owned an estate of heavily incumbered and unproductive lands, which required business ability and expedition in handling the same. The testator had a wife in whose business judgment and ability he had unlimited confidence, and he no doubt believed that her maternal devotion to her children could be relied upon to provide for them out of what might be saved of the estate better than the testator could in the embarrassed and entangled condition of affairs that surrounded the property at the time the will was executed. Surrounded by these circumstances, the testator made his will, employing for that purpose 16 words: "I give, devise and bequeath all my property, wherever situated, to my wife, Jane Creighton Peet." What did the testator mean by giving all his property to his wife? Did he mean that if afterwards a child should be born such child should have one-fourth of the property and the wife three-fourths, and the other child, Creighton, none? In our opinion he meant that his wife should have all of the property, to the exclusion of his children then born or to be thereafter born, and we are much influenced in reaching this conclusion by the circumstances surrounding the testator at the time the will was made, parol evidence of which, under the authority of the Hawhe Case, is clearly admissible in this state.

We freely concede that other courts in other jurisdictions have reached an opposite conclusion with respect to the admissibility of parol evidence under statutes bearing more or less similarity to ours. Perhaps one of the strongest presentations of the opposing view is an opinion of the United States Circuit Court for the District of Nebraska, rendered by Mr. Justice Brewer, in the case of Chicago, Burlington & Quincy Railroad Co. v. Wasserman, 22 Fed. 872. In that case the learned judge felt himself compelled to decide against what he frankly confesses was the real intention of the testator, because, under his view, parol evidence could not aid the difficulty. A quotation from that case is here made merely for the purpose of showing that the rule there applied defeated the intention of the testator: "In this case the primary question I am reluctantly compelled to decide in favor of the complainant, Wasserman. I say reluctantly, for when a man, on the eve of death, having a child five years of age and living with a wife to be delivered of a second child within twenty days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either the born or unborn child, but trusted to his wife, their mother, to do justice to each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact, independent of the statute, I have no doubt that Mr. Wasserman had no feeling either against the born. or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But

the legal difficulty is this: The statute says it must be apparent from the will that the testator intended that the unborn child should not be specially provided for. How can any intention as to this child be gathered from the will alone? It simply gives everything to the wife, is silent as to children. If I could look beyond the will, my conclusion would be instant and unhesitating." Whatever weight this authority might have if this were a case of first impression with this court, it can have none now in the face of our own decision in the Hawhe Case, where the same authority was pressed upon our attention, and this court expressly refused to follow it. This court, on page 569 of 165 Ill., page 242 of 46 N. E., of the Hawhe Case, speaking of the Wasserman Case, said: "While the facts in that case are quite similar to the facts in this case, and the opinion delivered by the eminent jurist seems to sustain appellant's view of the law, we are not inclined to follow it." In the Wasserman Case are collected a number of decisions of other courts upon which appellant relies; but, if the Wasserman Case be rejected as not good law in this jurisdiction, it would seem scarcely necessary to examine in detail the cases upon which it

rests.

The appellant relies with some apparent confidence upon Lurie v. Radnitzer, 166 Ill. 609, 46 N. E. 1116, 57 Am. St. Rep. 157, as laying down a different rule from that announced in the Hawhe Case. We do not regard these cases as in conflict. Indeed, the Hawhe Case is cited twice in the Radnitzer Case and relied on as an authority in sup*port of the conclusion reached in the latter case. The cases are clearly distinguishable, and there is nothing said in the later case that in any way impairs the authority of the former.

There is nothing in the New York statute introduced in evidence by appellant, which, considered as a fact in connection with the other surrounding circumstances, will overcome the proofs properly before the court.

It results from what has been said that appellant's second proposition cannot be sustained. The decree of the court below is right, and the same is affirmed.

Decree affirmed.*

CARTWRIGHT, FARMER, and DUNN, JJ. (dissenting). The provision of the statute is that a child born to any testator after the making of a will shall not be disinherited unless it shall appear by such will that it was the intention of the testator to disinherit such child. It is not necessary that the testator should expressly declare such inten

4 On the admissibility of parol evidence to show whether a living child was intentionally omitted from the will, see 8 Am. & Eng. Ann. Cas. 637, note. That a child is not so omitted where he is not provided for because the scrivener persuades the testator that the omission will not cut off the child's share of his estate is held in Bachinski v. Bachinski, 152 Mich. 693, 116 N. W. 556, 125 Am. St. Rep. 427 (1908). See, also, note 68, aute, p. 224.

