which one went to his heirs or lineal descendants, another to his wife, and a third was at his own disposal; or if he died without a wife he might then dispose of one moiety, and the other went to his children; and so, e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal. But in modern. times, unless a statute otherwise provides, or a binding contract is made to the contrary, a testator is free to disinherit those who would take his estate in case of intestacy. A father may exclude his son from all share in his estate provided the estate is given to someone else, but a will expressly purporting to disinherit certain named heirs but not making any disposition of the property will not operate to disinherit the heirs named, and to give the estate to the other heirs." There is always a presumption against disinheritance, 10 and an heir can only be disinherited by the express words of a will, or by necessary implication of the intention to give the estate away from him.11 8 29. Statutes Protecting Children Not Named.-It is sometimes provided by statute that a child not named or provided for in his parent's will shall receive a share of the estate as in case of intestacy 12 unless such child shall have been provided for by the testator in his lifetime,13 or unless it appears that the omission was intentional and not occasioned by accident or mistake.14 Under such a statute it is gen 3. United States v. Perkins, 163 U. S. 625, 16 S. Ct. 1073, 41 U. S. (L. ed.) 287. 4. By the Louisiana code of 1808, a testator who had a child could not dispose of more than one fifth of his property. Patterson v. Gaines, 6 How. 550, 12 U. S. (L. ed.) 553. In Kansas a statute provides that a married person having no children may devise one half of his or her property to other persons than the husband or wife. In re Breen, 94 Kan. 474, 146 Pac. 1147, 4 A.L.R. 238. 5. See supra, par. 7 et seq. 6. In re Callaghan, 119 Cal. 571, 51 Pac. 860, 39 L.R.A. 689; Morgan v. Morgan, 30 App. Cas. (D. C.) 436, 13 Ann. Cas. 1037; Gore v. Clarke, 37 S. C. 537, 16 S. E. 614, 20 L.R.A. 465; Coffman v. Coffman, 85 Va. 459, 8 S. E. 672, 17 A. S. R. 69, 2 L.R.A. 848. And see supra, par. 10. 78, 72 A. S. R. 576, 41 L.R.A. 820; Odenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741, L.R.A.1916D 421 and note. 8. Boisseau v. Aldridge, 5 Leigh (Va.) 222, 27 Am. Dec. 590; Right v. Sidebotham, 2 Dougl. 759, 9 Eng. Rul. Cas. 289. 9. Boisseau v. Aldridge, 5 Leigh (Va.) 222, 27 Am. Dec. 590; Coffman v. Coffman, 85 Va. 459, 8 S. E. 672, 17 A. S. R. 69, 2 L.R.A. 848. 10. See infra, par. 190. 11. Right v. Sidebotham, 2 Dougl. 759, 9 Eng. Rul. Cas. 289. As to gifts by implication, see infra, pars 171 and 214. 12. McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L.R.A.(N.S.) 657; Gerrish v. Gerrish, 8 Ore. 351, 34 Am. Rep. 585. 13. In re Callaghan, 119 Cal. 571, 51 Pac. 860, 39 L.R.A. 689; Ingersoll v. Hopkins, 170 Mass. 401, 49 N. E. 623, 40 L.R.A. 191. 7. Ackerman v. Fichter, 179 Ind. 392, 101 N. E. 493, Ann. Cas. 1915D 1117, 46 L.R.A. (N.S.) 221; Carpen- 14. Coulam v. Doull, 133 U. S. 216, ter v. Snow, 117 Mich. 489, 76 N. W. 10 S. Ct. 253, 33 U. S. (L. ed.) 596; $ 30 WILLS erally held that the intention to make no provision for a child need not be shown by the will itself,15 but extrinsic evidence is admissible to show that the testator's omission to provide for a child was intentional or unintentional.16 A few courts, however, take the view that the question of intention as to omission must be determined from the face of the will itself. The object of statutes of the kind now under consideration is to guard the testator against the effect of a mistake in providing for some of his children, to the exclusion of others, through forgetfulness of their existence, or in otherwise disposing of his property in such forgetfulness, and the failure to allude to them is made. evidence that they were so forgotten. 