In re Estate of Garraud

California Supreme Court Jul 1, 1868Published

Before: Crockett

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Holding. The court held that parol evidence is inadmissible to prove that a testator intentionally omitted his children from a will; the testator's intent must appear on the face of the will itself.

Issues

Whether parol testimony is admissible to prove a testator's intent to omit children from a will under section seventeen of the Act concerning wills.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The sole question presented on the appeal is, whether the Court erred in admitting parol testimony as to the intention of the testator in omitting the children from the will, or whether the will alone is to be consulted.”

“It may be stated as a general proposition, not open to controversy, that wills, like other written instruments, cannot be varied, altered, added to, or contradicted by parol evidence.”

“we do not understand the counsel for the respondent to deny that this was the common law rule. But he rests the case wholly on the statute”

Synopsis

Parol Evidence to explain Will.—Under the provisions of section seventeen of the “Act concerning Wills,” parol evidence is not admissible to show that a testator, who by his will devised his whole estate to his wife without mentioning his children therein, intentionally omitted to make any provision for his children, but to render an exclusion of the latter effectual, the evidence that the testator • intended to do so must be furnished by the will itself.

By the Court, Crockett, J.: This is an appeal from an order of the Probate Court decreeing distribution of the estate of Jean Garraud, deceased.

The facts are, that Garraud died, leaving a widow and several minor children, and leaving also a last will and testament, which was duly probated, wherein he devised to his wife his whole estate, and appointed her sole executrix. He did not mention or make any reference whatever to his children in the will. When the executrix had made her final settlement, she filed a petition for distribution, claiming the whole estate as sole devisee under the will. The minors also appeared, and- contested her right, on the ground that not having been mentioned or referred to in the will, they were entitled, under section seventeen of the “Act concerning wills,” to share in the distribution of the estate. This section of the Act is in the following words, to wit:

“When any testator shall omit to provide in his or her will for any of his or her children, or for the issue of any [339]deceased child, unless it shall appear that such omission was intentional, such child shall have the same share in the estate of the testator as if he or she had died intestate, to he assigned as provided in the preceding section.”

On the trial the widow offered oral proofs tending to show that the omission of the testator to provide for his children was intentional. This testimony was objected to on behalf of the children; but the Court admitted the testimony, and ordered the whole estate to be distributed to the widow as sole devisee. The minors, having duly excepted to the ruling of the Court, have appealed from the order for distribution.

The sole question presented on the appeal is, whether the Court erred in admitting parol testimony as to the intention of the testator in omitting the children from the will, or whether the will alone is to be consulted.

The question is not freé from doubt, and we are not aware that it has ever been passed upon by this Court.

The next preceding section of the Act provides for children born after the making of the will, and enacts that if the will makes no provision for such children they shall have the same share in the estate as if the testator had died intestate, “ 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.” Section twenty-one provides that “ every devise of land in any will shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that he intended to- convey a less estate.” Section twenty-two provides that “ any estate, right, or interest in lands acquired by the testator after the making of his or her will, shall pass thereby, and in like manner as if it passed at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator.” Section twelve provides that “if after the making of any will the testator shall marry, and the wife shall he living at the death of the testator, such will shall be

In re Estate of Garraud

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