Duensing v. Duensing

Smith, J., (after stating the facts). We will not discuss appellee’s first contention, as we think the second position is well taken and is conclusive of the case. Section 8020 of Kirby’s Digest provides that if any person shall make a last will and testament and omit to mention the name of a child if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate. The question therefore is whether appellant is mentioned in said will. Appellant cites numerous eases to support the text of 30 Am. & Eng. Enc. Law, 673, where it is said: “It is well settled that parol evidence is not admissible to add to, vary or contradict the words of a written will, not only because the will itself is the best evidence of the testator’s intention, but also because wills are required by the statute of frauds to be in writing.” The cases all agree that the testator’s intention can be gathered only from the will itself and that extrinsic evidence is not admissible to prove an intention in regard to the disposition of the property not expressed in the will. But this rule does not exclude extrinsic evidence to show who the beneficiary is, as such evidence is always admissible for the purpose of identifying the beneficiary, where there is uncertainty or ambiguity in the designation. McDonald v. Shaw, 81 Ark. 235. The agreed statement of facts shows that the first son died in 1870 and that appellant was born four years thereafter and was thirty-three years old when this will was executed in 1906; and there is no intimation that the testator was unaware of the death of his first son. The language of the fifth paragraph precludes that idea, because it recognizes the testator has only three children by his first marriage and that two of these are sons. The testator had two sons living by his first marriage and he provided for them under the designation of children by his first wife. The sons named fit that designation and no one else could fit it. Appellant relies upon the case of Gray v. Parks, 94 Ark. 39, where a testator devised a portion of his estate to a son named Harrison T. Gray, who had died prior to the execution of the will and the court there held that as no mention had been made of the names of the children of Harrison T. Gray, who were living at the time of the execution of the will, that the testator had therefore died intestate as to these children. But, while it does not appear from the facts of that case, it is fairly inferable that the testator was ignorant of the death of his son, Harrison T. Gray, yet the devise was made to the son who was dead, and fio provision was made for his children who were living, and the court there held under section 8020 of Kirby’s Digest that the testator was intestate as to these children. But here the testator was not ignorant of the facts; he knew he had three children living by his first wife and undertook to provide for them as such, and such designation would have been sufficient had the names of all been omitted. Such a designation was upheld in the case of Brown v. Nelms, 86 Ark. 368, where the language of the will was as follows: “I give my wife one-half of all my property and one-half to my children,” and it was there said that a will in which the testator provides for all hi>s children as a class, without expressly naming them, is a sufficient mention of his children to comply with Kirby’s Digest, § 8020. We think the fair and reasonable interpretation of the language of the will is that paragraph 5 intended and designated the three living children, by the testator’s first marriage, and sufficiently named them to meet the requirements of section 8020 of Kirby’s Digest and the judgment of the court below is therefore affirmed.