Show JUDGE DECISION IN THE ATWOOD CASE following to the full fial text of the de casion of judge bartch in the case of florence atwood a laughter daughter of the late millen atwood and his former plural wife who petitioned for her share to in his estate although not named in his bis will in the matter of the estate of millen atwood deceased opinion of court this is a case in im which the deceased died testate leaving a will which was daly admitted to probate on the day of january 1891 millen M atwood and abbie angenetie Augene tLe sermon son and daughter of deceased were named in said will as executor and executrix and were duly a appointed by this court as such in process of administration they idled filed their final account and petition for dis tri budon of the estate which estate was appraised at ninety six thousand seven hundred and seventy six and 75 dollars on the day of february stift un ln the both day of march 1892 florence A atwood a minor by her guardian amelia A sutton idled in this court a petition alleging that she is a daughter and heir beir at law of said decea ed that she is not provided for in the lait will of said deceased that said testator omitted to make any provision for her that it does not appear that such omission was intentional that she is a minor under the age of eighteen years etc and concludes with a fraler prayer that in the proceedings now pending for final distribution she abe may be permitted upon this petition to intervene and she may be made a party thereto and that thai ution upon the ignal final distribution of the said estate there may be distributed and awarded to her the same portion of the es ate of said deceased whether real or personal that she would have succeeded to if f the said deceased had died intestate inte etc A at t the hearing ot this case subject to a formal objection made to the introduction of testimony under said petition counsel for the devisees devi sees the proponents ants in the catie cane admitted that on the day of february miss amelia A youngdale who is now mrs amelia A sutton button the guardian wis was marriee according to the forms and rites of the mormon ul church to the deceased in the endowment house at salt bait lake that site she thereby became what is known as a plura wife he wen hen having a wife alive I 1 am clearly of the opinion that the petition complies with the law in such cases and that evidence can be received the objection is therefore overruled the marria marriage 0 of miss amelia A youngdale You iRdale with the deceased le having been admitted and it having been established shed by evidence that M as 88 am amelia lia A youngdale and mrs amelia A button the said guardian are one and ana the same person and that ahe is themo the mo ther of florence A awood A wood the petitioner it next becomes important to determine ae determine termine from the evidence as to it nether hether or not net said Flore florence nue A atwood to is the daugh and heir at law of said deceased the awry of that unfortunate marriage of their subsequent cohabitation as man m an and wife of the birth of the child said petitioner of its acknowledgment by the de ceased immediately after its birth as his bis child of the support which he be gave to the mother and child until began to arise between the father and mother or the manner in which he be fondled it of the blessing of the child etc was related in such a ward way by the said guardian and mother ot oft the petitioner that it could not fall fail to carry conviction to the mind ot 01 every disinterested person who heard the testimony careful observation during a searching cross examination of the witness by able counsel and ana very close scrutiny of the evidence has utterly failed to impeach the tae witness and has made a profound imbres flon plon on my mind that both the testator and the witness were parties to the whole transaction and this impression wits was by no means m weakened by the testimony of the disinterested witness who te testified stilled in behalf of the petitioner petition erf nor was it weakened alter carefully weighing the evidence on tle part of the proponents circus circumstances surrounding this case and from the facts established by the evidence I 1 urn ain coL convinced vinced that said florence A atwood is the daughter and an heir of said testator and I 1 so decide being a child and heir of the testator and he having omitted to provide for her in his last will ald aid testament is she entitled to a distributive share of his estate to dete determine this determining question recourse must be had to the law which governs this class of cases in this terri tern tory as well as to the evidence introduced in the trial of the cause section ebion 2677 7 C L 1 of utah IM 1888 provides as ae fo fellows 11 ws when any testator omits to in his will for any ot his children or vor for the ashue of any deceased child unless it appears that sue such h omission was intentional such child or the issue of such child must have the same share in the estate 0 of the testator as if he had bad died intestate and succeeds thereto as pro aided in the pr preceding ceding section under this section counsel for proponents offered to in trod traduce ace n evidence by I 1 p irole u ole testimony mony de cla rations made by the deceased in his life time to show that he be did not intend to provide for the petitioner in his will to this counsel fur for petitioner objected out by agreement of counsel the evidence evi lence was taken subject to the objection to be admitted or rejected by the court after final argument and its admissibility must now be determined the section of oar statute above quoted is in almost identical with section 0 L of utah 1876 the two sections differ only in the form of the verbs omit and appear in the old sect on the sail verbs are used in the future tense in the new chev are used uselin in the present tense afie old section was construed by the supreme court of this territory in the case of coulam vs doull 9 pacific Ke reporter porter and the court there hold held that extrinsic evide ce wai wa ad to show elbow the intention of the testator to omit to provide for his children and this was affirmed by the supreme court of the U cited states U 6 13 which court in affirming said decision of our territorial supreme court commented approvingly on the leading case in massachusetts wilson vs fosket 6 met where it is held that evidence of this character i is admissible admi isible to establish the fact that such omission of his child by the testator as caused by design and not by mistake or accident counsel f fr r petitioner maintains however that the change of tense above referred to is material as to the new law an examination b by Y comp rison of the sections in our present and form ar r statutes preceding and succeed ing the section under consideration reveals the same change in tense and I 1 am of the opinion that the legislature intended no change in the law in this particular and that the same construction should foiw follow as in coulam vs doull supra ate A 0 counsel colun a e for petitioner further argues that section n 2684 0 L of uth ut h 1888 1838 has been en acted the decision in coulam vs doull and applies to this case the section referred to reads as follows fol loVe in case of uncertainty arising upon the face of a will as to the aepli cation of any of its provisions th tin thi i test testators tors intention is to be ascertained from the words of the will t taking in view the circumstances under chic which h it was made exe asive of his oral declarations