18 30. Provision for Pretermitted Child.-Where the will is looked to to determine whether the disinheriting of a child was intentional, any allusion to the child which shows that the testator had not forgotten him is sufficient to sustain the will and exclude the child. It is not necessary that the latter should receive a bequest or legacy under the will.19 But the fact that a testator mentions in his will one closely related by blood or intimately associated in family relations with an omitted heir does not overcome the presumption that he was unintentionally omitted, nor show as matter of construction that he was in the mind of the testator and intentionally omitted.20 A merely nominal Ingersoll v. Hopkins, 170 Mass. 401, 49 N. E. 623, 40 L.R.A. 191; Carpenter v. Snow, 117 Mich. 489, 76 N. W. 78, 72 A. S. R. 576, 41 L.R.A. 820; Odenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741, L.R.A.1916D 421; In re Peterson, 49 Mont. 96, 140 Pac. 237, Ann. Cas. 1916A 716 and note; Lowery v. Hawker, 22 N. D. 318, 133 N. W. 918, 37 L.R.A.(N.S.) 1143; Worley v. Taylor, 21 Ore. 589, 28 Pac. 903, 28 A. S. R. 771. Note: 39 Am. Dec. 740. 15. Carpenter v. Snow, 117 Mich. 489, 76 N. W. 78, 72 A. S. R. 576, 41 L.R.A. 820. 16. Coulam v. Doull, 133 U. S. 216, 10 S. Ct. 253, 33 U. S. (L. ed.) 596; Lorieux v. Keller, 5 Ia. 196, 68 Am. Dec. 696; Whittemore v. Russell, 80 Me. 297, 14 Atl. 197, 6 A. S. R. 200; Wilson v. Fosket, 6 Metc. (Mass.) 400, 39 Am. Dec. 736; Peters v. Siders, 126 Mass. 135, 30 Am. Rep. 671; Ingersoll v. Hopkins, 170 Mass. 401, 49 N. E. 623, 40 L.R.A. 191; In re Stebbins, 94 345; Whitby v. Motz, 125 Minn. 40, Notes: 50 A. S. R. 284; 8 Ann. Cas. 637. 17. In re Salmon, 107 Cal. 614, 40 Pac. 1030, 48 A. S. R. 164; Lurie v. Radnitzer, 166 Ill. 609, 46 N. E. 1116, 57 A. S. R. 157; In re Peterson, 49 Mont. 96, 140 Pac. 237, Ann. Cas. 1916A 716; Gifford v. Dyer, 2 R. I. 99, 57 Am. Dec. 708. Note: 8 Ann. Cas. 638. 18. In re Callaghan, 119 Cal. 571, 51 Pac. 860, 39 L.R.A. 689. 19. Terry v. Foster, 1 Mass. 146, 2 Am. Dec. 6; Wilson v. Fosket, 6 Metc. (Mass.) 400, 39 Am. Dec. 736 and note. Note: 115 A. S. R. 584. 20. In re Salmon, 107 Cal. 614, 40 Pac. 1030, 48 A. S. R. 164. 3 bequest to a child furnishes sufficient evidence that such child was not forgotten, and that he was not intended to have any further share in the estate.1 It has even been held that a devise of certain land in a specified county to designated grandchildren is such a provision for such grandchildren as will prevent their taking the same share in the estate of the testator as if he had died intestate, although the testator had no land in such county at the time of making the will. A general devise of a reversionary interest to the heirs of the testator or to his "children" does not comprehend a posthumous child, so as to prevent it from claiming under the statute as a child pretermitted by the will. On the other hand a sufficient provision is made for an unborn child to sustain a will where the testator, having no child at the time of executing the will or of his death, establishes a remainder which shall be divided among his children. Where there is a gift to a class which includes the children of the testator, additional children who by birth enter this class after the date of the will are not considered pretermitted. And where a married woman then without children provided by will that her property should go to a specified person "notwithstanding I may have children living at my death" the subsequent birth of a child will not avoid the will." 31. Children Born after Making of Will.