no such intention appears in the will; the omission was therefore unintentional. Estate of Garraud, 35 Cal. 336; Estate of Utz, 43 Cal. 200; Bush v. Lindsey, 44 Cal. 121. And, as pretermitted heir of her mother, the respondent was entitled to a distributive share of the estate.2

Judgment affirmed.

PEET v. PEET et al.

(Supreme Court of Illinois, 1907.

229 Ill. 341, 82 N. E. 376, 13 L. R. A. [N. S.] 780.)

Bill for partition by Henry J. Peet, as guardian ad litem of Telfair B. Peet, a minor, against Jane Creighton Peet and others.

*

*

On May 28, 1902, William Creighton Peet made and executed a last will and testament, which, omitting the formal parts thereof, is as follows: "I give, devise and bequeath all my property, wherever situated, to my wife, Jane Creighton Peet." The youngest son of the testator, Telfair B. Peet, was born about 12 years after the execution of the will. The other son, Creighton Peet, was about 3 years old at the date of the will. Jane Creighton Peet claims the entire half interest in the testator's land in question, while the guardian ad litem of Telfair B. Peet claims that the devise under the will should be abated to raise for the after-born child such a portion of the testator's estate as he would have been entitled to receive if the testator had died intestate. *

*

The circuit court found that Jane Creighton Peet was the owner in fee, under the will, of the real estate of which the testator died seised, and that Telfair B. Peet had no interest whatever in the premises. Telfair B. Peet, by his guardian ad litem, appeals to this court, and

2 But see Kent v. Barker, 2 Gray (Mass.) 535 (1854). That a child born out of lawful wedlock before the date of its father's will and rendered legitimate by the marriage of its father and mother after the date of the will is not an afterborn child entitled to take as if the father had died intestate is held in Appeal of McCulloch, 113 Pa. 247, 6 Atl. 253 (1886). But compare cases on effect of adoption in note, post, pp. 420, 421.

On a gift in a will to children as applied to illegitimate children, see In re Sander's Estate, 126 Wis. 660, 105 N. W. 1064 (1906); In re Eve [1909] 1 Ch. 796. On the rights of children omitted from a will of their parent, see 9 Prob. Rep. Ann. 3, note; 8 Am. Prob. Rep. 338, note.

Pretermitted heirs include posthumous children. Bowen v. Hoxie, 137 Mass. 527 (1884); Northrop v. Marquam, 16 Or. 173, 18 Pac. 449 (1888). And children born after the execution of the will and before the testator's death. Owens v. Haines, 199 Pa. 137, 48 Atl. 859 (1901); Walker v. Hyland, 70 N. J. Law, 69, 56 Atl. 268 (1903); Watkins v. Watkins, 88 Miss. 148, 40 South. 1001 (1906). As well as children born before the execution of the will and overlooked. On what is a "mention" of children, see Tavshanjian v. Abbott, 130 App. Div. 863, 115 N. Y. Supp. 938 (1909). See, also, note 56, ante, p. 320.

In Hobson v. Hobson, 40 Colo. 332, 91 Pac. 929 (1907), a will was rendered nugatory except as to the appointment of an executor because a posthumous child took one half the estate, as it was not provided for in the will, and the widow elected to take the other half by renouncing the will.

insists that the court erred in refusing to hold that Telfair B. Peet was the owner of an undivided one-fourth interest in the premises described in the bill.

VICKERS, J. Section 10 of chapter 39, Hurd's Rev. St. 1905, provides as follows: "If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate, and a marriage shall be deemed a revocation of a prior will." * * *

Second. Appellant's second proposition is that under section 10 of chapter 39 of our statutes no evidence outside the will itself is admissible, and that under said section and the words of the will appellant is entitled to a one-fourth interest in the real estate involved. In so far as the court below permitted parol evidence of the testator's statements, either before or after the making of the will, the ruling is clearly erroneous. The statements of a testator cannot be received to prove what is intended by the written words of the will. Where an issue is raised as to the testamentary capacity of the testator, then what he says and what he does, if not too remote from the time when the will was executed, becomes original evidence and is admissible under the well-established rules of evidence. The erroneous ruling of the court on the admission or exclusion of evidence will not require us to reverse the decree if upon the whole record a proper conclusion has been reached and there is competent evidence in the record sufficient to support the decree.

