It appears from the evidence in this record that the late Millen Atwood, of Salt Lake county, made his last will on the 30th day of September, 1890, in which he devised all his real estate, and bequeathed all his personal property remaining after the payment of his just debts and his funeral expenses, to his wife, Belief C. Atwood, and to his three children, Millen M. Atwood, Abbie Ange-nette Sermon, and Bosalie Esther Kelch; and that he died on the 7th day of December, of-the same year, possessed of real and personal property ; and that his widow, Belief, and his children named, are still living. It also appears that the will was duly probated, and that Florence Atwood, by her guardian, filed her petition in the office of the clerk of the probate court of said county on the 30th day of March, 1892, in which she alleged, with other facts, that she-was of the age of 15 years; that she was a daughter and heir at law of the testator; that he omitted to provide for her in his will; and that it did not appear that such omission was intentional. Upon final distribution of the estate, she prayed that the same portion thereof might be awarded to her that she would have succeeded to if the testator had died intestate. The executors, devisees, and legatees named .in the will filed an answer to the petition, denying all its material allegations. This is an appeal from-a decree granting the prayer of the above petition.-
The principal question presented upon this appeal for our consideration and decision arises upon the ruling of the lower court excluding declarations of the testator made before, about the time of, and after, he executed
The language of the testator’s will gives his entire estate, after the payment of his debts, to his wife-and the three children named. No mention or reference to any other heir is made in it. While' it is true that no reference is made in the will to the petitioner, Florence, and ' that there is evidence tending to prove that she was not the testator’s child, in pur opinion the weight of the evidence supports the finding of the trial court that she was his daughter. The law quoted above raises the presumption, from the absence of any reference to her in the will, that the omission was not intentional; but the presumption is not conclusive, and it may be overcome by legitimate evidence. It is to overcome this presumption that evidence is admissible in the first instance and after-wards to support it. So that the evidence is not admitted to aid the lower court in the construction of the will. It is admitted solely to rebut the presumption which the law raises. It is admitted for the sole purpose of rebutting a prima facie presumption raised by the statute, contrary to the intent which the language of the will expresses. The statute presumes that the testator ■did not mean what he said, while the evidence offered says he did. Taylor, in his work on Evidence, distinguishes the rule regulating the admisión of parol evidence to rebut legal presumptions from those excluding
In the discussion of the rules respecting the admission of extrinsic evidence as to wills, Abbott says: “The considerations to which I have adverted, however, it will be seen, do not militate against evidence impeaching or disproving the validity of the testamentary act nor, on the other hand, against evidence tending to show that the intention was really just what it expressed on the face of the will.” Abb. Tr. Ev. p. 132. We are of the opinion that the presumption raised by the statute, that the omission by á testator to provide for any of his children was not intentional, may be rebutted by extrinsic evidence, whether of declarations of the testator, or collateral facts showing the intention of the testator to have been that which the language of the will expresses. Tayl. Ev. pp. 1043-1046; 1 G-reenl. Ev. § 209. The law was so determined by the supreme court of the late territory of Utah, under a statute substantially the same as the one quoted above, in the case of Coulam v. Doull, 4 Utah, 267, and affirmed by the supreme court of the
On the trial of the issues raised by the petition and answer in this proceeding, Eelief C. Atwood, the widow of the deceased, devisee and legatee under the will, and Millen M. Atwood, Abbie A. Sermon, and Eosalie E. Kelch, children of the testator, also devisees and legatees, testified to certain conversations with the testator, before and after the will was executed, in which he stated that the petitioner, Florence, was not his child, and that he did not intend to provide for her in his will. These statements wrere excluded by the court, and the respondents to the petition excepted to the ruling of the court, and assign it as error. This assignment of error raises the question: Were such legatees and devisees competent witnesses, under “An act amending subdivision 3 of section 3S77 of the Compiled Laws of Utah 1888, relating to witnesses,” in force March 7, 1894? Subdivision 3 of section 3877 of the Laws of 1888,' which the act of March 7, 1894, proposes to amend, is as follows : “The following persons cannot be witnesses: * * * Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person, and equally within the knowledge of both the witness and the deceased person.” This subdivision applied only to contentions between estates of deceased persons and other parties, not to contentions between heirs, legatees, or devisees as to their respective interests in such estates,
The petitioner was heir. The parties opposing were heirs, legatees, and devisees. The statements were by the testator, and expressed an intention not to provide for the petitioner in his will, and were, in effect, favor
For the reasons stated, the decree of the court below is reversed, with costs, and that court is directed to grant a hew trial.