Estate of Lindsay

SLOSS, J.

David Lindsay died, leaving a will which contained the following provisions:

“First:—I give, devise and bequeath all my property, of every kind and nature, and wheresoever situated, to my wife, Permelia Lindsay. ...

“Fourth:—I purposely bequeath all my property to my wife, Permelia Lindsay, knowing that she is a kind and lov-. ing mother and will provide for our son Clyde Lindsay.

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“Fifth:—Should any other person or persons present themselves claiming to be heirs of mine, I give and bequeath to such person or persons the sum of Five Dollars ($5.00).”

The will was admitted to" probate, and letters of administration with the will annexed were issued to C. A. Monroe. In due time the administrator filed his final account, with a petition for distribution. The appellants herein, Josephine Folsom and Louise Kamps, appeared, alleging that they were illegitimate children of the testator, and that he had, in his lifetime, made a written acknowledgment sufficient, by the terms of section 1387 of the Civil Code, to give them the rights of inheritance which they would have had if born in lawful wedlock. Their contention was that the testator had omitted in his will to provide for them, and that it did not appear that such omission was intentional. Accordingly they claimed, under section 1307 of the Civil Code, to have succeeded to the same share of Lindsay’s estate as if he had died intestate.

It was stipulated in the court below, for the purposes of the hearing, that said claimants were the illegitimate children of David Lindsay, and that he had made the written acknowledgment as asserted. The court concluded, however, that, by paragraph fifth of the will, the testator had made provision for them, and that they were not entitled to any part of the estate, except the sum of five dollars each. A decree was made, distributing this sum to each of them, and the rest of the estate to the widow. The claimants appeal from this decree.

We think the court below took the right view. The case is, in its essence, not distinguishable from

Estate of Hassell,