Appellant insists that section 10 of chapter 39 ex vi termini precludes the court from looking to anything except the words of the will itself. This argument is based upon the phrase, "unless it shall appear by such will that it was the intention of the testator to disinherit such child"; his contention being that the intention of the testator must be expressed in words in the will, and that it is not sufficient that such intention is disclosed by the application of the usual rules of interpretation, especially if, in the application of those rules, parol evidence must be resorted to. This section of the statute was not enacted for the purpose of working a change in the law relating to the construction of wills. Manifestly, it was never intended by the Legislature that wills to which this section applied should be construed by any different rule than other wills to which said section does not apply. In a legal sense, everything pertaining to a testamentary dis

8 The statement of facts is abbreviated, and part only of the majority opinion is given.

position of property must appear by the will, but it often becomes necessary to resort to extrinsic evidence to determine what persons or things do, in fact, appear by the will. The language of the will may be such that the court cannot determine with certainty what intention is expressed in the will, but when read in the light of surrounding circumstances the court can clearly see what before was not discernible. It was not discernible, not because it did not appear from the will, but because the reader did not have the aid of the lights furnished by the surrounding circumstances.

"

By way of illustrating our meaning, take Lord Cheney's Case, 5 Rep. Ch. 69. There the testator had two sons, both baptized by the name of "John." He devised his lands to his son John, without in any way designating which one of them he referred to. When the testator used the name "John" he meant a particular son, but the question was: Which one did he mean? Upon resorting to extrinsic evidence it was shown that the elder John had been long absent and was supposed to be dead, while the younger John was known to be alive at the time the will was made. Now, in the light of these circumstances, it was readily decided that the younger should take the devise. Another illustration is afforded by the case of Bradley v. Rees, 113 Ill. 327, 55 Am. Rep. 422. There the residuary clause devised all the remainder of the testator's lands "to the four boys." The testator had seven sons, but the parol proof showed that three of them were men, married, and had families of their own, while four of them were minors, residing with the testator. It was held that the testator intended the four minors to have the estate. In these and all like cases where a resort to parol evidence is allowable, it is not for the purpose of importing into the will a new intention not expressed in the will, but for the purpose of enabling the court to determine what the intention in fact is, as expressed by the words of the testator in the will.

We regard the case of Hawhe v. Chicago & Western Indiana Railroad Co., 165 Ill. 561, 46 N. E. 240, as directly in point and conclusive against the contention of appellant on this question. Indeed, we do not see how it would be possible to sustain appellant's contention without overruling that case. There, as here, the will gave all of testator's property, real, personal, and mixed, of every kind whatsoever, to testator's wife. At the time the will was executed the testator had two children, and afterwards a third child was born. There was there, as here, no mention or reference to the children, born or unborn. Parol evidence was admitted there of the same general character that was heard in this case, and in answering the argument made against the admissibility of such evidence this court, on page 564 of 165 Ill., page 241 of 46 N. E., said: "But we do not think the evidence objected to had any tendency whatever to vary or change the intent of the testator as declared in the will. As we understand the record, the evidence was not offered for that purpose. The object of the evidence

