Coulam v. Doull

4 Utah 267

• Court: Utah Supreme Court
• Decided: January 15, 1886
• Status: Published

Opinion

POWERS, J.:

The appellants brought action in the court below to recover an undivided interest in real estate. Parties plaintiff and defendant claim from a common source of title, viz., one John Coulam, who died testate in 1877. His will reads 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. Hammill, 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), plat “B,” Salt Lake City survey, with all the messuages, tenements, and appurtenances tbereunto belonging; and all the rest, residue, and remainder, and all 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.”

The will was executed, witnessed and published in conformity with the provisions of the statute. The plaintiffs are the children of the deceased, and the will ignoring them, they base their claim to' a portion of the property devised upon section 694 of the compiled laws of Utah, which is as follows:

“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 stick, 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.”

This statute, found on page 272, Comp. Laws, is conceded to be applicable to the case at bar, and no contest is made over the amount of interest claimed by plaintiffs. The answer makes an issue on advancements, under sections 696 of Comp. Laws of Utah, but this issue, on the trial, was waived by defendant, and the only issue in the case as tried was whether the omission of the testator to provide for his children appeared to be intentional.

On the part of the appellants it is contended that the omission of the testator to provide in his will for his children, by virtue of the statute annexes to the will the condition that the will shall be void, quoad the children, unless a contrary intention appears by intrinsic evidence, and that the operation of this rule of law is altogether independent of the intention of the testator, except as that intention may be expressed in the will.

On the part of respondent it is contended that the intention of the testator to omit to provide for his children can be shown by extrinsic as well as intrinsic evidence; and this position was adopted by the learned judge who presided at the trial of this case in the lower court, and in pursuance thereof extrinsic evidence, tending to show the intent of the testator, was admitted over the appellants’ objection, and this ruling of the court furnishes the principal assignment of error in this case. -

We do not think the court erred in admitting the evidence. Generally, the admissibility of extrinsic evidence depends upon whether there is, in respect to the written instrument, a patent or a latent ambiguity; such evidence being admitted in case of the latter, but not the former: Greenl. Ev., sec. 297. A patent ambiguity arises solely from the terms of the instrument, while a latent ambiguity is one not appearing upon the face of the instrument, but is developed by extrinsic evidence: 2 Whart. Ev., sec. 956.

In the latter case, the difficulty introduced by extrinsic evidence may be explained by further evidence on the same subject, showing the real intent: Atkinson v. Cummings, 9 How., 479; Lillotson v. Race, 22 N. Y., 122-126. The will is, in this case, free from any patent ambiguity. Looking at the will alone, the intention is clear that the defendant should have the property. The doubt, which alone the evidence was admitted to resolve, was created by the fact, extrinsic the will, introduced by appellants, that they were the -children of the testator. This fact established dehors the will, coupled with the omission of the testator in his will to provide for children, has the effect, under the statute (Comp. Laws, sec. 694), to raise the presumption that the testator had made the omission through some inadvertence or mistake, and not to defeat the real intention of the testator, that the statute was enacted: Church v. Crocker, 3 Mass., 20; Wilson v. Fosket, 6 Met., 400; Payne v. Payne, 18 Cal., 291.

This presumption of mistake is made a disputable one by the express words of the statute, “unless it shall appear that such omission was intentional;” or, as in the statutes of Massachusetts and Iowa, “unless it shall appear that such omission was intentional, and not occasioned by any accident or mistake:” Comp. Laws, 694. The legislation in Massachusetts is really the source of all the statutes of the different states upon the subject. The earlier statute was adopted in Missouri and in some other states, and the latter, including the qualifying clause above set forth, was adopted in Iowa, California and Utah. In Missouri, the statute was absolute and the presumption conclusive that the child should inherit unless provided for in the will. However, it was held that the presumption did not arise if it could be seen from the will that the child had not in fact been forgotten: Church v. Crocker, 3 Mass., 20; Bradley v. Bradley, 24 Mo., 311. If under our statute the matter to repel the presumption must appear upon the face of the will, then the clause “unless it shall appear that such omission was intentional” is superflous. We think that the statute opens the door for the admission of any cOm-IJetent evidence. The effect of extrinsic evidence in a case like the one at bar is not to change, alter, add to, or control any of- the terms of the will. It simply shows that the will is what it purports to be, and that the omission of the children was intentional. The cases cited by counsel for appellant upon this jjoiiit are inapplicable, because in each the parol evidence was offered to change the plain meaning of the words used in the will, as that “money” meant “promissory notes:” Mann v. Executors, etc., 1 Johns. Ch. 231; or that while describing one tract of land another was meant: C. & A. R. R. Co. v. Randolph, 53 Ill. 514; or that by “The Seaman’s Aid Society in the city of Boston,” the testator intended “The Seaman’s Friends Society: Tucker v. Seaman's Aid Society, 7 Met. 188, both existing.

