after stating the case 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.
*225 Under those statutes a will or codicil to “ pass the estate of the devisor ” must be in- writing; and by section one of “ An Act relative to the Estates of Decedents,” approved February 18, 1876, which is. section 685 of the Compiled Statutes 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) “ Seo. 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 lifetime,by way óf advancement, they shall take nothing in virtue of the provisions of the three preceding sections.” ‘Compiled Laws of Utah, 1876, 262, c. 2, tit; 14.
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 *226 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 by evidence aliunde.
The source of the statute under consideration was undoubtedly that of Massachusetts upon the same subject, though - it is said that this particular 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 Vm. 8,) 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, etc., 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 diseased [deceased] testator, or through his solicitous intention though in health, or through.the overnight 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, th6 in the lifetime of their parents,
“ Be it therefore enacted, etc., That any child or children not- *227 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 lifetime.” 1 Mass. Province Laws, 429, 430. •'
This provincial act was in effect repealed by an act of the Commonwealth of Massachusetts, passed February 6th, 1784-, by which it was revised, the phraseology somewhat changed, and the preambles omitted. Mass. Stat. 1783, c. 24, §§. 1, 8.
By the first section of this latter act any person seized 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 lifetime.”
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 grandchil-dren, 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,
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 *228 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 lifetime; or unless it shall appear that such omission was im tentional, and not occasioned by any mistake or accident.” Rev. Stat. Mass. 1836, c. 62, §-21.
How appear? Evidently
aliunde
the will. If if 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
Wilson
v.
Fosket,
In Bancroft v. Ives, 3. Gray, 367, the statute of Massachusetts was held to apply to children .born after the making of the will and before the death of their father. The. argument was pressed that the language “ omit to.provide in his will” neces *229 sarily meant and should be confined to children living at the time of making the will. This argument was regarded by Chief Justice Shaw as plausible but not sound, because as a man’s will is ambulatory until his decease, the time to which the omission applied was the time of the testator’s death. If, therefore, he had then made no provision by his will, the case of the statute arose, for he had made a will, but left a child without having made any provision for such child.
' By the Utah statute, however, specific provision is made for children born after the making of the will, and also for children in being but omitted when the will is made. Children born after the making of the will but before.the decease,'inherit, unless it appears from the will that the testator intended that they should not. And this applies to posthumous children. •
■ Mr. Jarman Jays it' down that marriage and the birth of á child, conjointly, revoked a man’s will, whether of personal or real estate, these circumstances producing such a total change in the testator’s situation as to lead to a presumption that he could not have intended a disposition of property previously made to continue'unchanged. .But this effect is not produced where there is a provision made for both wife and children by the will itself, Kenebel v. Scrafton, 2 East, 530; or by a previous settlement providing for both. 1 Jarman on Wills, 4th Eng. ed.; 5th Am. ed.*123, *125.
■ Revocation, treated as matter of presumption merely, was thought, in
Brady
v.
Cubitt,
The subject is regulated in this country by the statutes of the several States and Territories, marriage albne working revocation under some, and both marriage and birth of issue being required under others, while subsequently born children, unprovided for,- are allowed to take unless a contrary intention appears. -
' But the provision we are considering^ concerns children in being when the will is made. As to children born after death or the making of the will, the -reason why the intention to omit them should appear On the face of the will is obvious. It is the same as that upon which the doctrine of revocation rest's — the change in the testator’s situation. But this reason loses its force so far as children living when the will, is made are concerned; and this explains the marked difference between the. sections of the statute' before us applicable to the two classes.
The statute raises a presumption that the omission to provide for children or grandchildren living when a will is made is the result of forgetfulness, infirmity or misapprehension, and not of design; but this is a rebuttable presumption, in view of the language employed, which negatives a taking contrary to an intentional omission, and at the same'time leaves undefined the mode by which the affirmative purpose is to be established.
Legal presumptions drawn by the courts independently of or against the words of an instrument may be, in some instances, repelled by extrinsic evidence, and this statutory presumption of an unexpressed intention to provide may be rebutted in the' same way.
