Estate of Price

NOURSE, P. J.

To a petition for distribution filed by the executor objections were filed by two children of a deceased son of the testatrix upon the grounds that they had been unintentionally omitted from the provisions of the will. Following a hearing the probate court decreed that they were entitled to their proportionate share of the estate under section 90 of the Probate Code. The executor and a brother who was mentioned in the will appeal from this decree.

Eva L. Price died testate on June 4, 1941, leaving as her only heirs at law her two sons and two grandchildren, Merton Joseph Price, born August 3, 1920, and Susanne Price, born July 2, 1923—both children of Merton James Price, a son of the testatrix who died December 23, 1932. The will of Mrs. Price contained these two clauses which are all that is material to the controversy: “I give, devise and bequeath to my two sons, Arthur Benjamin Price and Walter William Price, all of my property, real, personal and mixed and wheresoever situate, to be divided between them at my death, shg,re and share alike.

“I purposely refrain from leaving anything by this my last will and testament to any other person or persons, and in the event that any other person or persons shall either directly or indirectly contest this my last will and testament I give to any such person or persons contesting said will the sum of $1 and no more, hereby declaring that I have

[337]

only at this date two surviving children, to wit: my said two sons above named. ’ ’

Section 90 of the Probate Code, which was enacted in 1931, reads: “When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.”

The will was executed on January 12, 1933, and hence is controlled by the above section. It will be noted that the new section added the words “from the will” to the expression reading: “unless it appears from the will that such omission was intentional.” By this change the Legislature set at rest the question whether the intention of the testator to exclude could be determined by extrinsic evidence, or by presumptions and conjectures indulged in by the court. It expressly declared that this intention must appear “from the will.”