Bachinski v. Bachinski's Estate

Grant, C. J. {after stating the.facts). 1. The petitioner was 11 years old when the will was made. She lived with her fatherabout six years thereafter. Respondent sought to show, on cross-examination of the peti-' tioner, that she, when about 18 years of age, became an inmate of a house of prostitution. The testimony was properly rejected. People v. McLean, 71 Mich. 309; People v. Mills, 94 Mich. 630; People v. Abbott, 97 Mich. 484. 2. It is claimed that on account of this conduct an estrangement took place between the father and daughter. Even if this were so, it' would have no bearing upon the condition of affairs at the time the will was made, six years before, when petitioner was a little over 11 years of age, neither would it afford any reason for his omission to provide for her. The record contains no evidence tending to show that there was the slightest estrangement between them at the date of the will, neither could there well be in the case of a child of such tender years. The only excuse offered for disinheriting his own daughter is that Mrs. Plath had loaned him some money. 3. Kinney v. Kinney, 34 Mich. 250, and Waldron v. Waldron, 45 Mich. 350, have no application to a case under this statute. Those cases apply to the construction of provisions of wills devising property to devisees therein named, not to a case where the testator omits his own offspring from his bounty. There is a serious conflict in the cases as to the character of the evidence required by this and similar statutes. 1 Underhill on Wills, § 243. A rule that the question must be determined “from the four corners of the instrument” would render .the statute of little [696] value. In reason and common sense resort must be had to extrinsic evidence. The intent cannot often appear from the will itself. See note to Thomas v. Black, 8 Am. Prob. Rep. 340 (113 Mo. 66), where numerous authorities are cited; Coulam v. Doull, 133 U. S. 216. It appears from the testimony of the scrivener who drew the will that the testator knew that he omitted to mention his daughter, but it also appears that the scrivener told him that it would not cut off his daughter from a share in his estate. The mistake therefore was one of law. Is such mistake within the statute ? We held that it is not a universal, though a general, rule that equity will not relieve against a mistake of law. Renard v. Clink, 91 Mich. 1. It would certainly be a harsh rule to hold that where it clearly appeared that the testator omitted his own children from his will by a mistake of law and in the belief that he had not disinherited them, the omission was intentional. This question is decided under á statute practically like our own by the supreme court of Massachusetts. Ramsdill v. Wentworth, 101 Mass. 125. It was there said: “ The nature of the mistake is not material. There is no distinction between mistake of fact and mistake of law in this regard. If the testator, in ignorance or mistake of law, supposed that he had provided for.them by the terms used in his will, then his failure to name them, or to use apt words of devise to them, cannot, within the meaning of the statute, be regarded as an intentional omission.” In this case it is clear that the testator did not, within the meaning of the statute, purposely omit his daughter from his will. The statement made by the scrivener to him, and statements made by the testator that his' property would go to his two children, were competent to show that he unintentionally omitted petitioner from his will. We held in Re Estate of Stebbins, 94 Mich. 304, that although the testator had named his grandchild in his will but without making any provision for her, the question of whether he intentionally or unintentionally omitted [697] her from the will was a question of fact for the jury. We think there is stronger evidence in this case than in that to show the testator’s intention. 4. The court did not err in refusing to permit the respondent to show the financial condition of the estate of the deceased. Whether the deceased left an estate large or small has no bearing whatever upon the issue. The amount of the estate would not afford any reason for excluding his only legitimate child from his bounty. 5. It is also urged that the court erred in refusing to admit certain letters, claimed to have been written by the petitioner but which she denied writing. Neither the letters nor a statement of their contents are in the record. The question of their admissibility, therefore, is not properly before us. Judgment affirmed.. Moore, J., concurred. Ostrander, J. I agree to an affirmance of the judgment. As to the point first discussed in the opinion of Mr. Justice Grant, the record discloses that the petitioner denied on her direct examination that she had ever been an inmate of a house of ill-fame. Appellant then offered to prove the fact. I think, under the circumstances of this case, as set out in the opinion of Mr. Justice Grant, the testimony was properly excluded. Upon the subject of the condition of the estate of the deceased, which appellant offered to prove and was not permitted to prove, I concur in holding that the condition of the estate was not a part of the res gestee, which is the ground, and only ground, asserted in this court for admitting thé testimony. Blair and Montgomery, JJ., concurred.