Tulkoff, Myer S.

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University of Kentucky

Kentucky Law JournalVolume 41 | Issue 3 Article 101953Failure to Mention Afterborn Children in WillMade While Wife is Pregnant as Showing Intent toDisinheritMyer S. TulkoffUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Estates and Trusts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationTulkoff, Myer S. (1953) "Failure to Mention Afterborn Children in Will Made While Wife is Pregnant as Showing Intent toDisinherit," Kentucky Law Journal: Vol. 41 : Iss. 3 , Article 10.Available at: https://uknowledge.uky.edu/klj/vol41/iss3/10NotEs AN CoMNTsthe principles of law heretofore thought applicable to these caseswill no longer be controlling. It was there said that:"... a tax does not cease to be valid merely because it regulates,discourages, or even definitely deters the activities taxed ... Theprinciple applies even though the revenue obtained is obviouslynegligible .... or the revenue purpose of the tax may be secondary... .Nor does a tax statute necessarily fall because it touches onactivities which Congress might not otherwise regulate."This language would seem to indicate that future tax statutes willbe held constitutional regardless of their regulatory effect, even thoughthe revenue purpose is merely secondary, provided the statute islabelled a tax. Although it is true that the actual decision of thecase was much narrower than the opinion indicates, it should at leastshow that the present trend is to extend the use of the taxing poweras a regulatory device, and that the Supreme Court is not yet ready todraw the line which must undoubtedly exist if the taxing power ofcongress under the Federal Constitution is not to be used to destroy thefederal system.*Joam K. LEOPARDFAILURE TO MENTION AFTERBORN CHILDREN IN WILLMADE WHILE WIFE IS PREGNANT AS SHOWINGINTENT TO DISINHERITMost civilized nations give a person the privilege of disposing ofhis property by will. In Anglo-American countries this freedom oftestation is permitted with fewer restrictions than in civil law coun-tries.' For example, in the continental countries, regardless of thewishes of the testator, the children, spouse, and parents take forcedshares of which they usually cannot be deprived.2 But in England andAmerica, the survivors are not so protected and may generally be dis-inherited by the decedent.3There are statutes in the United States, however, designed toprevent under some circumstances, unintentional disinheritance ofchildren not mentioned in a will. In six states statutes declare thatwills made during marriage are revoked by the birth of issue there--'Id. at 44.Since this note was written the Bookie Tax has been upheld by the SupremeCourt of the United States in United States v. Karhfiger, 78 S. Ct. 510 (March 9,1953).5 ATmNSON, WiLs 95 (1987).2 Id. at 8."Ibid.KENTUCKY LAW JOURNALafter.4 In most jurisdictions the statutes do not provide for revocation,"but instead provide that a child born after the making of a will maytake his intestate share of the estate regardless of the will.6 The policysupporting these statutes is the prevention of unintentional or inad-vertent disinheritance or as has been stated, "to guard and provideagainst such testamentary thoughtlessness and lack of vision as preventa testator from contemplating the possibility of afterborn children andtaking such possibility into account in framing a scheme for the testa-mentary disposition of his property."7The typical situation giving rise to the operation of the so-calledpretermitted child statutes arises where a testator executes a valid willand subsequent to its execution his wife gives birth to issue which areunprovided for in the will. Under a majority of statutes the afterborn child inherits that portion of the testators estate, both real andpersonal, that he would have taken had his parent died intestate.8This share is generally provided by means of contribution amongthose who inherit under the will.Usually these statutes clearly set out the situations in which after-born children are not to be protected. In all American jurisdictionsthe testator may avoid operation of the statutes by expressly providingin his will for any afterborn children. In over half the states a settle-ment outside the will is sufficient to prevent the afterborn child fromtaking his intestate share. Also, in most states, an express statementin the will of an intent to disinherit the afterborn child will be equallyeffective. 