Bank of America National Trust & Savings Ass'n v. McDermott

DUNIWAY, J. Thomas A. Sawyer died testate on September 9, 1958, and his will was admitted to probate on October 15, 1958. On May 8, 1959, Dorothy Alberta McDermott (formerly Sawyer), his only child, filed a petition to determine heirship. In response, appellant bank, as executor of the will [472]of Ella P. Sawyer, who died November 28, 1958, filed a statement claiming the entire estate. The court found that Dorothy was named in the will, but that Thomas ‘ ‘ unintentionally made no provision in said Will for said Dorothy ...” and that she is a pretermitted child. A decree was entered accordingly. The executor bank appeals. Its appeal is well taken.

The will is on a printed form. A copy follows: [See following page.]

At the hearing, no evidence was offered as to Thomas ’ intention to provide for Dorothy, except the file in a divorce action between Thomas and his former wife, Dorothy P. Sawyer. That action was filed by the wife September 27, 1918. An interlocutory decree was entered February 7, 1919, and a final decree February 9, 1920. Custody of Dorothy was awarded to the wife. On March 22, 1921, Thomas moved to modify the decree, by changing custody of Dorothy to himself. The motion was denied on April 1, 1921. On January 10, 1922, Thomas moved to modify his visitation rights. So far as appears, no order was made. On two subsequent occasions, July 24, 1924, and August 7, 1925, these rights were modified by stipulation. Nothing further appears. Dorothy was 2y2 years old when the divorce action was filed, and about 4 years and 9 months old when the will was made. In his answer in the divorce action filed in October, 1918, Thomas asked for custody of Dorothy. All other proceedings relating to her custody occurred at times subsequent to the execution of the will. She was less than 10 years old when the last stipulation was made.

We fail to see how anything in the divorce file can be considered evidence that Thomas’ failure to make a provision for Dorothy in his will was unintentional. Wills frequently make no provision for young children, the testator preferring to leave his property to an adult who, he has reason to believe, will take care of the child by reason of a relationship by blood or affection, or both. Here, Thomas being divorced, it is not surprising that he left his property to his mother, the grandmother of Dorothy, rather than to his wife, as he might otherwise have done. The divorce file, like the will, indicates that Thomas had a daughter, and knew it. It also indicates that he was interested in her, a subject on which the will is silent, but does not show that provision for her was unintentionally omitted from the will. Moreover, we seriously doubt, but do not decide, that the proceedings in the divorce action subse