Hare v. First Security Bank

Conley Byrd, Justice. Appellant admits that appellee Carolyn Sue Davis was not mentioned in the will, but asks this Court to adopt the rule that in the case of pretermitted children, extrinsic evidence be admitted to show the testator was aware of the pretermitted child and intended to disinherit. Appellant then suggests that, if the evidence be sufficiently clear, cogent and convincing, the expressed terms of the will be effectuated despite the pretermitted heir statute. Our pretermitted child statute, Ark. Stat. Ann. § 60-507(b) (Repl. 1971), provides: “b. PRETERMITTED CHILDREN. If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.” We cannot adopt the rule requested by appellant admitting such extrinsic evidence. Our cases uniformly hold that extrinsic testimony is admissible for the purpose of showing the meaning of words used in a will or for the purpose of placing the court in the position of the testator at the time of using the words but that such evidence is not admissible for the purpose of showing what the testator intended but failed to set out in the will. See Hardy v. Porter, 245 Ark. 729, 434 S.W. 2d 61 (1968) and Vaught v. Vaught, 247 Ark. 52, 444 S.W. 2d 104 (1969). Affirmed. We agree: Harris, C.J., and George Rose Smith and Holt, JJ.