this section ref refers era to a case where upon the face of a will an uncertainty arises as to the application of any of its provisions but refer ence to te the will under consideration reveals ia such uncertainty on its face in fact just the opposite appears its provisions are plain and and could be applied without dill difficulty were it not for the uncertainty which arose immediately upon the filing in this court of the petit iners boners petition claiming to be a child of the testator tes for in the will and therefore antl enfiled en tiled i led to a adis distinctive not ve share of his estate now this uncertainty did not arise upon the face of the will but debars the will and in such a case the intention of the testator cannot be ascertained in merely from the language t u ageos of the will which is entirely silent as to the h e petitioner and circumstances u ider which it was made but from evidence aliunde as well I 1 do not think said section 2684 applies to the case as at bar ar nor do I 1 think there Is any mater lal al change chan e in the law as laid down in coulam vs doull doul supra the said se section tion is simply declaratory of the familiar rule that evidence of oril oral declarations cannot be given to overthrow or control the words of a written instrument again the party offering ering extrinsic evidence in a case like this does not it to change the language langy age of the will nor to control a written instrument the petit petitioner petitioned ione r does not claim under the will rill but under our statutes the will itself is used tor for no other purpose than to show it contains no provision for her and the inquiry as to whether or not the testator omitted to provide for her by design de I 1 is a distinct labue the establishment of wh which does not necessarily jy affect the tenor of the instrument when such testimony as to the ahe declarations of the testator is offered as in this case to sustain iia the position that the petitioner was intentionally omitted by bv the testator and for talat depson reason cannot claim as hair bair aviah at baw an aej 1 thereby change the provisions of his will the evidence confirms the will and hence is not in violation of the general rule that the intent of the destat r must be found on the face of the will the said petition raised a latent ambiguity in me will which is unambiguous bonats lace and to remove this parole evidence as to the facts and circum stance ill including the declarations of the tes tea leading up to and at and alter the time of the making of the will to is ad admissible schouler bouler Sc on wills coulam vs doull 17 wilson vs fosket 6 met H vens vs van len den burgh I 1 denio 29 converse vs wales wailes 4 allen alien I 1 bold similar views in regard to section 2706 G C L of utah IM 1888 to which counsel has baa called my attention in determining ling the main question as to whether or not florence actwood is entitled to a distributive share of the testators estate I 1 have steadily kept in view the circum stances with which he was surrounded from the time of that unfortunate mairi wainage ma inage age as appears by the evidence and have noticed how bow the defendants have show i the avel avei sion the testator had bad for the petitioner how he ref sed to provide for her and her mother or to own her as an his bis child in his bis lifetime and have also noticed that in the presence of the witnesses for the petitioner pet idoner he exhibited no such aversion but exactly the opposite at least for some time after the birth of the child why this thi change of disposition was it because of ahk the unfriendly feeling between the families I 1 would be inclined to criticise criticism critic ise severely some of the testimony of the proponents were it not n for the fact that the evidence of the flon so points to the difficulties which existed between the mother and the testator from the mme ame her child was eighteen months old and furter she refused to return to him unless he be would give her a home that she abight call her own thenceforward the breach seemed to widen the mother forb forbade ide her child to speak t to the father and the families failed to lecog nize each other I 1 am not convinced that the mother of the petitioner had no good reason for leaving the testator especially after considering in the light of the circum st ancs around her the testimony in relation to kropet conduct and anxiety for the welfare of df her child given by her old mother and mrs louisa madsen who themselves are on the shady side of life members of the same church ai the testator believing in the same faith which united in the bonds of matrimony an old man in his dotage with the blooming innocent young swede girl the resu reau t of which union is esthe the innocent child at the bar of this court refusing to believe that her father intentionally withheld from her what justice would assign her or th thit it he closed his eyes in death intent on breaking the solemn promise made to her mother that he would provide tor for his child always desirous to help the weak and innocent have endeavored to examine this case with great cars care but the conclusion is irresistible that the testator intentionally ally omitted to provide for his bis child and no matter how unjust this may be alewe viewed from the side ol of the child the court is bound by the law the learned counsel for petitioner has baa suggested asted tile theo theory that the testator who having teen been shown by arze the evidence of the proponents to have been an honorable and upright man having been aware of the unfriendly feeling that existed in his family toward the petitioner titi tit ioner and her mother in the interests of peace and harmony or pos possibly at b y under a mistake of fact as to the p pa a terail eternity ty of the child concluded to omit the pe tit ioner from his will thinking that in the event of its transpiring that she was his bis child she would take a distributive share of his bis estate under the statute herein bei ore considered I 1 must admit that most of the witnesses in the trial of this cause gave some color to this theory itis it is certainly bave y a charitable view and one not do do v violence olence to his bis fair name as an honorable man but does it help the case of the petitioner can a court i quire inquire 11 into the in motives which impel a testator to omit to provide for his bis child ju in the deposition position cho of his property by y will I 1 think not under our kopor ger aund jaws w every y person over the age of 18 of sound mind admay may by last will dispose of all bise bis estate stater r a al and personal 1 L of utah ima section 2617 there is no limitation liere nowhere now lere tere do I 1 find authority for a court coart to te inquire into the motives of a testator in omitting to provide tor for his child when it is cear that he intended to do so no matter how unjust or unreasonable the disposition if the statute has haq been complied with all the world is bound by his will the lips of the testator are sealed scaled in death the court is asked to solve the mystery and under the weight of authority and the evi evidence evidente dende I 1 feel bound to decide this case in favor of the proponents justice thereby be dethroned dethroner I 1 can but express the hope that the devisees devi sees under the will wil i m y otake take such a course now that the paternity of the child is established as will cast no cloud upon the fair name of the dead the petition of plaintiff for intervention ia is dismissed 0 W bartruf judge |