Coulam v. Doull

• Decision Date: 27 January 1890
• Citation: 10 S.Ct. 253,33 L.Ed. 596,133 U.S. 216
• Parties: COULAM et al. v. DOULL
• Court: U.S. Supreme Court

133 U.S. 216

10 S.Ct. 253

33 L.Ed. 596

COULAM et al. v. DOULL.

January 27, 1890.

[Statement of Case from pages 216-218 intentionally omitted] John A. Marshall, for appellants.

[Argument of Counsel from pages 219-224 intentionally omitted] Ben Sheeks and J. L. Rawlins, for appellee.

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. 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 in- tentional, 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 ...