Lurie v. Radnitzer

Mr. Justice Carter delivered the opinion of the court: The question here is, whether it appears by the will of Adolph Lurie, deceased, that it was his intention to disinherit his then unborn child, who is one of the appellees herein. Section 10 of chapter 39 of the Revised Statutes is 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.” The will upon its face bears evidence that at the time of its execution the testator knew that his wife was pregnant with this child, for, independently of the fact that the erased clauses, whether originally written by him or at his direction or not, were after such erasures easy to be read, he expressly refers in the certificate to the will, signed by him, to the corrections and erasures, (and there were no such corrections or erasures except those canceling the provisions mentioned in the fifth and ninth clauses,) and stated that such corrections and erasures were made before the will was signed, and with his sanction and approval and by his order. We think, therefore, that it sufficiently appears that the testator had said unborn child in mind. But the question still remains whether it appears by the zuill that it was his intention to disinherit such child. It must be conceded that the erased clauses are no more a part of the will than if they had been so completely erased that they could not be read or had never been inserted in the draft for such will; and it must further be admitted that no provision was made in this will for such child. So it is by no means clear that the case does not fall within the section of the statute above quoted, for the child was born after the will was made and no provision was made for the child in the will, and unless it appears from the will itself that it was the intention of the testator to disinherit the child, the case must be controlled by and the child must take under said section of the statute. We have heretofore held that it is not necessary that such intention to disinherit should expressly appear by the will, but that it is sufficient “if the testator simply indicate by his will that such was his intention.” (Hawhe v. Chicago and Western Indiana Railroad Co. 165 Ill. 561; Osborn v. Jefferson Nat. Bank, 116 id. 130.) In the case-at bar the most that can be said, it seems to us, is,.that the testator knew of such child, and that for reasons not disclosed he thought it proper to make no mention of it in his will. The will contains nothing from which it can justly be said that the testator did not intend that the statute should have its full operation. The presumption must be indulged that he knew the law, —that he knew of the provisions o'f this statute. The will contains no language having any tendency to show an intention to disinherit. So far as this child is concerned, it contains no negative expressions whatever, and were it not for the erased provisions appearing in connection with the will as finally made, and the reference to them in the certificate signed by him, it would be clear, beyond doubt, that said posthumous child would be entitled, under the statute, to its share. The mere fact that the testator knew that such child was likely to be born to him, and that he had such knowledge when he executed his will, would not be sufficient, under the statute, to deprive such child of his share in his father’s estate. It will be noticed that the will, as originally drawn, undertook to dispose of six-fifths of the estate. This anomaly was corrected by canceling the provision, as it then stood, for this unborn child. It may be observed, also, that the testator could not know that the child would be born alive. He did know, however, as it must be held, that if he made no provision for the child, and did not by the will show an intention to disinherit it, it would, if born alive, receive its due share under the statute making provision in such cases. Had it been his intention, as contended by appellants, that the provision in the will giving his wife two-fifths of his estate should inure also to the benefit of this child if born alive, we would expect to find something in the will to indicate, such intention. If such intention appeared in any way by the will this provision of the statute would not apply, for then a provision would have been made by the will for the child. Suppose the testator had, himself, prepared a draft of his will and had signed it, which draft contained the same provisions which were erased in- the instrument offered in evidence, and had submitted such draft to his counsel with the request to incorporate such provisions and to draw an instrument for a will in accordance therewith, for him to execute, and had afterward directed his counsel to omit from such instrument the provisions in the draft made by him relating to such unborn child, and such instrument had been so drawn, omitting the provisions last mentioned, and had been duly executed by him; could the draft for such will as originally prepared by him be held sufficient to show, either expressly or impliedly, that it appeared by the will that the testator intended to disinherit such child? If not, can the canceled provisions of this will have any greater force as tending to prove such intention? The meaning of the statute is, that the intention to disinherit must appear from the will, and the court below therefore properly refused to allow proof to be made as to what the testator said when the erasures above mentioned were made. While,- as said in Hawhe v. Chicago and Western Indiana Railroad Co. supra, evidence as to the circumstances surrounding the testator at the time the will was made is often proper and sometimes indispensable to an intelligent construction of the language used, by enabling the court to stand, in the testator’s place and to read the will in the light of those surrounding circumstances, still this would not authorize the admission of evidence as to what the testator said his intention was with respect to his will or any part of it. The intention must be derived from the will itself. We are of the opinion that it does not appear by the will in question, expressly or by implication, that the testator intended to disinherit the child in question, and that the construction placed upon the will by the court below was correct. We have been referred to many authorities under similar statutes of other States, and which we have examined, but none of them cover the precise point here involved, nor does the reasoning employed lead us to any other conclusion than the one stated. Finding no error, the decree of the Superior Court will be affirmed. Decree affirmed.