Halfmoon v. Moore ( 1955 )

PORTER, Justice.

No evidence was introduced in this cause. The matter was submitted to the trial court upon a stipulation of facts. The question for decision on this appeal is whether the trial court made the proper conclusions of law and judgment from the facts submitted to it.

On October 7, 1948, Jeanette Halfmoon, an Indian woman, duly made and executed her last will and testament. The will contained the following provision:

“Second. — I give, devise, and bequeath to my granddaughter, Dorothy Halfmoon, Age 17, an unallotted Nez Perce Indian, my own Nez Perce Allotment No. 663 described as Lots 9 and 24, Sec. 15, Lots 13, 14, 15, and 16, Sec. 16 Twp. 35, R. 3 W, B. M., containing 120 acres, subject to a lifetime interest of my son, William (Willie) Halfmoon, age 53, and upon the decease of said son, the lifetime interest shall continue to my grandson, Joseph Halfmoon. Upon the decease of both William and Joseph Halfmoon the property mentioned herein shall be taken and inherited by my granddaughter, Dorothy Halfmoon.”

The will named Mary Halfmoon Moore as residuary devisee and legatee of the estate. Thereafter, and prior to her death, Jeanette Half moon sold and conve yed the land contained in her Allotment No. 663 mentioned in the will. Testatrix died on December 20, 1951, and left surviving her a son, William Halfmoon, a daughter, Mary Halfmoon, and a granddaughter, Dorothy Halfmoon, daughter of a deceased son. Joseph Halfmoon, the son of William Half-moon, mentioned in the will, died prior to the death of testatrix.

Testatrix was a resident of Nez Perce County. Her last will and testament was duly probated in the probate court of such county. Appellant herein filed in such court a petition to determine heirship. Appellant claimed that the will having been revoked as to him by the sale of the land in which he was devised a life estate, he was therefore entitled to share in the estate of his mother as a pretermitted heir. Respondents denied the claim of petitioner of a right to share in the estate as a preter-mitted heir and alleged that all of the estate should be distributed to the residuary devisee and legatee, Mary Halfmoon Moore.

The probate court decided the cause against appellant who thereupon appealed to the district court. The district court likewise decided the cause against appellant. Dorothy Halfmoon did not participate in the trial in the district court. Appellant has appealed to this court from the judgment of the district court.

The trial court in its memorandum opinion stated as follows:

“It appears to the Court that a will is not revoked even in part by the sale of property given but that the devise fails because the testator has no property within the terms of the gift.

“Appellant is specifically mentioned in the will but since the conveyance eliminates his gift it must be assumed that the intention of the testator was that he was to receive none of her property.”

In accordance with such memorandum opinion, the trial court made Conclusions of Law Nos. Ill and IV as follows:

“III.

“That the sale by the testatrix of the property theretofore devised to appellant and others, after the execution of her will and prior to her death, does not revoke her will, but the said devise to appeallant, William Halfmoon, and others fails because at the time of testatrix death there was no property in her estate upon which said devise can operate.

“IV.

“By selling the said property, theretofore devised to the appellant, William Halfmoon, the testatrix manifested an intention that said appellant receive none of her property.”

The trial court further concluded that appellant is not a pretermitted heir and that respondent, Mary Moore, the residuary legatee, is entitled to have all the property of the estate within the jurisdiction of the probate court of Nez Perce County distributed to her. Appellant contends that the trial court erred in making such conclusions of law and in entering a decree in accordance therewith.

The cases dealing with pretermitted heirs are numerous. Many of the authorities are cited in the case of In re Fell’s Estate, 70 Idaho 399, 219 P.2d 941. Two additional annotations on the subject are contained in Annotation 94 A.L.R. 26 and Annotation 170 A.L.R. 1317. Many of the cases are not authoritative in this jurisdiction as they are decisions under “Missouri type” statutes which provide that if the heir is not mentioned or provided for in the will, he may take as a pretermitted heir under the statute. The other type of statute is the so-called “Massachusetts type” which provides-generally that if a testator omits to. provide-in his will for a child, such child shall take the same share of the estate that he would, have been entitled to if the testator had died intestate unless it appears that the-omission was intentional and not occasioned by accident or mistake. Decisions-under this type of statute are not always in point in this jurisdiction as our statute does-not contain the words “and not occasioned, by accident or mistake.”' Our statute, Section 14-320, I.C., is as follows:

“When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.”

Dealing with the effect of the subsequent, transfer of property after testamentary disposition of same, we have Section 14 — 317,. I.C., reading as follows:

“If the instrument by which an alteration is made in the testator’s interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary-disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect.”

The word “revoke” is defined by Funk & Wagnalls New Standard Dictionary as meaning “To annul or make void by recalling or taking back; cancel; rescind; repeal; reverse; as to revoke a license.”

