Brown v. Brown

• Decision Date: 17 February 1904
• Docket Number: 13,316
• Parties: EDWARD BROWN ET AL. v. N. S. BROWN ET AL
• Court: Nebraska Supreme Court

98 N.W. 718

71 Neb. 200

EDWARD BROWN ET AL. v. N. S. BROWN ET AL

No. 13,316

Supreme Court of Nebraska

February 17, 1904

ERROR to the district court for Hamilton county: SAMUEL H SORNBORGER, JUDGE. Reversed.

REVERSED.

Hainer & Smith, for plaintiffs in error.

J. H Edmondson, M. F. Stanley and O. A. Abbott, contra.

ALBERT C. GLANVILLE, C., concurs. FAWCETT, C., not sitting.

OPINION

ALBERT, C.

On the 18th day of February, 1901, an instrument purporting to be the last will and testament of Henry S. Brown, deceased, was admitted to probate in the county court of Hamilton county. The testator was the father of 13 children, ten of whom survived him. Three of his sons, George A., Hamilton J. and Albert H., died before the execution of the will. The first left four children, namely, Carrie, Nellie, Ethel and George; the second left three, Jennie, Ettie and Charles; the third left two, George and Mabel. The will, after making provision for the payment of the debts of the testator and for the support of the surviving widow, contains the following provisions:

"I give and bequeath one hundred dollars ($ 100) each to the following, my grandchildren, to wit, Carrie Brown, Nellie Brown, Ethel Brown and George Brown, and being children of my deceased son, George W. Brown; and to Jennie Brown and Ettie Brown, being children of my deceased son, Hamilton J. Brown; and being in the aggregate to my said six grandchildren the sum of six hundred dollars ($ 600). * * * After the payment of all my just debts, and the payment of said legacies to my said wife and grandchildren, and the setting off to my said wife of said real estate hereinbefore specifically mentioned, I give, bequeath and devise all the rest, residue and remainder of my estate, both real and personal, of whatsoever it may consist and wheresoever situated, to such of the children of my own body begotten as shall survive me. Such surviving children to share the said residue of my estate share and share alike."

After the final report of the administrator with the will annexed had been filed, and before a hearing thereon, George and Mabel Brown, children of the deceased son, Albert H. Brown, by their next friend, filed a petition in the county court alleging, among other things, that "neither they nor their deceased father were mentioned by name in said will," but, "that they were included in the general designation of 'children of my own body begotten.'" The prayer is as follows:

"Wherefore your petitioners pray that the court construe and declare the true meaning and intent of said testator, and that your petitioners may be adjudged and decreed to be included under the words 'children of my own body begotten' and entitled to an undivided one-eleventh (1-11) part of the estate of said Henry S. Brown, deceased, as residuary devisees, subject to the other provisions in said will contained, and, in the event the court should determine that your petitioners were not included, or intended to be included, under the words, 'children of my own body begotten,' that they may be adjudged and decreed to be entitled to an undivided one-thirteenth (1-13) part of the entire estate of the said Henry S. Brown, deceased, subject only to the dower and homestead rights of the widow of the testator, Angelina Brown."

