court to that end, in my said wife, Mary E. Boman.'

Sections 1325 and 1326 of the Code of Washington, relating to wills, read as follows:

'Sec. 1325. If a person make his last will, and die, leaving a child or children, or descendants of such child or children, in case of their death, not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, so far as he shall regard such child or children, or their descendants, not provided for, shall be deemed to die intestate, and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees, and legatees shall refund their proportional part. Sec. 1326. If such child or children, or their descendants, shall have an equal proportion of the testator's estate bestowed upon them in the testator's life-time, by way of advancement, they shall take nothing by virtue of the provisions of the preceding sections. ' Code Wash. 1881, p. 235.

How should section 1325 be construed? This provision is identical with the statutes of Missouri and of Oregon, and we must therefore look to the decisions of these states to ascertain its proper judicial construction. Prior to the adoption of the Washington Code, it had been decided by the supreme courts of Missouri and Oregon that the statute did not require that any actual provision should be made for the children, nor that the children should be necessarily designated by name. The object and intent of the statute was to provide against the children of a testator, or descendants of such child or children, from being overlooked or forgotten. The fact that the children are not named or alluded to in such a manner as to affirmatively show that they were in the testator's mind will furnish conclusive evidence that they were forgotten, and that the testator unintentionally left them unprovided for. Wetherall v Harris, 51 Mo. 68; Gerrish v. Gerrish, 8 Or. 351. The statute creates a presumption that the children were forgotten unless they are named or provided for in the will. Pounds v. Dale, 48 Mo. 273. RICHARDSON, J., in delivering the opinion of the court in Hockensmith v. Slusher, 26 Mo. 237, said that the object of this provision of the statute 'is to produce an intestacy only when the child, or the descendants of such child, are unknown or forgotten, and thus unintentionally omitted; and the presumption that the omission is unintentional may be rebutted when the tenor of the will, or any part of it, indicates that the child or grandchild was not...