-The common law doctrine, according to the weight of authority, is to the effect that birth of issue alone does not work a revocation of a will of the father previously made. By virtue of statute in many states, however, if a child is born after the making of a will, and is not mentioned or provided for in the will, such child is entitled to the same share it would have received if its father died intestate, unless it be apparent from the will that it was the intention of the testator that no provision should be made for such child.10 The theory of these statutes is that 1. Note: 39 Am. Dec. 741. 56 So. 688, Ann. Cas. 1913D 1316 and 2. In re Callaghan, 119 Cal. 571, 51 note. And see infra, par. 150. Pac. 860, 39 L.R.A. 689. 3. Note: 15 A. S. R. 592. 4. Armistead v Dangerfield, 3 Munf. (Va.) 20, 5 Am. Dec. 501. 9. Notes: 115 A. S. R. 586; Ann. Cas. 1913D 1322. 10. Lurie v. Radnitzer, 166 Ill. 609, 46 N. E. 1116, 57 A. S. R. 157; Flan 5. In re Newlin, 209 Pa. St. 456, 58 nigan v. Howard, 200 Ill. 396, 65 N. Atl. 846, 68 L.R.A. 464. 6. Lamar v. Crosby, 162 Ky. 320, 172 S. W. 693. Ann. Cas. 1916E 1033; Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L.R.A. 920. Note: 43 L.R.A. (N.S.) 1197. E. 782, 93 A. S. R. 201, 59 L.R.A. 664; Generally as to gifts to a class, see R. I. 407, 78 Am. Dec. 446; Newman infra, par. 233 et seq. 7. Shackelford V. Washburn, 180 Ala. 168, 60 So. 318, 43 L.R.A. (N.S.) 1195 and note. v. Waterman, 63 Wis. 612, 23 N. W. Note: Ann. Cas. 1913D 1322. 8. Easterlin v. Easterlin, 62 Fla. 468, TION, vol. 9, p. 41 et seq. by the birth of the child the circumstances of the testator necessarily became altered, so that a presumption might be drawn that it was the intention of the testator to revoke his will on the happening of such an event.11 Such statutes are usually held applicable as well to a posthumous child as to one born during the testator's lifetime but after the making of his will.12 Although it may appear by the will that a testator had an unborn child in his mind, and that he did not therein make any provision for it, yet the will may not manifest an intention to disinherit the child, and therefore it may be entitled to the same share in its parent's estate as if he died intestate.18 The power to disinherit a posthumous child may by statute be entirely taken away, and the right of such child to inherit made absolute unless the father has made provision for it, in his will or otherwise.14 Statutes providing that a will can be revoked only by cancellation, destruction, or the execution of a subsequent will do not necessarily negative the operation of the rule of partial revocation for the benefit of children afterwards born.15 32. Adopted and Illegitimate Children.-The rights of pretermitted children who have been legally adopted are equivalent to the rights of those born in wedlock. Hence if a testator dies leaving a will in which no reference is made to his adopted child, it must be deemed that such omission was unintentional and such child is entitled to an heir's share in the testator's estate. 16 As to whether illegitimate children unintentionally omitted to be provided for in the will of their mother are entitled to share in the estate left by her upon her decease as if she had died intestate is a doubtful question, as it has been decided that such offspring is not a "child" within the meaning of a statute providing for pretermitted children.17 A different conclusion has, however, been reached under a similar statute.18 33. Remedy of Child.