9In Kentucky, as in other states, the effect of the statute in favor ofafterborn children' 9 can be avoided by providing for them in the will,"or by an express statement that they shall take nothing,'2 as well as bya settlement outside the will during the testator's lifetime.'3If a testator fails to provide for an afterborn child in his will andat the same time does not expressly disinherit it, an ambiguity arises'2 CoNN. GENY. STAT. c. 341, sec. 6956 (1949); GA. CODE see. 113-408 (Park,1933); 3 IND. STAT. ANN. sec. 7-303 (Bums, 1933); KANs. GCEr. STAT. ANN. sec.50-610 (1949); LA. Civ. CODE ANN. art. 1705 (Dart, 1945); 1 N. J. REV. STAT.see. 3:2-15 (1937).'ATm nsoN, WmLs 95 (1937).'Robert E. Mathews, Pretermitted Heirs: An Analysis of Statutes, 29 CoL. L.REv. 748 et seq. (1929).'McLean v. McLean, 207 N. Y. 365, 371, 101 N.E. 178, 179 (1913).'Mathews, supra, note 6, at 749.Old. at 72.'Ky. Rxv. STAT. sec. 394.380 (1948).Porter v. Porter's Ex'r., 120 Ky. 302, 86 S.W. 546 (1905).Logan v. Bean's Admr., 120 Ky. 712, 87 S.W. 1110 (1905).See provisions of Ky. REx. STAT. sec. 394.380 (1948).NoTEs AND Co ¢n rNrswith respect to the testators intention. By his failure to provide forthe child it can be said that the testator intends to disinherit him. Onthe other hand, it can just as well be argued that failure to expresslydisinherit the child shows an intention not to do so. This ambiguityhas been resolved by the above mentioned statutes in favor of theafterborn child. The presumption under these statutes is that failureto mention afterborn children is by oversight or inadvertence becauseof the failure of the parent in not providing for a contingent situation.14This presumption can be overcome if it can be shown that the failureto mention the child was not pure oversight, but was the result of anactual intent for such after born children not to inherit. The questionthen arises as to how the intent of the testator to disinherit the childcan be shown, other than by express exclusion in the will, so as toavoid operation of the statute. The answer lies in the use of extrinsicevidence to show the testators intent.' 5Extrinsic evidence that may show the testator's intent to disinheritis the pregnancy of the testator's wife at the time of the execution ofthe will coupled with a failure to make a provision for that child. It issubmitted that in this situation an intent to disinherit the child is mani-fested even though the testator does not expressly so sate in his will.As an illustration, testator executes his will on October 1, in which heleaves all his property to his wife, remainder at her -death to hisbrother. On November 1, of that year, testator's wife gave birth to achild. By implication, that child is disinherited. This is true eventhough the testator did not expressly disinherit the child in the will.The validity of this argument is not hampered by the policy behindthe pretermitted child statutes already mentioned which is to protectafterborn children from unintentional or inadevertent disinheritance.It is easy to understand that in executing a will a testator may notforesee a child being born two years hence; but can it be said that heomits to provide for a child because of lack of vision or by inadvert-ence, when he knows his wife is presently pregnant?Christian v. Carter, 193 N.C. 537, 137 S.E. 596 (1927).'The decisions are not in accord as to the admissibility of extrinsic evidenceto show whether or not the omission of a testator to provide for his child was in-tentional, thereby avoiding the application of the pretermission statute. This lackof accord is due in part . . . to the difference in terminology of the variousstatutes."It would appear that under the maiority of the pretermission statutesextrinsic evidence is admissible to show whether the testator intended to omitprovisions for his child or children." 170 A.L.R. 1379 (1947).For a more extended discussion of the admissibility of extrinsic evidence toshow a testator's intention as to omission or disinheritance of children, see theannotation in 94 A.L.R. 209 et seq. (1935).KENTUcKY LAW JoURNALIn the Illinois case of Hedlund v. Miner,16 the court evidentlyfailed to look to the underlying policy behind the pretermitted childstatutes when it did not find an intention to disinherit in such a situa-tion. There, the testator, who had no children, but was shortly ex-pecting the birth of a child, executed a will in which he devised allhis estate to his wife. One month later, a daughter was born to him.After the testator died the child was held entitled to an interest inhis estate. The appellant, in an attempt to avoid the statute,17 con-tended that the testator gave all of his property to his wife, well know-ing of the pregnancy when he executed his will and that this mani-fested "his intention to disinherit his child about to be born and ex-clude it from receiving any portion of his estate."' However, the courtdid not approve of this contention.In other cases it has been held that the failure of the testator tomention the child with which his wife is pregnant