.'BOMAN V. BOMAN.
329
BOMAN
et al.
'l1. BOMAN.
(Cilrcutt Court of .AppeaZs, Ninth Cilrcutt. Jannary 25, 1899.) INTEBTAOy-EFFEOT OF WILL.
A clause in a will devising "to each of my1;leirs at law the sum of'one dollar" will not take the will outo! the operation of a statute which provides that a testator shall he deemed to die to such child 01' children, or, ill case of their death, descendants of such c1lildor children, "not named or prOVided for" in his will. Code Wash.S 1825. 47 Fed. Rep. 849. reversed.
, Appeal from the Circuit Court of the United States for the District of Washington. In Equity. Action by Albert T. Boman and Arrisa L. A. Bilbrey against Mary E. Boman, to compel her to render an account as executrix, etc., of 'George M. Boman, deceased. Plaintiffs appeal from a j sustainingdefendant's demurrer to the complaint. Reversed. Andrew'F:'Burleigh. for appellants. . JuniWj Rpchester, for appellee. Before DEADY, HAWLEY, and MORROW, District Judges. :\ HAWLEY, District Judge. Thisaction was institutedto compel resp6rid ent to render an account as executrix of the estate of George M. Boman; deceased, and to pay to plaintiffs the amount which they, as children of the deceased, are legally entitledto receiv.e. The complaint, among other things, alleges that plaintiffs are citizens of the state of Tennessee; defendant is a resident oBhe state of Washington; that, in 1861, George M. Boman, now deceased, was married to Armilda C. Ramsey, both parties being at that time residents of the state of Tennessee; that plaintiffs are the issue of said marriage, and children of the said George M. Boman, born, respectively, in the years 1862 and 1864; that on the 1st day of December, 1890, in the county of Kings, state of Washington, the said George M. Boman made his last will and testament, a copy Of which is annexed to and made a part of this coni plaint; that on the 19th day of December, in the state of Washington, the said George M. man, husband of the said defendant, died, leaving surviving him two children, viz., the 'plaintiffs herein; that at the time of his death he was possessed of an estate of about that neither the plaintiffs nor their descendants have had any proportion of his estate bestowed upon them; or either of them, in his lifeAime, by way of advancement or otherwise; that he did not name the plaintiffs, or either of them, in his will, nor did he make any provision for them, or either of them, therein, or erwise howsoever. The defendant demurred to this bill of complaint upon the ground that it did not state a case entitling plaintiffs to any relief against defendant. This demurrer was sustained, and, plaintiffs decliningto amend their bill, judgment was rendered against them for costa, from which judgment plaintiffs appeal.
r
330 .
FEDERAL :REPORTER,
vol. 49.
The questions to be considered upon this appeal call for an interpretation of certain clauses in;..the wiU, and a construction of certain provisions of the statute of Washington. The will reads as follows: "Item lst. I give, beqileath.anddetise to each of my heirs at law the sum of one dollar. Item 2nd. I give, bequeath, and devise all the rest, residue, and remainder of my estate and property of every kind, real, personal. and Boman. lte"" 31'd. mixed, and choses in action,ta my belovetl wife, !·no\llinate and aPIloint my said wife,:MtiryE. Boman, sole exedutrix of this Will, and. 1 will and she exellut",thls wiU",ith!1utgiving any bond. Item 4th. I'will and devise that my this will, pay all my just debts and funeral expenses, and settle my estate In her own way, without the intervention of probate court or any court; and I will and devise that the title to all of my salC\-estatearld'property vest upon the probate of this will, without any judgment or order of the court to that end, in my said E. Boman.": . ,:,_ ., .'!' I'· 1 Sectidns'1325 and 182.6 6fthe Code of Washirigtoll.relating to wills, . y . read asfbndws!; "Sec. 13U.If a persciri"make his and or children, 01' descendants of such child or children, incase 01' their death, not named or Ilrovided for in such will, although born after the lD'aldngdf such will or the death of thetestatot,' eve'ry such. testator; so far as ihe. shalll:egard such child or children, or their descendants, not provided for, shall be deemed to die and. such .or childrlln, I.>r their Shall be entitled tOlJuc.h:,proporti'on oflhe estateot the testator, reltl al1d personal, as It he had died intestate, and the sallie shan beiailsigtted to:them,:and all the (/ther belrs, ail"iseea,. lind legate",s Ilhall refund their pl'opottional. part. Sec. 1326. If sllch chUa or children, or their (lescentJllUts, shall haVe proportion estate upontbetnin the,t!lstator'I!Iife-time, by way of of th..y shall take nothl,llg. by. virtue of thll V,rqvislons of the preceding sections," Code Wash. 1881, p. 235.' .. I:' · . ' . '. I . ",' · .