The Missouri cases are not authority under our statute. The statute in that state was absolute. The court, in Bradley v. Bradley, 24 Mo. 315, says: “Our statute is not like the Maisachusetts statute; for this has the provision in it, unless it shall appear that such omission was intentional, etc.: Wilson v. Fosket, 6 Met. 404. We are not able to reason ourselves clear from the effect of our statutes by anything said upon the subject by the Massachusetts courts; ours is a positive enactment, no proviso to it on account of mistake or intentional omission.”

We think that our statute and the statutes of Massachusetts, Iowa, and California are in substance, meaning, and purpose precisely the same. Massachusetts was the original source from which it was derived and adopted. Before its adoption in California or in this territory it had received an interpretation in Massachusetts and Iowa: Wilson v. Fosket, 6 Met. 400; Lorieux v. Keller, 5 Iowa, 196, 203.

It was said in Lorieux v. Keller that “ their [the children’s] right, if any, must first accrue on the death of the testator. They do not claim under the will, but in opposition to it, and they are seeking to supersede it. The declaration of the testator at the time of executing the will, that he had already given to his daughter, Madeline Keller, her portion of his property, and that he intended to make no further provision for her, were certainly proper to show the intention of the testator in the disposition of his property by his will. These declarations in no sense contradict, add to, or explain the contents of' the will. They were not offered for any such purpose, but to show the circumstances under which the will was executed, and the relations of the testator to persons and things around him. Parol evidence certainly cannot be given to change the provisions of the will from the construction which the letter of the testament and the law gives it. It cannot be varied, altered, or explained in such mode. While we agree in holding this to be the law, we must also hold that parol evidence is admissible when its introduction is required by evidence extrinsic of the will, when it tends to establish or sustain the will, or when it consists of declarations of the testator, made at the time of its execution, contemporary with the act, and showing its legal quality. Such are parts of the res gestee.”

“It is not contended but that it was competent for the plaintiff, when his rights under the will are brought in question, in some manner to establish the fact that the omission by the testator to make provision in his will for bis children was intentional, and not the result of accident. How may he show it? Must it appear from the will itself? The argument of the appellants would preclude its being shown in any other manner. We are of the opinion that it may be shown in any legitimate mode, by extrinsic evidence, either written or parol, by the declarations of tbe testator, at tbe time of executing tbe will, or by any act, circumstances, or admissions of tbe party, wbicb will go to sbow tbat tbe defendants bave received tbeir portion of tbeir father’s estate, or tbat be intended to pass them by in bis will.”

Tbe reasoning of tbe court seems to us to be conclusive and its conclusions sound. But it is argued tbat we took tbe section of tbe statute under consideration from California, and tbat it bas received a different construction in tbat state, and that our legislature must be presumed to bave adopted tbe statute with tbe construction put upon it by .the courts of California. This rule is not absolute: Cathcart v. Robinson, 5 Pet., 264. Tbe statute, as we bave seen, was construed by Massachusetts and Iowa before it was adopted in California, and tbe California decision seems to us to be opposed to tbe weight of authority and of sound reason, and to be a departure from tbe prevailing interpretation. The case referred to is Matter of Estate of Gerraud, 35 Cal., 342. It assumes tbat tbe object of admitting extrinsic evidence in cases of this kind is to alter tbe terms of tbe will. Tbe contrary is tbe case, for tbe evidence simply confirms and gives effect to tbe will. It attempts to distinguish tbe California from tbe Massachusetts statute, saying on page 342: “Tbe case of Wilson v. Foskel, 6 Met., 400, is cited as authority in point to support the views of respondent’s counsel. The Massachusetts statute differs very materially from ours, and tbe concluding clause-is as follows, to-wit: ‘Unless it shall appear tbat such omission was intentional, and not occasioned by any mistake or accident.’ The last part of tbe clause is not found in our act, and we think it tbe key to tbe decision in Wilson v. Fosket. It opens tbe door for proof on tbe question whether or not tbe omission resulted from mistake or accident.”

