230 N.W. 884 | S.D. | 1930
Nils Peter Swenson died testate November 19, 1926. His heirs at the time of making his will were one son, Nils Oscar Swenson, one daughter, Mary -Swenson Johnson, and three grandchildren, issue of a deceased son. In his will testator made no provision for his daughter, nor did he mention her in his will. This proceeding was instituted to set aside and distribute to her, as a pretermitted heir, one-third1 of her father’s estate. Application was first made to the county court and denied. On appeal to the circuit court on trial de novo the application was again denied, and it is now before us on appeal from the judgment of the circuit court and order denying a new trial.
There is nothing in the will itself to show that the omission to provide for appellant -was intentional, and it is the contention of appellant that no evidence aliunde the will can be received to- prove an' intentional omission. The learned trial court received evidence aliunde the will, chief of which was a declaration of the testator to the effect that he intentionally omitted his daughter from its provisions because she was then in the home for feeble-minded, a state institution, and could get no use of a provision if he made one and that he preferred to provide directly for her children, which he did, except as to one son whose whereabouts were unknown.
The first and principal question concerns the admission and consideration of any evidence, 'beyond the four corners of the
“Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for, by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator’s real and personal property that he would have succeeded to if the testator had died intestate.
“1. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding paragraph.
“2. (Omitted paragraph.)
“3. If such children, or their descendants, so unprovided for, had an equal proportion of the testator’s estate bestowed on them in the testator’s lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding subdivisions.”
The statutes of the several states upon this subject are not all alike, and some are not similar. Decisions in states having substantially different statutes will not be reviewed. There are, however, many states having statutes of substantially the same import, though differing somewhat in wording, and in construing such statutes the decisions have not been entirely harmonious in the several states, though the construction once adopted in a state has generally been consistently adhered to- in subsequent decisions of the same state. Two rules prevail; one known as the Massachusetts rule permits evidence aliunde the will to show an intentional omission to provide for a child, or issue of a deceased child, the other, known as the California rule, does not permit such evidence. Some effort has been made to account for the difference in the rules by the difference in the language of the Massachusetts statute and the statute of California, but the reason is not satisfying. The only difference affecting this precise question- is that where the Massachusetts
The privilege of disposing of property by will is purely statutory, and a will, to be effective in transferring property, must be executed and published in the manner and with the formalities required by the statute. In re Taylor’s Estate, 39 S. D. 608-611, 165 N. W. 1079; Mager v. Grima, 8 How. (49 U. S.) 493, 12 L. Ed. 1168-1170; U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 192; U. S. v. Perkins, 163, U. S. 627, 16 S. Ct. 1073, 41 L. Ed. 287, 288; Magoun v. Ill. Trust & Sav. Bank, 170 U. S. 283, 18 S. Ct. 594, 42 L. Ed. 1037-1041; Hitchler’s Will, 25 Misc. Rep. 365, 55 N. Y. S. 642; Abercrombie’s Will, 24 App. Div. 407, 48 N. Y. S. 414; Arneson’s Will, 128 Wis. 112, 107 N. W. 21; In re Noyes’ Estate, 40 Mont. 178, 105 P. 1013.
Our Code provides:
“No will or revocation is valid unless executed either according to the provisions of this chapter or according to the law of the place in which it was made, or in which the testator was at the time domiciled.” Section 618, Rev. Code 1919.
We are not here construing a will defective in form or substance. It is in due form and is plain and explicit in its terms. The only construction required is a determination of the amount of property conveyed by the will, and that does not depend upon the terms of the will, but upon the statute affecting it. By its terms all of the testator’s property is conveyed to the persons therein named. If there were not a pretermitted heir, there could be no question as to its effect. Nor, as it stands, can there be any question as to its effect, when section 636 of our Code is construed in reference to the rights of pretermitted heirs. The question of primary importance is the meaning to be given to the statute, and not the meaning to be given to the will. When the meaning of the statute is known the meaning of the will is plain.
“Had its origin in the uncompleted labors of a commission
Section 636 first came into our law when the Revised Codes of 1877 were adopted. Prior to the adoption of our present statule we had a distinctly different provision concerning pretermitted heirs. It then read:
“When any testator shall omit to- provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child or the issue of such child, shall have the same share in the estate of the testator as if he had- died intestate, to be assigned as provided in the preceding section.” Chapter go, § 27, Laws of Dakota 1862, page 489.