is not indicative ofan intent to disinherit that child and thus an application of the pre-termitted child statute is not avoided. The theory followed in many ofthese cases is that the clear and unambiguous terms of the statute arenot affected by the existence of the condition of pregnancy.20There are cases, however, where the single fact of pregnancycoupled with omission to mention the child has been held to be suf-ficient to show an intention to disinherit. Thus, in an early Massa-chusetts case,21 the testatrix gave birth to a child one month aftershe executed her will in which she devised all her property to herhusband. The child sought his portion of the mother's estate underthe pretermitted child statute then in force. 22 The court held that thefailure to mention the child was an intentional disinheritance. Findingthis intention from the single fact of pregnancy when the will wasexecuted, the court said:"There is nothing in this will, except the fact of the omission, whichindicates a purpose not to provide for her son. But the relation ofthe testatrix to the objects of her bounty and to the child for whomprovision is omitted, as well as her intelligence, and the circumstancesunder which the will is made, are all proper matters for considera-tion.... The judge might well find that the fact that the testatrixwas so soon to be delivered of her first child must have been in hermind when the will was made, and could not have been forgotten.- 395 Ill. 217, 69 N.E. 2d 862 (1946)." ILL. REV. STAT. c. 3, sec. 199 (1945).Supra note 16 at -, N.E. at 867."McCrum v. McCrum, 141 App. Div. 83, 125 N.Y.S. 717 (1910).McCrum v. McCrum, 141 App. Div. 83, 125 N.Y. S. 717 (1910); see alsoChicago, B. & Q.R. Co. v. Wasserman, 22 F. 872 (1885).'Peters v. Siders, 126 Mass. 135 (1879).'MAss. GEN. STAT, c. 92, sec. 25 (1932).NoTms AND CommsrsThere is no suggestion of any mistake of fact or law, or any ignoranceon the part of the testatrix, or any oversight of the scribe, as thecause of the omission. 'In a similar situation the Tennessee court 24 held that the child wasdisinherited by "unavoidable inference" or by "necessary implication",by construing the will in the light of "existing facts and surroundingcircumstances," namely, the fact that the testatrix was pregnant whenshe executed her will.2 5There is another line of cases in accord with the cases just dis-cussed, however, they contain the additional factor that when thetestator executed his will, he not only failed to provide for a childwith which the wife was then pregnant, but also omitted mentioninghis children then living. The fact that the living child is not providedfor strengthens the case for finding "from all the facts and circum-stances" when the will is executed, an intention to disinherit the afterborn child.In the Kentucky case of Leonard v. Enochs 6 the testator willed hisestate to his wife. At the time he executed his will he had one childliving and his wife was pregnant with another child. This daughter,born two months after testator's death, later claimed her intestateshare of her father's estate under the pretermitted child statute inKentucky.27 The testator in his will had never expressly stated thatthe child should not take and yet the court refused to apply the statutefor her benefit. The court found an intention to exclude the claimantby virtue of the fact that the testator did not bequeath or devise anyproperty to his then living child. The court stated:"It makes no difference in what form such intention may be ex-pressed in the will; it may be by direct words of exclusion or it maybe plainly seen from the whole will that the testator intended toexclude the afterborn child, and if thus seen it is 'expressly excludedby the will'. Does such intention appear from the will? We think itdoes .... Now, as said, the living child not having been expresslySupra note 21 at 138.'King v. King, 166 Tenn. 115, 59 S.W. 2d 510 (1933).S.W. at 512. Also see Reaves v. Hager, 101 Tenn. 714, 50 S.W. 760 (1899)and Lindsley v. Lindsley, 98 R.I. 85, 197 AtI. 98 (1938), where the testatorexecuted his will two months and thirteen days before the expected birth of hisfirst child. It made no provision for children who might be born afterwards, butleft all of his property to his wife. The court stated that there is a presumptionthat a testator's omission of his children from his will is accidental and not in-tentional but that such a presumption could be rebutted. Here the presumptionwas held rebutted by the evidence that the testaor expressed his intention, inconversation with his wife, to leave all his property to her by will, when he"knew and talked with her about the expected birth of her first child." AUt. at 99.U 92 Ky. 186, 17 S.W. 437 (1891).GEw. STAT. see. 25, c. 113 at the time this