How should section 1325 be construed? This provision is identical with theatatutesofMis80uri and .0fOregon,.and.wemust therefore look to the decisions of these states' to ascerlaiIl'its proper Judioialconstruction. Prior to the. adoption of the WashiBgtonCode, it had been decided by the supreme courts of Missouri and Oregon that the statute did not re'" quire that any actual provision should be made for the children, nor that the children. should be necessarily designated by name. The object and intent ofthe: statute was to provide against the children ofa testator, or descendants ot'snch· child or.children, from being overlooked or forgotten. The fact that the children are not named or alluded to in such a manner as to !iLffirmatively. show· that. they wllre in the. testator's mind will furnishconolusive evidence:that they .were forgotten,: and that the testator unintentionally left them unprovidedfor. WetheraUv. Harri8, 51 Mo. 68; Gerr.i8h Yo, Gerri8h,80r.351. The statute creates a presumption that the children were forgotten unless they are named'or provided for in the wilK dPounds v. Dale, 48 Mo.: 278. RrcHA.RIisoN, J., in delivering the opinion of the coun in Hockensrnithv.:Bluaher, 26 Mo. 237, said that the object of this provision of the statute ,"is to'produce an intestacy only when the child, or the:deE!cendantsqhnch.child, ,are unknown or
v.
BOMAN.
331
forgotten, andthusunintentionaHy omittedjand the presumption that the omission is unintentional may be rebutted when the tenor of the win, or any part of it, indicates that the child or grandchild was not forgotten." . In the light of these decisions, what is the proper construction to be given to the words in item 1 of the will,-"I give, bequeath, and devise to each of my heirs at law the sum of one dollar?" The contention of respondent, briefly stated, is that the term "heirs at law" includes the children of the testator, and that it therefore necessarily follows that the children were sufficiently referred to; that they were provided for, and were not overlooked or forgotten. This contention is sought to be maintainedupon the authority of AUen v. Olaybrook, 58 Mo. 124. The prin- ' ciples decided in that case are unquestionably corred as applied to the facts of that case, which are wholly different from those with which we have to deal. The point involved in that case did not call for any construction of the statute, but related solely to the proper interpretation of the clause in the will which, in speaking of the residue of the estate of the testatrix, directed the executors of the will to the one-half thereof, by trust or otherwise, for the benefit of my niece, Mrs. Jane Allen, daughter of my sister Gatewood, (who is said to be in destitute circumstances,) and her children, and not to be sUbject to the control of her present husband." The contention there was that this provision in the will was a bequest for the henefit of Jane Allen alone, and that the mentioIl of the word "children" was only for the purpose of showing that' it was intended that Jane Allen should hold the property for her children, free from the control of her husband. The court held that the bequest was made for the benefit of Jane Allen and her children, and that no power was attempted to be vested in Jane to dispose of the whole propertyj and in coming to this conclusion the court said: "The children having bel.'n dpsignated as a class, without fUlther description. the gt'neral rule is that it will include &11 who answer to'the description at the time the will took effect." That authority gives no color to the proposition that by the llse of the words" heirs at law" in Boman's will this court should hold that his children were in his mind at the time he. made his willj that they are referred to and prOVided for, and were not overlooked or torgotten. His children were not designated as a class. No children were mentioned or specifically referred to. The words" heirs at law" may, it is true, be read to mean "children," and should always be so construed if the context distinctly shows that the words were employed in that sense by the testator. The term "heirs at law," however, in its general definition, includes many others: It is not limited to children. It may be used, and is often used, in cast's where there are no children. It includes parents, brothers and sisters, etc. Who can tell by reading this will what particular heirs were in the mind of the testator at the time he signed the will? Does it clearly appear that it was his intention to provide for his children? Is it manifest upon the face of the will that his
FEDERAL RE-ROR',l'ER"VOl.
49.