This appears to- be quite different than our present statute. The burden of proof was then upon the omitted child, or grandchild, to show that the omission was not intentional. An intentional omission was presumed in the absence of proof to the contrary. To prove an unintentional omission made by mistake or accident necessarily required evidence aliunde the will. But this early statute was not like the Massachusetts statute, which is so worded as to1 throw the presumption and burden of proof as in our present statute. There was a material change when our present statute was adopted putting us in line with both Massachusetts and California which have statutes substantially alike in meaning in regard to the rights of pretermitted children or grandchildren. In our view the rule of evidence in the two states differs, not because of a difference in language, but because of a difference in interpretation of the statutes.
Are we at liberty to consider both rules and to- adopt the one that seems to us to be supported by the better reason and greater weight of authority? Appellant argues-that we are -bound to the California rule because we adopted' the previously construed statute of that state. It is- said in 36 Cyc. 1154:
“Where the legislature enacts a provision taken from the statute of another state or country, in which the language of the act has received a settled construction, it is presumed to have intended
We know of no reason why either rule would 'be unconstitutional or contrary to the public policy of this state. For that reason the California rule is considered first as applicable to this state, unless found to be unsound. The construction placed upon the statute prior to its adoption in this state is found in Estate of Garraud, 35 Cal. 336, decided in 1868. Therein it was held that evidence aliunde the will was inadmissible. The court considered the case of Wilson, Executor, v. Fosket, 6 Metc. 400, 39 Am. Dec. 736, an early pronouncement of the Massachusetts rule, and said:
“The Massachusetts staute differs very materially from ours, and the concluding clause is as follows, to wit: 'Unless it shall appear that such omission was intentional, and not occasioned1 by any mistake or accident.’ The last part of the clause is not found in our Act, and we think is the key to the decision in Wilson v. Fosket. It opens the door for proof on the question whether or not the amission resulted from mistake or accident.
“It could not well appear from the will itself that a mistake had been committed, nor that accident had caused the testator to omit his children. Hence, when the statute provides for proof on these subjects, it is necessarily implied that evidence dehors the will would be admissible.”
This does not seem- a good reason for the distinction. It is not necessary for the will to show that a child was omitted by mistake or accident. That is presumed. Any statement in the will that would show an “intentional” omission under the California statute would be equally effective to show that the omission was “intentional and not occasioned by any mistake or accident” under the Massachusetts statute.
“It does- seem to be illogical to declare that the intent of the testator must be declared in the will, and still that you cannot show any fact or declaration consistent with and supporting that intent. But this court in April, 1868 (see Matter of Estate of Garraud, 35 Cal. 339), held that such declarations were inadmissible under a statute then in existence, substantially the same, in fact, almost identical in words, with the one in operation when the will involved in this case was executed.
“The precise question made here has not arisen in this state since the case of Garraud’s Estate was decided. * * *
“The decision of this court in Garraud’s Case has stood too long without challenge to be overruled without very strong reasons. It is sustained1 by very powerful reasoning in the able opinion of Justice Crockett. We think it our duty to follow it, and, in accordance with the rule there declared, we must hold that the court below did not err in excluding the offered declarations of the testator.”
The enforcement of strict rules in exclusion of evidence often hampers rather than aids in the administration of justice. No doubt there are times when such rules prevent fraud. But courts are generally able to discern the false and the true. It is not easy to establish a spurious claim where all evidence concerning the matter may be freely received. The requirement that wills (except nuncupative) shall 'be in writing and executed with precise formality would seem to be sufficient without requiring the testator, not only to 'declare his will as to the disposition of his property, but to negative his intention to make any other disposition. As to children or grandchildren born after the making of a will there is another reason for guarding their rights, and the statute expressly provides they shall not be excluded unless an intent to exclude them is expressed in the will. But that is because they cannot ordinarily be in the mind of the testator at the time of making his will. Those in being at the time usually are in the mind of the testator, if he has full testamentary capacity. To guard against an unintentional omission to provide for a child or grand child the statute supplies a presumption that an omission is unintentional. There is nothing to indicate that the statute is designed to restrict the power of a
Finding no error in the record, the judgment and order appealed' from are affirmed.