We think tbat tbe words “unless it shall appear tbat such omission was intentional,” found in tbe Utah statute, opens tbe door for proof just as wide as if there bad been added the words, “and not occasioned by accident or mistake.” We prefer to follow what seems to be tbe better reason, supported as it is by tbe weight of authority, and not to bold that tlie testimony objected to was admissible. As supporting our conclusion, we call attention to tbe fact that the earlier English authorities, and the authorities in this country, hold that parol evidence is admissible to rebut the presumption of a revocation of a will arising from a subsequent marriage and the birth of a child: Brady v. Cubitt, Doug., 31; Brush v. Wilkins, 4 Johns. Ch., 506. Chancellor Kent says in his commentaries that “it is generally agreed that the implied revocation by a subsequent marriage, and a child, being founded on the presumption of intention, may be rebutted.”

2. The appellant also contends that the evidence admitted on the trial was insufficient to justify the finding that the testator intended to omit to provide for his children. It appears from the evidence that the mind of the testator was clear when he made the will. One of the witnesses swears that “he was as sensible as he ever was in his life.” He had previously prepared the drafts of two other wills, which were before him when the will in question was drafted. These were in his own handwriting, and signed by him, and he called for them when the will at bar was drafted. Both these drafts omitted to provide for his children. A Mr. Campbell drafted the will, and the testator gave instructions as to what it should contain. 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, had worked hard, and helloed to make the money with which the houses upon the lot were built.

The testator must have known that which is a matter of common knowledge, that his widow- would have no right of dower in his property, that not being allowed in this territory. The property mentioned in the will was all the testator had, and he knew that if his wife received it all it would furnish her with but meagre support during her old age. The children had all attained maturity, were married, had homes of their own (chiefly bestowed on them by the testator and the defendant, his wife), and they were in comfortable circumstances — perhaps bettér off than the widow of the testator would be if she got all his property. These and similar facts appearing in the record were all known to the testator when he made his will. That he did not forget his children, but that they mnst have been in his mind and intentionally omitted from his will appears from the fact that they had been omitted from the two previous wills, as well as this; that during this same illness, when he made the will, he sent for his daughters residing at a distance, to come to him, which they did, remaining some time, attending upon, him, and nursing him. During his illness his boys were in daily attendance upon him, and he always recognized them. In the afternoon, before the will was made, the testator requested the doctor to bring Mr. Campbell to prepare it, who came the next morning. During that night his son John sat up with him, and the next morning, before the will was made, but in contemplation, all the boys were in to see him; and Henry testifies that he then seemed better than usual. They were all in again that day, after the will was made, and every day until his death. Under such circumstances it is impossible not to believe that the will, giving all his property to his wife, to the exclusion of his children, was the deliberate and intentional act of the testator, done with a full comprehension of the situation. That it was a just act John recognized, as appears from the testimony of Mrs. Paddock. We think that these facts, when taken in connection with the will itself, show that the testator intentionally omitted to provide for his children: See Bulkley v. Gerard, 125 Mass., 8; Peters v. Siders, 126 Id., 185; Lorings v. Marsh, 6 Wall., 350. We have been greatly aided in the consideration and determination of this important question by the very able arguments of counsel for both sides, and the elaborate and exhaustive briefs presented.

Our conclusion is, that there is no error in the record, and that the judgment of the court below must be affirmed.

Zane, C. J., and Boreman, J., concurred.