children werE! not overlooked' or forgotten? Certainly qot. In Hargadine. v. Ptilte, 27 Mo. the testator bequeathed all his estate, real, personal, and mixed, to his wife, to the exclusion of all and every person or persons, be the same relatives or not; and the court held "that the I relatives' might be very naturally understood as not embracing .one's children." The controlling question to be considered is not whether the children would be entitled to inherit and recover the amount bequeathed to the hetrs at law, but whether or not it appears upon the face of the will that the children were in the testator's mind at the time he made the will. The terms of the will, inorder to show the intent of the testator to remember his children, or to make provision for them,sho.\lld, under the j.)e dear, specifi,c, definite, and certain. presumptions of Ute la\f:sreall in fllvorot:the These presumptions, in order tQ,4islQl:kerit thenl,ortp cut them off with ashilling;9f other nominal ooJ,y be overcQme by the use of wordsplai111y that his.children il) his mil)d a,t the ,time his will. 'l'hiIl must\lj.ppear either by express mention, Or 'Qy necessary implication of the wjl1 itself,' has been beld in states having a ditfenmt from the one un\ler o9nsideration that parol evidence is IldIlil,isllibl,eto sbow that the chilclren were from the will., v. Fosket,6 Mete. (1\:I:a8S.) 400; Ramsdill v. Wentworth, 101 123 Mass. 8:; Whittemorev.Ru88ell,80 Me. Rep.l{)7jLorieua: v. KeUe'(, 5 Iowa, 196. ,But in states similar statute tQ that und,er consideration it has heel) uniformly held that such evidence is inadmissible. ,Bradley v. B,rq,f1kJI" 24 Mo. 311; Pounds y. Dale. 48 Mo. 270i qhacev, Ohace,6 R. I. ,Qarraud's Estate, 35 Cal. 336; .Estate oj Stevel!-81 83 Cal. 322, 379. It was the design oUhe statute, as was. said by BELL, 23 Pac. J., in.Qqgev. Gage, 29 N. H. 5:33,...... should ·beunderstoodto intend to disinherit one of his children or grandchildren, who are by nature the first objects of his bounty. upon any or upon any less clear" eVidence than his actually namreferring to them personally. so as to show that he had them ing' Of i'n his it being reasonable to suppOSe that those about the sick and the aged would' not be anxious to remind them of the absent unnecessarily. This isasimple and plain rule, easily understood and remembered by everybody. is' in accordan.;:e with the general impression, doubtless d,erived from the language pf statute. " ,The judgment of the circuit court is reversed, and the cause remanded.·
&p.
Jj
833 SALMON V. MILLS 8C
aL
(otrmdt Court Qf
Eighth Circuit. February t, t899.)
L
ATTACHMENT-MoTION TO VAOATE-WAIVER.
Under Mansf. Dig. Ark. §§ 881, 883, (in force in the Indian Territory,) a motion to vacate an attachment is not waived by filin.g affidavits controverting the fliCts statod in the affidavit of attachment, and the motion may be heard and disposed of after the questions raised by the affidavits have been decided by the verdict of a jury, and such verdict has been set aside by the court on motion for a new trial. Under the provisions of Mansf. Dig. Ark., a defendant in attachment may move to vacate the attachment though he disclaims any interest in the property.
S.
SAME-DISCLAIMER 011' PROPERTY.
.. SAME-AlI'lI'IDAVIT-AMENDMENT.
Mansf. Dig. Ark. § 815, declares that affidavits may be amended so as to embrace any grounds of attachment that may exist 'up to the time of the first judgment on the same, .Section prOVides that pleadings may bema,de definite .and certain by amendment, and section 881 declares that the affidavit of attachment and the affidavit controverting the same shall be considered as the pleadings on the issue as to the attachment. HeW. that, under provisions, an.affidavit whf,cb, uncertain because the disjunctive is used between the stateJDent ot ,grounds may,be amended on motion made immediately after it is held izisuflicient by the cour,t., . . An issue on attachment was tried by a jury, and found for the plaintiff. The a new trial, and. afterwards, on motion to vacate the attachment; held the aflldavit insufficl.en,t, whereupon plaintiff moved to amend it. . Beld, that the court could not refuse the amendment on the ground that from its of the evidence on the jury trial the amendment would not be in furtherance of jQ.8tice. . .' , . ' , . .' . . . .'. .... ·
" ,SAME-J)ISOBETION OJ' COURT.
,
In Error to United States Court for ' Ge(YT'ge E. Nel8cm, for plaintiff in error. . ' Nelscm (lase andW. B. Glasse, for error. .' '., Before CALDWELL, Circuit Judge, and SHIRA.S and THAYER, DiStrict Judges. SHIRAS, District JUdge. On the 2d day of May, 1889, the plaintiff in error filed in the United States court for the Indian Territory a complaint at law, wherein he sought judgment against Abraham and Jackson Mills for the sum of $9,983, claimed to be due on ,two promissory notes, and in aid of such action he. sued out a writ of. attachment alagainst the property of the defendants above named. leged for the issuance of tQe attachment were set .forth in tQe aftidavit accompanying the complaint in the following form: "That said Abraham and Jackson Mills are about to remove, and have removed, their property, or a material part thereof. out of the Indian Territory, not leaving enough therein to satisfy plaintiff's claim or tbe claim of said defendants' creditors; second. have 8014. conveyed, and otherwise disposed of their property. and suffered and permitted it to be sold; with the frauduleI;lt intent to cheat, "hinder, or delay, t,heir creditors; or, third, are about to sell and conveyor otherwise dispose of their property with such in. .
The writ was issued and served by levying upon certain cattle and horses; and thereupon one C. M. Condon, claiming to be the owner _f the property levied on, save one horse, .obtained leave in