Sacramento daily record-union., 1889-06-08
ESTATE OF A. ]. STEVENS.
AN IMPORTANT DECISION RENDERED
By JUDGE VAN FLEET.
Mrs. May Hubbard to Have share OF
Her Fathers Estate-Her ChiId's
Adoption Declared Void

Master Mechanic of lbe Southern Pacific
Company, the fact was disclosed that hi.
will made no provision FOR MS son Fred.
and daughter Nay, the former holding s
position on the railroad, aud the latter be-
ing the divorced wife of W. ". Hubbard
and member Of the family household Al
the time OF her fathers death. Mrs
Stevens was made the ececuuix of The
estate, without bonds. In his Will Nr.
Stevens made provision f,r his grandson,
the child oT mis- daughter Tue Civil Code
provides that, though a child may be
omitted IN will by the parent, i Is still
entitled 10 is share in the estate, ualass tie
Court should b. satisfied that the omission
was intentional aad for pdrpose.
IN this case IL seems the widow assumed
that he 0m5ssiOl was Intentional. and Ms.
Hubbard brought suit for division Of the
estate, ulGer the provision oi the cote rg-
terIel 10, aEd for an accounting bv her
mother. The latter opposed he petition, and
sought prove heinteu.ipn uI her husband
TO purposely omit his daughter by he .acs
that he Gld specifically provide i3r hrr
child. L was further shown thai the latter
had been adopted by It's grandparents m
der decree -Ge1 ny die late Judge CLARK.
OF he then County Court The effect IF
Itlls adoption, II held to BE- legal would
have Deen-eyen though Mrs Hubbard
should be awarded q share IL the estate
to reiuce hrr interest therein IroGl one
fourth 70 one sixth.
The case was tried before Jrdee Van
Flsel some weeks ago anG submitted. Yes
jerddy he rendered his decision therein
(Which IS given IN fun below, holding that
The law under which the cuiid o! Mrs.
Hubbard was adopted by - GRANDPARENTS
IS VOID, and mat l. az veltiOnrr Ms. Hub
baro) IS go receive her legal share OF The
es'a'c, which is ane-iguIth, rhe widow be-
ing entitled 10 one undivided cs!f 1ua.r
the Law. The decision reads:
In The superior Cours Of the County OF s,.cr3-
mehtp' STATE OF California, Department Two
ceased
Andrew j. stevens died IN said comfy Of Sac.
iaEIAtp on the il,h day of February. 1855
beIiE q resident thereof az his death ana haY-
ing an estate therein. lie left surviving bsra. as
next OF kin, mis- widow and two chliGre ia
daughter May 5. HlbbaE5, the petitioner
neTeIu, and FRED :. Stevens J. son. He lefc q
viii tologFaPhiC}, whereby he devised all his
property 20 his WldOS, yLia " Stevens a4d
mace heE sole eNecltrN, He did not ugue
eiher OF s1ld ch..Grtn IN this VIII nor make
any provision Ioc them therein, More than four
months having elapsed since letters issued on
ms estate, aay = 1uLOard, the daughter. now
il-lAAto El--.#sAti4 To- tDiN Court partial
Distribution Of sad estate 20 her, claiming as 2
preteImi .el child. after alleging idTisiic.
tIoaaI facts, tEe petitioner SetS forth jha, he
les Gter ON. tied 10 provide for the petitioner in
his VIII, and that j dges not appear TIA; such
omission was intentional: thu. She is one OF The
heiTS-aL-la| OF deceased ana entitled 10 q dis
uioqt!Ve share IN A.s es.ate Of oae-toU-th OF the
"-lAte -itIcei, ana sIc aAES tlat S2.u share be
now distributed ID her upon her giving Sucn
bond as n2y be necessary 10 ccure the payment
OF Aer pT9q9lt.oQ9at9 -ha Of the debt and eX-
.
The eEecutrix, Lydia NJ Stevens. fled IN
answer 10 sEid p tlt-On which IN legal eject
raises tho 02erliols TO the granting Of peti-
Ilo-er epPntai!on, the first going 10 tha entire
exclusion OF p q iouer from aLy share iu The
estate, ana the Hc.oni, Il sustained, vttac.iEG
m8-et2l Ciu!4ur.gI iC 'le { striBut.ve sla-c t1
Wh-eh petitioner would be entitled.
J.. he frs. objection arises uc0n The denial
IN me answer chat the omission 70 provide .uc
prtHiJler vas ullnLcnLo"Gl ana The avr-meut
ina St.a te-t3t9E pUlpo-el- aHl intentionally
omtted 20 provide or petitioner IN has WI Z. and
Jhat his said intention appears from the face OF
t!le "iI itse.I. llis feature a.. thc answer and
the contention OF The respondent hereunder
rests upon the -0lOWIGg language rf the .yf!l.
wherein the Jesato-, after making devise OF
&A his property ID his wife says: " ! request.