was to place before the court the circumstances attending the execution of the will in support of and in aid of the intention of the testator as declared in the will, and the court, in the exercise of its discretion, had the right to hear such evidence. In the discussion of this subject it is said in Schouler on Wills (section 579): 'But to aid the context of the instrument by extrinsic proof of the circumstances and situation of the testator when it was executed is constantly permitted at the court's discretion, and this constitutes a proper-indeed, often an indispensable-matter of inquiry when construing a will, for whatever a will may set forth on its face, its application is to persons and things external, and hence is admitted evidence, outside the instrument, of facts and circumstances which have any tendency to give effect and operation to the terms of the will, such as the names, descriptions, and designation of beneficiaries named in the will; the relation they occupied to the testator; whether the testator was married or single, and who were his family; what was the state of his property when he made his will, and when he died; and other like collateral circumstances. Such evidence, being explanatory and incidental, is admitted, not for the purpose of introducing new words of a new intention into the will, but so as to give an intelligent construction to the words actually used, consistent with the real state of the testator's family and property-in short, so as to enable the court to stand in the testator's place, and read it in the light of those surroundings under which it was written and executed'-citing Little v. Giles, 25 Neb. 313, 41 N. W. 186, and Doe v. Hiscock, 5 Mees. & W. 363."

In commenting on the force of the fact that the testator had two children living at the time the will was made which were in no way referred to or mentioned in the will, this court, in the same case above cited on page 567 of 165 Ill., page 242 of 46 N. E., used the following language: "At the time the will was executed by the testator he had two children then living; one four and the other two years old. These children were excluded from taking any portion of the testator's estate by the will. Is it reasonable to believe that the testator intended to exclude these two infants and not at the same time exclude another child to be born within the next two months after the will was executed? It seems plain, if the testator had intended to make any distinction between his children then born or unborn, he would have inserted a provision in his will manifesting that intention. In order to disinherit appellant the testator was not required to state the fact in express terms in the will. It is enough that the intention appears from the will, upon consideration of all of its provisions."

The same reasoning applies with special force to the case at bar. Let us look at the circumstances. The testator had one child, a bright, intelligent, lovable son, three years old, bearing his father's name, Creighton, and the testimony shows that the testator was devotedly attached to this boy. The testator had retired from business and spent a large part of his time in the company of his son, Creighton. He

owned an estate of heavily incumbered and unproductive lands, which required business ability and expedition in handling the same. The testator had a wife in whose business judgment and ability he had unlimited confidence, and he no doubt believed that her maternal devotion to her children could be relied upon to provide for them out of what might be saved of the estate better than the testator could in the embarrassed and entangled condition of affairs that surrounded the property at the time the will was executed. Surrounded by these circumstances, the testator made his will, employing for that purpose 16 words: "I give, devise and bequeath all my property, wherever situated, to my wife, Jane Creighton Peet." What did the testator mean by giving all his property to his wife? Did he mean that if afterwards a child should be born such child should have one-fourth of the property and the wife three-fourths, and the other child, Creighton, none? In our opinion he meant that his wife should have all of the property, to the exclusion of his children then born or to be thereafter born, and we are much influenced in reaching this conclusion by the circumstances surrounding the testator at the time the will was made, parol evidence of which, under the authority of the Hawhe Case, is clearly admissible in this state.

We freely concede that other courts in other jurisdictions have reached an opposite conclusion with respect to the admissibility of parol evidence under statutes bearing more or less similarity to ours. Perhaps one of the strongest presentations of the opposing view is an opinion of the United States Circuit Court for the District of Nebraska, rendered by Mr. Justice Brewer, in the case of Chicago, Burlington & Quincy Railroad Co. v. Wasserman, 22 Fed. 872. In that case the learned judge felt himself compelled to decide against what he frankly confesses was the real intention of the testator, because, under his view, parol evidence could not aid the difficulty. A quotation from that case is here made merely for the purpose of showing that the rule there applied defeated the intention of the testator: "In this case the primary question I am reluctantly compelled to decide in favor of the complainant, Wasserman. I say reluctantly, for when a man, on the eve of death, having a child five years of age and living with a wife to be delivered of a second child within twenty days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either the born or unborn child, but trusted to his wife, their mother, to do justice to each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact, independent of the statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But