The court found against the petitioners, and dismissed their petition; an appeal was taken to the district court. In the meantime, on the 8th day of January, 1902, five children of the testator commenced a suit in the district court against the other five for a partition of the real estate of which the testator died seized, which proceeded to a final decree confirming the respective shares of the parties to that suit to such real estate. There were other parties to the suit, but it is unnecessary to mention them. A sale had been ordered, and notice thereof published. On March 22, 1902, and about two hours before the time fixed for the partition sale, George and Mabel Brown, children of the deceased son, Albert H. Brown, and petitioners in the proceeding brought in the county court for a construction of the will, filed a petition of intervention in the partition suit, which, save in some minor details not necessary to notice at this time, was substantially the same as that filed by them in the proceeding for a construction of the will. The plaintiffs and defendants in the partition suit joined in a motion to strike the petition of intervention from the files, for the reason that the application for intervention was too late, which motion was overruled. The plaintiffs and defendants then joined in a demurrer to the petition of intervention, which was also overruled. The plaintiffs and defendants then filed an answer to the petition of intervention, in which, after making a general denial, they set out the proceedings had for the probate of the will, insisting that, as no proceedings had been had or instituted to reverse, vacate or modify the decree admitting the will to probate, the questions raised by the petition of intervention were res judicata. The interveners filed a reply which amounts to a general denial. In the meantime the referees had made a sale of the lands, and on the 8th day of May, 1902, on the motion of all the parties, including the interveners, the sale was confirmed, and the referees were ordered to distribute the proceeds, except the sum of $ 2,000, which they were directed to hold to await the final decision of the court on the matters in litigation between the interveners and the other parties to the suit. Afterwards four of the plaintiffs, children of the testator, in open court withdrew all opposition to a decree in favor of the interveners, and asked the court to direct the payment to the interveners, out of the amount retained in the hands of the referees, of such portion thereof as should be deducted proportionately from the shares of the plaintiffs joining in such request, and the court entered an order in accordance with their request. Afterwards the appeal from the county court in the proceeding to construe the will and the suit between the interveners and the other parties to the partition suit having been consolidated, the issues in both were tried on the same evidence. The court held against the interveners on their contention as to the construction of the will, but held further that they had been unintentionally omitted from the will by accident or mistake, and were therefore entitled to a share of the estate by virtue of the provisions of section 149, chapter 23, Compiled Statutes (Annotated Statutes, 5014), relating to the omission of children or the issue of any deceased child from a will. Thereupon the interveners, over the objections of their opponents, were given leave to amend their petition of intervention in such a way as to make the allegation, "neither they nor their deceased father were mentioned by name in said will," read, "neither they nor their deceased father were mentioned by name in said will, but these petitioners were omitted therefrom by mistake or accident, unless they were included in the general designation of 'children of my own body begotten.'" It is unnecessary to go into details as to what followed the amendment. Eventually the parties were permitted to introduce evidence on the issues tendered by such amendment, and the court found in favor of the interveners, and entered a decree directing that the proportionate share should be paid from the proceeds of the sale retained by the referees. The defendants bring the record here for review on error.

An examination of section 149, supra, will dispose of some of the questions raised in this case; it is 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, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child or the issue of such child shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section."

One question arising under this section is, whether parol evidence is admissible to show whether the omission was intentional? The decisions of other courts, based on statutes of a similar character, are in conflict. Wilson v Fosket, 6 Met. (Mass.) 400, is a leading case in the affirmative. This case is reported and annotated in 39 Am. Dec. 736. To the same effect are the following: Lorieux v. Keller, 5 Iowa 196; Stebbins v. Stebbins, 94 Mich. 304, 54 N.W. 159; Moon v. Estate of Evans, 69 Wis. 667, 35 N.W. 20. In the last case, the doctrine appears to have been applied without question. Such evidence is held inadmissible in the following cases: Estate of Garraud, 35 Cal. 336; In re Estate of Stevens, 83 Cal. 322, 17 Am. St. Rep. 252, 23 P. 379; Bradley v. Bradley, 24 Mo. 311; Pounds v. Dale, 48 Mo. 270; Chace v. Chace, 6 R.I. 407. It is not easy to reconcile the doctrine of either line of authorities with the rule which requires the courts to give effect to the intentions of the testator because, in either case, a finding that the omission of a child or grandchild from the will was unintentional, is equivalent to a finding that the will does not reflect the intentions of the testator. When such fact is once established, what his intentions actually were becomes a matter of conjecture, because, had he made provision in the will for the pretermitted child, such provision of necessity would have resulted in a modification of the provisions made for the objects of his bounty Just how he would have modified the other bequests or devises to make provision for such child can rarely, if ever, be ascertained with certainty. However that may be, we are disposed to follow the...