Sandon v. Sandon, 123 Wis. 603

Sandon v. Sandon

123 Wis. 603 | Wis. | 1905

WiNsnow, J.

Sec. 2286, Stats. 1898, provides that “when any child shall be born after the making of his parent’s will ■ and no provision shall be made therein for him, such child shall have the same share in the estate of the testator as if he had died intestate; and the share of such child shall be assigned to him as provided by law in case of *606intestate 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.” This section appeared in the Revised Statutes of 1849 (sec. 26, ch. 66), and has remained unchanged since that time. Secs. 4021-4024, Stats. 1898, provide for the adoption of children by legal proceedings, and sec. 4024 declares that “a child so adopted shall be deemed, for the purposes of inheritance and succession by such child, . . . and all other legal consequences and incidents of the natural relation of parents and children, the same to all intente and purposes as if the child had been bom in lawful wedlock of such parents by adoption,” with an exception not affecting the present inquiry. This court held in Glascott v. Bragg, 111 Wis. 605, 87 N. W. 853, that a legal adoption under this statute was equivalent, save for the exception noted, to the birth of a child in wedlock. In the present case there is no question as to the legal adoption of the child, Ellen, after the making of the will. The will is plain and unambiguous, and distributes the entire ■estate of the testator to certain devisees and legatees, making no mention of the child subsequently adopted. In this situation, we are unable to see how it can be said to be “apparent from the will that it was the intention of the testator that no provision should be made for such child.” There is nothing within the four comers of the written will which gives any intimation of the wish of the testator with regard to an after-born child. As said in Bresee v. Stiles, 22 Wis. 120, “we are not permitted to look outside of the will to ascertain the purpose of the testator upon this point.” True, if a will contain ambiguous language, which may or may not refer to an unborn child, extrinsic evidence, of the circumstances surrounding the testator when the will was made may be resorted to for the purpose of ascertaining the meaning and intention of such language. Verrinder v. Winter, 98 Wis. 287, 73 N. W. 1007. When that meaning is ascertained, it is *607deemed in legal effect, to be tbe meaning expressed in tbe will itself. In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786. Tbe instrument, as written, bas simply been construed. Nothing bas been added or changed. Lawrence v. Barber, 116 Wis. 294, 93 N. W. 30. In brief, tbe rule is that sncb extrinsic evidence may be received to aid in determining whether any doubtful language in tbe will shows an intention, but cannot be received to add such intention to a will plain and certain upon its face. Tbe evidence relied upon to show ■such intention was principally evidence of declarations by the testator concerning tbe making of a .will, and as to intention concerning tbe child’s relation to bis estate; and it is very clear that such testimony is inadmissible, even if it were a case where surrounding circumstances were admissible to throw light upon tbe intent.

It is argued that tbe order of adoption is insufficient, because it does not, in terms, deprive tbe natural parents of “all legal rights whatsoever respecting” tbe child. This claim is untenable. It is true that sec. 4024, supra, provides that “tbe natural parents of such child shall be deprived by such order of adoption of all legal rights whatsoever respecting such child,” etc., but it is quite certain that this is simply a statement of the legal effect of the order when made. Sec. 4023 specifically provides the contents of the order, and the directions therein contained were strictly followed in the ■order made.

By the Court. — Judgment affirmed.