-When an heir at law has been omitted from the will of his ancestor, the question whether or not the omission to provide for such heir was intentional, or unintentional, and due to accident or mistake, is one of fact, which the pretermitted heir has a right to have submitted to a jury, and a verdict in his favor is conclusive if the testimony offered has any legal tendency to support the conclusion reached.19 The unexplained omission of children in a will does not necessarily invalidate the instrument, even though such 11. Note: Ann. Cas. 1913D 1324. 12. Notes: 115 A. S. R. 585; Ann. Cas. 1913D 1333. 13. Lurie v. Radnitzer, 166 Ill. 609, 46 N. E. 1116, 57 A. S. R. 157. 14. Whitby v. Motz, 125 Minn. 40, 145 N. W. 623, 51 L.R.A. (N.S.) 645. 15. Fallon v. Chidester, 46 Ia. 588, 26 Am. Rep. 164. 16. Flannigan v. Howard, 200 Ill. 396, 65 N. E. 782, 93 A. S. R. 201, 59 L.R.A. 664. Note: 115 A. S. R. 587. 17. Note: 115 A. S. R. 587. 18. Note: Ann. Cas. 1918B 253. 19. In re Stebbins, 94 Mich. 304, 54 N. W. 159, 34 A. S. R. 315. will may be ineffectual as to such persons. Their remedy is to appear in the proceedings and demand a distribution of the estate, which, as to them, shall be uninfluenced by the provisions of the will.20 As regards the burden of proof, under some statutes the burden rests on the pretermitted child to show that the omission was unintentional 1 but sometimes the burden is placed on those claiming that such omission was intentional to prove such fact. The rights of pretermitted children rise higher than the will and therefore they are not affected by a power of sale contained in the will. The pretermitted child succeeds immediately, by operation of law, to the same portion of the testator's real property as if no will had been made; as to such portion the testator is to be regarded as dying intestate, and its succession is directed by law, and not by the will.+ III. TESTAMENTARY CAPACITY Tests and Evidence of Capacity Generally 34. Capacity Distinguished from Testamentary Power.-There is a fundamental distinction between testamentary capacity and testamentary power. A person may have capacity to make a will but the power or privilege of transmitting all or a part of his property by will may be denied to him by law. Convicts and married women may have the capacity and yet be denied the power to make a will." Not infrequently the same statute regulates both testamentary capacity and testamentary power, as for example, by the provision that "all persons, except infants and persons of unsound mind, may devise, etc." In this instance the first exception, as to infants, is a restriction on testamentary power, while the second exception, that relating to persons of unsound mind, is a re-enactment of the common law rule that persons who lack testamentary capacity by reason of insanity cannot make valid wills. 20. Doane v. Lake, 32 Me. 268, 52 4. Smith v. Olmstead, 88 Cal. 582, 26 Am. Dec. 654; Lowery v. Hawker, 22 Pac. 521, 22 A. S. R. 336, 12 L.R.A. N. D. 318, 133 N. W. 918, 37 L.R.A. 46. And see DESCENT AND DISTRIBU(N.S.) 1143 and note. TION, vol. 9, p. 42. Note: 115 A. S. R. 580. 1. Brown v. Brown, 71 Neb. 200, 98 N. W. 718, 115 A. S. R. 568 and note, 8 Ann. Cas. 632. 2. Whitby v. Motz, 125 Minn. 40, 145 N. W. 623, 51 L.R.A.(N.S.) 645 and note. 3. Smith v. Olmstead, 88 Cal. 582, 26 Pac. 521, 22 A. S. R. 336, 12 L.R.A. 46. 5. Generally as to the power to make a will, see supra, par. 10 et seq. 6. Steinkuehler v. Wempner, 169 Ind. 154, 81 N. E. 482, 15 L.R.A.(N.S.) 673; Hastings v. Day, 151 Ia. 39, 130 N. W. 134, Ann. Cas. 1913A 214, 34 L.R.A. (N.S.) 1021; Sturges v. Sturges, 126 Ky. 80, 102 S. W. 884, 12 L.R.A. (N.S.) 1014; Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620. |