however -hai she -ila wife ~ ! set aside and
Ca1se 20 ore invested i'll s0n1e GOOD and sale il-
terest paying securities 1909 t1r the benefit of
my Ete-depL, Hil..s NJ a. stevens, beth TiiuC--
pal &-d Interest @ccumGlatiuus % Ne l,.id to
h'In }sh 20 be ~hal, have arri~ed ut -Ag ase OF
twenty enc years, hUJ IN his matter al- wife
may use me- own Judgment u being sdmirrd
IN iasi con. tcHon thut said William A. stevens
is tine sau o: tae uej.uoue- May s. Hubbard, by
lormer husband, a. Billings
II is .oujeplei By respondent .hat while pet
the ~ l. that nevertheless it IS manifest from
the language o. the wiz, Gbove quoted that the
ON s>l3u TO name or p-oF.Ee for her was iu.en
LoLt' ihat t1e m@m & Of uer son by Jh -esga-
10 shows 1y necessary iup, cation or inference
thGJ the mother was il his mind - The time
her.
s.caon 1907 OF the Civil Cole. upon which pc
.ltluucI bases her right - snare N cae estate
p5aFljes tE4t When any te-tat0r 0ui.s ID
pr2ylle ln hls VIII for anyul children. or FOR
the -'s4e OF amy deceased chile JsUis T. appears
taG. saa OMISSION U" dtltiGrr5 such child or
the issue OF such child must lave tar same snare
in the estate o' the tesfatoT rs Il he had died in
Jesttte-' Italics volunteered. y has been Ge.-
Lermnad insI g-d- r LIS statute the fgcJ rhg-
the omission was inten -io2al must appear from
tie lam aAae oi the VIII itself: that e&tIiuslc
eylas nee rs Lo' aa1o'sSablC 10 show ac intention
OF tie -estatO- Estate OF GaTraud, s. Cal. SE2D
IN determining. therefore, tne intention Of
the teslatoT We are Iim.led 70 an examination
and construction of the language Of the will
The doctrine Oi vicariuus or interential men
uon, or IN o.her words, that a reference by the
lSS,a'or IN ms VIII 90 some person intimately
connected With She omitted heir ia sufficient
eeideuce thar the omission OF the testalOr was
Intentional has received some recognition
(Nlder vs.. Gnss. u Mass G57; Hcckeusni;h IS
o4uShcr, 70 Mo- ea7. Guitar rs Gordon, Il No.
i0s: Merrill vs.. cBuAorn. ? n. H., a9s
vs.. Toss ABOVE ftir1. Iiere the tes.atOr men
TONED in his VIII the husband Of mis- deceased
daughter. and gave legacy 70 one OF said
daughters children, and il was held to instiry
an inference that other children of such
daughter were Intentionally omitted by the tes-
tatCr. Bat ,he reasoning Of these cases is to my
mind not such as 70 commend itself 70 ones
iaHoEable Coaslu-fat on, and 4 am satisfied,
after csTetul examination, that the doctrine
they announce Is not sustained by the better or
greater weight of authority. In Il We cousid-
Af m nsN 70 cas- rfaTr
that of Merrill vs. Sanboru, supra which IS cited
by respondent as one Of the leading eases in
s-Ivots % .ne cSy,ttlG CoiL hosd ioT mai case
ana the case OF Wider vs.. fosS, are strongly
disc pproyed OF and il is distinctly held that
the naming OF q grandson, and describing him
rs such is not sufficient reference 20 his father
or mother 70 satisfy g statute Of like impar.
with Section 1867, supra. and thg; the locriue
is squareiy declared that under such statute
" he naming Qf one person, t2rSrer closely TsctsG
C'hr." ItaiiCs volunteered.) Aftsr thorough
review Of the authorities on this subject in a
note 20 the case of Wilson Us. FOSEe;t 70 Met
100, 80 Am. Dec. 1861 the a.le editor OF Ameri-
can Decisions concludes; Indeed. it NAV
well be doubted whether in any case the omiS-
sion OF one heir, whether child gTaadchild
should be deemed intentional merely because
some one else, closely related to him is named
10 the will see also / Redfeld on Wills. 4Si;
Jasman on Wills, +O9) But the doctrine con
tended iOr by respondent has been distinctly re-
pudiated in thI. state In Bush Us. Lindsey
ga Cal l2l 1t is held that if the testator in
MS will ucfAsc MS property 10 ms grandson,
the son OF his deceased son, and the ;eSator has
children living il does not show, as matter OF
construction OF the viii, that his children were
brought 10 his recollection and that his omission
70 provide for them in his VIII was intentional
quote from the syllabus, which is fully Sus-
tanned by the text. So in the estate OF Utz I45
Cal, VVl, where the ieStator expressed the in
tention in his will 10 leave his property to his
children and named and provided Tor
his living children, but failed TO mention
or proyide ioT two grandchildren, the chill
dren OF a deceased daughter j. was he'd
that the language of the viii did not warrant
an inference of the existence OF deliberate
purpose actually in the mind of the gestator. TO
wholly exclude the children OF his deceased
daughter from a share of his estate"
The doctrine contended for is one OF danger
Gus uncertainty in its application; the question
IS one Of intent or purpose in the teststor which
must be gathered from the language OF the win
The testator omitS an heir, but he mentions