Argument for Appellants.

of this rule of law is altogether independent of the intention of the testator except as that intention may be expressed in the will.

It is a general rule that the intent of a testator must be found on the face of the will, and that extrinsic evidence is inadmissible to show it, the exception being where such evidence is needed to remove a latent ambiguity. Mann v. Mann, 1 Johns. Ch. 231; Tucker v. Seaman's Aid Society, 7 Met. 188; Spencer v. Higgins, 22 Connecticut, 526; Kurtz v. Hibner, 55 Illinois, 514.

To this general rule and its limitations as stated we find no opposing authority, but it is contended in behalf of the appellee that this rule is not applicable to the case at bar.

Our statute on the subject of pretermitted children is but an outgrowth of the common law doctrine of the implied revocation of a will by a subsequent marriage and birth of issue, and the authorities defining that doctrine of the common law will assist in arriving at the proper construction of the statute in question.

Under the doctrine above referred to, it was well settled that no revocation would be implied by law if the testator in his will made any provision, however small, for the future wife and children; such provision furnishing intrinsic evidence that he did not intend the future alteration in his circumstances to work a revocation of his will. Kenebel v. Scrafton, 2 East, 530, 541.

It was then contended, as it is claimed by appellee in this case, that the entire doctrine was one of presumption raised by the parol proof of extrinsic circumstances, viz. the subsequent marriage and birth of issue, and that a presumption so raised could be rebutted by like parol evidence.

This contention received serious consideration in Marston v. Roe, 8 Ad. & El. 14, decided in 1838; the case having been argued in the presence of all the judges of England, with the exception of Lord Denman, as stated in the opinion; and it was in that case decided that no extrinsic evidence would be admissible to prove an intention against revocation, but that the revocation took place by virtue of a condition tacitly an

Argument for Appellants.

nexed to the will by the law, independent of the intention of the testator, except as such intention was expressed in the will. A portion of the evidence so excluded was, as in the case at bar, the drafts of two former wills.

And the reason for the exclusion of such evidence is stated to be, that the statute required wills of real estate to be in writing, and that the object of the statute was to prevent the title to real property from being dependent on " the perplexity and uncertainty of such conflicting evidence."

The same reason exists in this Territory. See sec. (654), p. 265, and sec. (686), p. 271, Compiled Laws of Utah, 1876. The case of Marston v. Roe has been always followed in this country. 2 Greenl. Ev. §§ 684, 685; C. B. & Q. Railroad v. Wasserman, 22 Fed. Rep. 872.

In Massachusetts in 1783, a statute was passed containing the following provision, viz.: "That any child or children, not having a legacy given them in the will of their father or mother, shall have a proportion of the estate of their parent assigned to him, her or them, as though such parent had died intestate. Stat. of 1783, c. 24, § 8. It was the well settled construction of this statute by the Supreme Court of said State, that although the child had no legacy left him in the will of the parent, yet if an intention to omit him appeared, he would not be entitled to any portion of the estate. Tucker v. Boston, 18 Pick. 162, 167; Wilson v. Fosket, 6 Met. 400; S. C. 39 Am. Dec. 736. But it was equally well settled that such intention could only be made to appear by intrinsic evidence, and that all extrinsic evidence of such intent was inadmissible. See cases above cited.

After this statute was thus judicially construed the laws of Massachusetts were revised. Sec. 21 of c. 62, Rev. Stats., provided that an heir for whom an ancestor omits to provide in his will, is entitled to a distributive share of the ancestor's estate, unless he shall have "been provided for by the testator in his lifetime, or unless it shall appear that such omission was intentional, and not occasioned by any mistake or accident." It is stated by the Commissioners for revising the statutes, in their note to the section last quoted, that it was taken from

Argument for Appellants.

Stat. 1783, c. 24, "adopting the construction which has been given to it by the Supreme Court." See brief of counsel for appellee in Wilson v. Fosket, cited ante.

Under this last statute Wilson v. Fosket was decided in 1843. That case, without overruling the prior cases in Massachusetts under the statute of 1783, or intimating a doubt of their correctness, decided that the commissioners "had builded better than they knew," and that under the new statute parol evidence, including evidence of the parol declarations of the testator, was admissible to show that the testator intended to omit to provide for his child. That case has ever since been followed in Massachusetts under the same statute.

Iowa adopted the Massachusetts statute, last cited, and adopted with it the judicial construction placed thereon by the Massachusetts courts. Lorieux v. Keller, 5 Iowa, 196; S. C. 68 Am. Dec. 696.