Under section 12, a pretermitted child is entitled to no share if it has had an equal proportion by way of advancement, but it is not contended that this fact must necessarily appear from *231 the will when that is not required by statute, yet proof of advancements and of intentional omission alike defeat the claimant.
The rule as to patent and latent ambiguities, so far as analogous, sustains the same conclusion. Where a devise is, on the face of it, clear and intelligible, yet from external circumstances an ambiguity arises as to which of two or'inore things, or of two or more persons, the testator referred to, it .being legally certain that he intended one or the other, evidence of his declarations, of the instructions given for his will, and of other circumstances of the like- nature, is admissible to determine his intention.
The will in this case is entirely unambiguous. The testator’s intention was that his wife should have the property. There being children at the time of the execution of the will, an ambiguity may be said to have been created by operation of the statute, as to their having been intentionally omitted, which ambiguity evidence of the' character named át once removed.
Children so situated do not set up title under the will but under the statute. The will is used to establish that they have no legacy or devise under it. Then the inquiry arises whether the testator intended to omit them. Evidence that he did does not conflict with the tenor of the will. It simply proves that he meant what he said. Instead of tending to show the testator’s real purpose to have been other than is apparent upon the face of the will, it confirms the purpose there indicated. The fact of the existence of children when á will is made is proven dehors the instrument, and since under the statute that evidence opens up a question as to the testator’s intention, which but for the statute could not have arisen, and which by the statute is not required to be determined by the will, we cannot perceive why the disposal of it should be so limited.
It is contended that the statutory provision in question was copied from that of California, and that we are bound by the construction previously put upon it by the courts of the latter State. The California act declared that in case of the omission *232 of the testator to provide in his will for his children, they should be entitled to the'same.share as in case of intestacy, “ unless it shall appear that such omission was intentional.” Laws of California, 1850, c.- 52, ¿ IT.
In Payne v. Payne, 18 California, 291, 302, the Supreme Court of California, speaking through its then Chief Justice, Mr. Justice Field, said : “ The only object of the statute is to protect the children against omission or oversight, which not unfrequently arises from sickness, old' age, or other infirmity, or the peculiar circumstances under which the .will is executed. When, however, the children are present to the mind of the testator, and. the fact that theyare mentioned by him' is conclusive evidence of this, the statute; affords no protection, if ■provision is not made for them. The'inference follows that no pro vision'was intendedand Terry v. Foster, Wild v. Brewer, Church v. Crocker, and Wilder v. Goss, supra, were cited.
But in • the Matter of the Estate of Garraud, 35 California, 336, it was held that evidence aliunde the will was not admissible to show that the omission to make provision for children was intentional, and, in respect to the Massachusetts decisions, the court was of ¡opinion that the words “ and not occasioned by any mistake or accident,” found in the statute of Massachusetts but not in that of California, were very material, and furnished the real ground for the admission of extrinsic evidence. We do not think so. While those words may strengthen the argument in favor of the admissibility of the evidence, it by no means follows that the construction of the statute should be otherwise in their absence. The evidence which shows that •the omission was intentional establishes that it was not through accident or mistake. Action purposely taken by one in the sufficient possession of bis faculties, and not induced, by fraud or undue influence; excludes in itself the idea of casualty or error.
We are satisfied, that this particular phraseology was used-out of. abundant caution, as. serving to render the proper .construction somewhat plainer, and that the construction must be the same, although thosehvords are not used.''
*233 The rule ordinarily followed in construing statutes is to adopt the construction of the courts of the country by whose legislature the statute was originally adopted, but we are .not constrained to apply that rule in this instance. The original source of the statute is to be found in the legislation of Massachusetts. The Supreme Court of California declined to treat the received construction in Massachusetts, as accompanying the statute and forming an integral part of it, upon a distinction which we do not regard as well drawn. That construction commends itself to our judgment, and we hold that the Supreme Court of the Territory properly applied it.
The evidence was competent, and the judgment must be
Affirmed.