Ray's Estate, In re

• Decision Date: 27 June 1952
• Docket Number: No. 3673,3673
• Citation: 245 P.2d 990,69 Nev. 204
• Parties: In re RAY'S ESTATE. Petition of BARRINGER.
• Court: Nevada Supreme Court

Page 990

245 P.2d 990

69 Nev. 204

In re RAY'S ESTATE.

Petition of BARRINGER.

No. 3673.

Supreme Court of Nevada.

June 27, 1952.

Rehearing Denied July 17, 1952.

John G. Cope, Las Vegas, Woodburn, Forman and Woodburn, Gordon R. Thompson, Reno, for appellant.

Hawkins & Cannon, Las Vegas, for respondent.

MERRILL, Justice.

Respondent Robert E. Barringer filed a petition in the proceedings below seeking his share of this estate as pretermitted heir of the decedent. The petition was granted in the lower court and this appeal (from that order and from order denying new trial) has been taken by Carlita Nancy Ray, minor child of the decedent and one of the principal beneficiaries under his last will. Barringer's rights are asserted under § 9919, N.C.L.1929 which provides: '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.'

Barringer was not named in the will of testator. Appellant contends that provision was made for him under the will to the extent of $1 by virtue of a general exclusion clause and that the will upon its face demonstrates the intent of the testator to omit to provide further for him.

The facts show that in September, 1901 decedent was married under his then name of Melvin A. Barringer and that on June 18, 1902 respondent Robert E. Barringer was born of this marriage in Chicago, Illinois. Shortly after the marriage and prior to respondent's birth, decedent was confined to the Missouri state penitentiary where he remained until February, 1906. During the period of confinement his then wife secured a divorce. Following his release he visited his former wife on several occasions and throughout the years had occasional contacts with his son. The two actually saw each other no more than five or six times, the last such occasion being in 1929 or 1930. The last contact between the two was by telephone conversation in 1946.

On May 8, 1946 decedent, having established his residence in California and changed his name to Carl Ray, was married to Ida Angelot Ray. Subsequently the parties adopted a child, the appellant herein, who at the time of filing petition for probate below was 28 months old. On April 22, 1949 in Los Angeles, California, at the age of 80 years decedent executed his last will, describing himself as a resident of Las Vegas, Nevada. On July 21, 1949 he died in Los Angeles and the will subsequently was admitted to probate in the proceedings below.

The will specifies cash bequests of $6,000 with the residue left in trust for the principal benefit of the widow and minor child. The document obviously was carefully drawn, specifying in detail the properties to be included in the trust estate, the powers of the trustees and the manner in which the income was to be disbursed. Paragraph tenth of the will provides: 'If any devisee, legatee or beneficiary under this Will, or any person claiming under or through any devisee, legatee, or beneficiary, or any other person who, if I died wholly or partially intestate, would be entitled to share in my estate, shall, in any manner whatsoever, directly or indirectly, contest this Will or attack, oppose or in any manner seek to impair or invalidate any provision hereof, or shall, in any manner whatsoever, conspire or cooperate with any person or persons attempting to do any of the acts or things aforesaid, or shall settle or compromise, directly or indirectly, either in or out of court, with any such contestant, or shall acquiesce in or fail to oppose such proceedings, or shall endeavor to succeed to any part of my estate, otherwise than through this Will, then in each of the above mentioned cases I hereby bequeath to such person or persons the sum of One Dollar ($1.00) only, and all other bequests, devises and interests in this Will given to such person or persons shall be forfeited and shall be distributed pro rata among such of my devisees, legatees and beneficiaries as shall not in any manner have participated in, and as shall have opposed such acts or proceedings.'

In 1 Page On Wills, 967, § 526, with reference to the statutory protection of pretermitted heirs, it is stated: '* * * Statutes of this class were originally framed on the theory that a testator who neither provided for his children, nor expressly indicated his intention not to provide for them, must have omitted to provide for them through inadvertence; and that his probable intention could best be enforced by giving the omitted children such share as they would have taken had testator died intestate. They are thus based on the theory of mistake; and, in the cases to which they apply, they reverse the general rule that a testator is presumed to know the contents of his will, and to intend that effect shall be given thereto.'

Under the provisions of § 9919, N.C.L. two questions are presented for our consideration: First: whether the will through paragraph tenth has 'provided' for Barringer. Second: if not, whether the will demonstrates that such omission to provide was intentional. If either question be answered in the affirmative, then Barringer has failed to establish himself as a pretermitted heir.

Upon these two questions authority is in a state of confusion far from helpful. The two questions themselves frequently are confused and indiscriminately considered. Attempts to reconcile the many decisions have been made, See: Annotations, 152 A.L.R. 723, 65 A.L.R. 472; But see: 32 Ill.L.R. 1, and are here urged upon us by appellant. However the lack of consistency with which lines of distinction are drawn by the courts themselves detracts greatly from the usefulness of the authorities cited to us and, we feel, renders a full discussion of them of little value to this opinion. We cannot escape the conviction that the widespread split of authority is due in some part to the varying degrees to which the several courts may feel impelled to question the wisdowm of the statutory theory and presumption of mistake under present day conditions; or may regard it as an infringement upon freedom of testation to be carefully hedged about with safeguards. The wisdom of such statutory provisions has been expressly questioned. See: 31 Calif.L.R. 263; 29 Col.L.R. 748. Indeed, it may well be that, assuming a child was truly forgotten, the statutory provisions are over-liberal. In point of fact as opposed to theory, a child so lightly regarded by the testator and so remotely an object of his bounty as to be completely forgotten, might not reasonably expect to have received a full intestate share had he been remembered. The statute may then be said (in the absence of mistake, fraud or undue influence) to frustrate testamentary intent more frequently than it may be said fairly and truly to supply it. These considerations, however, would appear to be clearly legislative rather than judicial. In the absence of apparent testamentary intent it is not within the judicial province to substitute therefor our own views as to the proprieties and needs of each individual case and to modify or exclude application of the statutory presumption accordingly.

The nature and weight of the presumption created by our own statute has already been carefully considered by this court In re Parrott's Estate, 45 Nev. 318, 330, 203 P. 258, 261. There it was held that failure to provide for a child 'raises the presumption that [the] omission from the will was unintentional.' It was stated: 'Before this presumption can be overthrown and the contrary intention established in point of law, it must appear from the face of the will that the intention to omit appellant is expressed therein or implied in language so strong as to render any other conclusion unreasonable. If the import of the language of the will is not plain enough to warrant such conclusion,...