case was decided. It is now Ky.lEv. STAT. sec. 394.380 (1948).KENTucKY LAW joUoINALexcluded by name, but clearly, expressly excluded by the content ofthe will... does it not follow that the afterborn child was likewiseintentionally, expressly excluded from the provisions of the will? Wethink it was."'Thus, the Kentucky Court felt that it found an intent to disinheritexpressly stated in the will and therefore did not need to resort toextrinsic evidence to determine the testator's intention.An Illinois case29 puts more emphasis on the fact that the wife waspregnant when testator executed his will. In addition to this pro-spective child he had two living children, but gave all his property tohis wife, and made no provision or reference concerning children,present or afterborn. This will was construed as disinheriting a sonborn two months after the will's execution. The court stated that itwas not reasonable to believe that the testator intended to excludehis two infant children, who were living with him when the will wasexecuted, and not at the same time exclude another child to be bornwithin two months thereafter. 30A few courts have taken a contrary view. In a New York case,3 'the testator had two children living at the time of the execution of hiswill and his wife was pregnant with another child. He left all of hisproperty to his wife, failing to mention the children. The court heldthat the afterborn children were entitled to the benefit of the statutefor pretermitted issue.32 Counsel opposing this holding tried to arguethat it was permissible to spell out of the will itself, coupled with thefact that the testator did not make a new will upon birth of the after-born children, an intention to leave nothing to afterborn children, aswell as to the children in being at the time he executed his will. Thecourt declared that this argument ".... goes down before the statutesand the decision under it."33 However, there was a strong dissentingopinion.In conclusion, it is arguable that when a testator executes his willand fails to provide for a child with which his wife is known to bepregnant that the more correct view would be to hold the child im-pliedly disinherited. After all, the policy behind the pretermitted childstatute is to prevent unintentional disinheritance caused by the testa-"Supra note 26 at 188, S.W. at 438.Hawhe v. Chicago & Western Indiana Ry. Co., 165 11M. 561, 46 N.E. 240(1897).' N.E. at 242. See also Fleming v. Phoenix Trust Co., 162 Tenn. 511, 39S.W. 2d 277 (1931); Froehlich v. Minwegan, 804 M11. 462, 136 N.E. 669 (1922).'Udell v. Stearns, 125 App. Div. 196, 109 N.Y.S. 407 (1908)., 2 REv. STAT. (1st ed.) p. 65, pt. 2, c, tit. 1, sec. 49 as amended by c. 22,p. 40, Laws of 1869., Supra note 31 at 408.NOTES AND Coxnv=Nrstor's failing to foresee birth of future children.34 It is not likely that hefails to foresee this possibility when his wife is presently pregnant,but rather, it would be well to consider human nature and realizethat most people, while a wife is pregnant, do plan for the child'sfuture. Besides, it may be urged, as in the case of a will executedwithout provision for living children, that the testator is in effectproviding for the children by leaving his estate to those whom heknows will provide for the children. It has already been seen thatthe pretermitted child statute is avoided if provision for the child ismade in the will.35 It also must be remembered that, in the absence ofstatute,3 6 testator's living children unprovided for in the will are notprotected; it is arguable that a child about to be born should fall in thesame class.However, it can be said that it is difficult in this situation to predictwith any degree of certainty whether or not a particular court willimply an intent to disinherit a child so as to avoid application of thepretermission statute of a state if a man executes his will while hiswife is pregnant and fails to provide for the child. In order to avoidan unintended or unjust result the draftsman should take into con-sideration the possibility of children being born after execution of thewill and should either expressly provide for the contingency of after-born children or should expressly state that such children will not takeunder the will. Only in this way can any certainty be injected into thealready complex field of determining a testators intent.MinE S. TuroFFSupra note 7 at 371, N.E. at 179. See also supra note 6 at 750.Supra note 11.rATxwNsoN, WnLs 94.

Failure to Mention Afterborn Children in Will Made While Wife is Pregnant as Showing Intent to Disinherit

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Failure to Mention Afterborn Children in Will Made While Wife is Pregnant as Showing Intent to Disinherit

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