In re Estate of Salmon

Van Fleet, J. Decedent failed to mention or provide in his will for certain grandchildren, the issue of two deceased sons, John and Alexander. He did, however, leave a small legacy to the widow of each of said sons, the mothers of his said grandchildren. On distribution the omitted grandchildren claimed and were given the share of said estate which they would have taken had the decedent died intestate. Certain of the devisees appeal from the decree.

At the hearing in the court below appellants offered evidence to the effect that the testator, in giving directions for the drafting of his will, stated that his son Alexander’s estate had cost him six thousand dollars and trouble, and that he would not give that family any thing, but would give Alexander’s widow five hundred dollars. That as for John’s family, he would give the widow one thousand dollars, but the boys must look out for themselves. This evidence was excluded, and its exclusion is assigned as error.

The question involved is whether evidence, extrinsic of the language of the will itself, can be resorted to for the purpose of determining whether the omission of one, entitled, in the event of intestacy, to take of the estate, was intentional on the part of the testator, the [616]presumption being that it was not. The question is not a new one in this state. Section 1307 of the Civil Code provides: “ 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,” etc. This provision was a part of the statute of wills before the adoption of the codes, and first received a construction at the hands of this court in Estate of Garraud, 35 Cal. 336. In that case it was held, after quite an extended review of the authorities and the principles involved, that the statute did not modify the common-law rule upon the subject, which limited the investigation for determining the testator’s intention to the face of the will; and that parol evidence was not admissible for such purpose. After referring to this and other provisions of the statute, it is there said: “These provisions exhibit the intention of the legislature, not only to adhere to the safeguards which the common law provided as a protection against fraud, but rather to increase and strengthen, them by new enactments. With this view, nothing short of an explicit enactment, leaving no room for construction, would lead us to the conclusion that the legislature intended to substitute for the written will, as the exponent of the testator’s intentions, the loose and always uncertain evidence of acts and declarations resting in parol, and which are liable to be perverted by the frail memories, obtuse understandings, or fraudulent motives of persons called to testify after the death of the testator.”