In Stone v. Fisher, 65 Idaho 52, 139 P.2d 479, we held that a voluntary alienation by deed of property was wholly inconsistent with the prior disposition of the same in a will and operates as a revocation of the testamentary disposition of such property under the provisions of Section 14-317, I.C.

In the case of In re Fell’s Estate, supra, we stated the rule under our statutes with reference to pretermitted heirs to be as follows [70 Idaho 399, 219 P.2d 942]:

“In order for it to appear that the pretermitted heir was intentionally not provided for, it must appear from the words of the will that the testator had the omitted heir in mind at the time the will was drawn and intentionally omitted such heir from the will. It is not enough that the testator had in mind the omitted heir but he must manifest his intention to omit such heir by the terms of the will. The intention to omit to provide for such heir must be indicated in direct language or by language from which an inference equally as strong may be drawn. The presence of such intention is not the subject of guess, surmise or conjecture.”

The assumption of the trial court that the will was not revoked even in part by the sale of property given thereunder to appellant but that the devise fails because the testatrix at the time of her death had no property within the terms of the gift is contrary to our statutory provision that such a sale worked a revocation of the testamentary disposition of the property. And the trial court erred in holding in effect that because appellant was mentioned in the will but his gift was later eliminated by conveyance it must be assumed that the intention of the testatrix was that the heir receive none of her property. Such holding is contrary to our determination in the Fell case as to what is necessary to show an intentional omission to provide for an heir. Such conclusion is based upon an assumption which is contrary to the rule that there is a rebuttable presumption that the omission was unintentional. In re Fell’s Estate, supra; 26 C.J.S., Descent and Distribution, § 45, p. 1052.

We are of the opinion that under Section 14-317, I.C., as interpreted by Stone v. Fisher, supra, the will in question stands as if the revoked clause had never been present therein. That the action of the testatrix in transferring the land in question should not be considered as showing an intent on the part of testatrix to disinherit appellant but should only be given the effect provided for by statute, that is, a revocation of the provision in the will as to appellant. Under the principles set out in the Fell’s Estate case there is nothing in the will after the revocation became effective or in the stipulated facts from which it clearly and fairly appears that the testatrix intentionally omitted to provide for appellant.

The testatrix was an Indian woman, 73 years of age, who could not read, write or speak English; and who was a ward of the federal government. The will had to be read to her by an interpreter; and she signed the same by her mark. As was said in In re Parrott’s Estate, 45 Nev. 318, 203 P. 258, the object of the statute is to protect children against omission or oversight which not infrequently happens from sickness, old age, infirmities or other peculiar circumstances.

It is urged that the decisions in the following three cases are contrary to our holding in this case: Kinnear v. Langley, 209 Ark. 878, 192 S.W.2d 978; In re Callaghan’s Estate, 119 Cal. 571, 51 P. 860, 39 L.R.A. 689; Faucher v. Bouchard, 47 R.I. 150, 131 A. 556. We do not- consider such decisions authoritative and controlling here. The Arkansas case was decided under a “Missouri type” statute and turned upon the question of whether the pretermitted heirs were “mentioned” in the will. The California case did not involve the revocation of a testamentary devise by a sale of the property subsequent to the execution of the will. The Rhode Island case was decided under a statute not identical with our statute; no mention is made in the decision of a statute similar to our Section 14-317, I.C., on revocation of a provision in a will by a transfer of property inconsistent therewith; the conclusion of the Rhode Island Court that such a transfer is. conclusive evidence that the testator intended that the devisee mentioned in the will should take nothing is not supported by any authority; and our research has not disclosed that the Rhode Island case has ever been cited and followed on the point in question.

The land devised to appellant and afterwards sold and transferred by the testatrix was held in trust by the federal government and when it was sold the proceeds thereof were likewise held in trust. The land was sold for $19,050. The testatrix used some $4,981. This use together with the expenses of $2,035.98 in the matter left $12,033.02, which was distributed by the Bureau of Indian Affairs, on the basis of the values of the life estate and remainder, in the sum of $5,855.59 to appellant and $6,177.43 to the remainderman. This attempt by the Bureau of Indian Affairs to-substitute part of the sale price of the land in question for the provisions in the will can no way affect the principle involved in this litigation. It is true that it has been stipulated that these particular funds are not a part of the estate to be probated in the Idaho courts and are under the jurisdiction of the Bureau of Indian Affairs. Nevertheless, the remainder of such funds are in fact a part of the estate of the testatrix, and appellant and the remainderman may well be charged with the sums received by them from the Bureau of Indian Affairs in the final distribution of the estate on the theory that such sums are in the nature of advancements to the two heirs in question.

Under the authority of Section 14-320, I.C., and of Section 14-317, I.C., as construed by Stone v. Fisher, supra, and the principles announced in the case of In re Fell’s Estate, supra, the judgment of the trial court is reversed and the cause remanded with direction to enter judgment in favor of appellant. Costs to appellant.

TAYLOR, C. J., and SMITH, J., concur.