We submit that unless the Massachusetts cases under the new statute find their warrant for the admission of extrinsic evidence in the words, "and not occasioned by any mistake or accident," they are opposed to both principle and the weight of authority. It is difficult to conceive how a mistake or accident can be shown except by extrinsic evidence, and such mistake or accident as will permit the child to inherit has been held in Massachusetts to be perfectly consistent with an intentional omission of the child's name from the will. Ramsdill v. Wentworth, 101 Mass. 125.

In Missouri the statute is substantially the same as the Massachusetts statute of 1783, and has uniformly received the same construction, viz.: that to disinherit a child it is not necessary that he should be named or provided for in the will of the parent, if the omission to do so appears to be intentional; but that such intention can only be proved by intrinsic evidence. Bradley v. Bradley, 24 Missouri, 311; Burch v. Brown, 46 Missouri, 441; Pounds v. Dale, 48 Missouri, 270; Wetherall v. Harris, 51 Missouri, 65. See, also, Chace v. Chace, 6 R. I. 407; S. C. 78 Am. Dec. 446.

The Utah statute in question is precisely similar, it seems to us, to the Massachusetts statute of 1783 and to the Missouri statute as they were judicially construed.

Argument for Appellants.

In California in 1868, in the case of Estate of Garraud, 35 California, 336, section 17 of the Stat. of Wills of that State, of which (694) sec. 10, Comp. Laws of Utah, 1876, is an exact copy, first received a judicial construction by the Supreme Court. In that case it was held that the intention of the testator to omit to provide for his children can only be gathered from the face of the will; that it can only be proved by evidence competent to prove any other testamentary intention, and that evidence of the acts and declarations of the testator is inadmissible to prove such intention.

Suppose at the time of the actual execution of the will, the testator unintentionally omits to provide for his children, but that afterwards he changes his mind and declares his intention not to provide for them, is the will ambulatory in the meantime? and where are such changes to stop?

If there be any doubt as to the true construction of the statute in question, it would be settled by the consideration, that in adopting the California statute, we adopted its received. construction in California, which must be considered as accompanying the statute to this Territory, and forming an integral part of it. Cathcart v. Robinson, 5 Pet. 264; Bemis v. Becker, 1 Kansas, 226.

The leading case of Estate of Garraud, 35 California, 336, was decided in 1868. In the case of Estate of Utz, 43 California, 200, decided in 1872, and in Pearson v. Pearson, 46 California, 609, decided in 1873, the leading case was admitted by counsel to be controlling in California, and its authority has never been questioned in that State.

In 1876, the legislature of Utah Territory enacted a statute of wills, seven sections of which were literally copied from the California act, as it was when the Estate of Garraud was decided. See sections, 6-12 inclusive, Compiled Laws of Utah, p. 271. One of these sections, section 10, is the one invoked by appellants in this case. It is to be presumed, then, that the legislature of Utah Territory was familiar with the judi cial construction of the California statute placed thereon by the highest court of that State, and that they intended to adopt that construction when they adopted the statute.

Opinion of the Court.

Although evidence of all the circumstances which surrounded the author of a written instrument will be received for the purpose of ascertaining his intentions, yet those intentions must ultimately be determined by the language of the instrument. No proof, however conclusive in its nature, can be admitted with the view of setting up an intention inconsistent with the known meaning of the writing itself. For the duty of the court in all these cases is to ascertain, not what the parties may have really intended, as distinguished from what their words express, but simply what is the meaning of the words they have used. It is merely a duty of interpretation, and evidence of surrounding circumstances cannot change the legal effect of clear and unambiguous words. Reynolds v. Fire Ins. Co., 47 N. Y. 597, 606; Partridge v. Ins. Co., 15 Wall. 573; Maryland v. Railroad Co., 22 Wall. 105; Kurtz v. Hibner, 55 Illinois, 514; Waldron v. Waldron, 45 Michigan, 350. There is no pretence made in this case that the language of the will is not clear and unambiguous.

The uniform language of the authorities is to the effect that no intention to omit to provide for the children appears by reason of the absolute devise to the appellee. C. B. & Q. Railroad v. Wasserman, 22 Fed. Rep. 874; Pounds v. Dale, 48 Missouri, 270; Ramsdill v. Wentworth, 106 Mass. 320; Bush v. Lindsay, 44 California, 121.

Mr. Benjamin Sheeks and Mr. Joseph L. Rawlins for appellee.

MR. CHIEF JUSTICE FULLER, after stating the case as above, delivered the opinion of the court.

Accepting the finding of fact that the testator intentionally excluded his children from any share of the property disposed of by the will, respecting which, upon this record, there could be no doubt, the only question in the case is as to whether the court erred in admitting extrinsic evidence to establish that the omission to provide for the children was intentional. The solution of this question depends upon the proper construction of the statutes of Utah bearing upon the subject.