tion, but it is sufficient if the will fairly manifests it. In the absence of latent ambiguity, such as the cases referred to in the foregoing opinion, in one of which the testator had two sons named John, and in the other made a devise to "the four boys" when he had seven sons, the intention is to be gathered from the will itself. Hayward v. Loper, 147 Ill. 41, 35 N. E. 225. That rule was stated in Hawhe v. Chicago & Western Indiana Railroad Co., 165 Ill. 561, 46 N. E. 240, as follows: "The law is well settled that extrinsic evidence cannot be resorted to to show the intention of the testator where there is no latent ambiguity in the will, but the intention is to be determined from the language used by the testator in the will itself." Evidence as to the circumstances surrounding a testator at the time the will is made is proper, as an aid to an intelligent construction of the language used, by enabling the court to stand in the testator's place and to read the will in the light of those surrounding circumstances; but, when that is done, it must appear by the will that it was the intention of the testator to disinherit an after-born child, if the will is to have that effect.

The only facts apparent in this case which have any bearing upon the question to be determined are that the testator had one child three years old, for whom he had made no provision in the will, and that he had a wife, to whom he made a simple devise of all his property. By the will itself the testator manifested an intention to give all his property to his wife and to give nothing to the living child; but in our opinion, such facts are entirely insufficient to justify the conclusion reached in said opinion that it appears by the will that it was the intention of the testator to disinherit the child born 12 years after the execution of the will. We do not regard the decision in the case of Hawhe v. Chicago & Western Indiana Railroad Co., supra, either as conclusive of the question involved in this case, or as fairly tending to sustain the conclusion reached here. In that case the will was made on the afternoon preceding the death of the testator. By it he gave all his estate to his wife. He had two children when the will was executed, and a posthumous child was born about two months after the execution of the will and his death. He made no allusion whatever to his living children or to the one which was soon to be born, and in devising all his property to his wife he used language which the court regarded as very significant of an intention that no other person than his wife should, in any event, have any portion of his estate. It was said that the language used meant more than a simple devise; that language could not have been used which would more clearly express an intention that the wife, and she alone, should take and hold the testator's estate to the exclusion of all others; and that, if the testator had inserted a clause in his will that no other person should have any portion of his estate, such a provision would have excluded the two children then born and the one thereafter to be born, and yet such a provision would not have made the intention of the COST.WILLS-27

testator more definite than the language used. In this case the gift to the wife was an ordinary and simple devise, and one of the controlling reasons for the decision in the Hawhe Case is entirely wanting.

The only other fact regarded as significant in determining the intention of the testator was that he had two children living and knew that another child was to be born within the next two months, and he made no mention of either. The living children were excluded from taking any portion of the estate, and it was not regarded as reasonable to believe that the testator intended to exclude them and not at the same time exclude the other child soon to be born. It is beyond question that the testator there had in mind both his living children and the one that would soon be born, and must have entertained an intention respecting the share which the child, when born, would take in his estate. It was therefore a fair inference that he had the same intention as to all. In this case the child was born 11⁄2 years after the execution of the will, and as it had no existence when the will was made the testator could have had no intention respecting it, different from that which almost every testator might have in executing a will. Eliminating from the Hawhe Case the two facts above referred to, and which formed the basis of the decision, and there would be but little left. We cannot conceive that the decision would have been the same in the absence of such facts.

In the later case of Lurie v. Radnitzer, 166 Ill. 609, 46 N. E. 1116, 57 Am. St. Rep. 157, the testator had a wife and three children, and a posthumous child was born about three months after his death. In his will he devised his entire estate to his wife and the three living children, giving two-fifths to the wife and one-fifth to each of the three children. In the draft of the will he made a devise to his child as yet unborn, and in another place made reference to that child, but before the execution of the will he erased both the devise and the reference. It was held that, although the testator gave his entire estate to the wife and living children and erased the devise to the unborn child, he did not thereby manifest an intention to disinherit such child. The decision was based on the ground that the will contained no negative expressions whatever concerning the unborn child, and the court said: "The mere fact that the testator knew that such child was likely to be born to him, and that he had such knowledge when he executed his will, would not be sufficient, under the statute, to deprive such child of his share in his father's estate." The statement made in this case that the testator, no doubt, believed that the maternal devotion of his wife to her children could be relied upon to provide for them, is not in harmony with what was there said concerning the intention of the testator, as follows: "Had it been his intention, as contended by appellants, that the provision in the will giving his wife two-fifths of his estate should inure also to the benefit of this child if born alive, we would expect to find something in the will to indicate such intention."

We are of the opinion that it does not appear by the will in question in this case that it was the intention of the testator to disinherit the child born 12 years afterward, which had no existence at the time the will was made.

SECTION 3.-ADOPTED CHILDREN

WAGNER v. VARNER.

(Supreme Court of Iowa, 1879. 50 Iowa, 532.)

Mahala Boyer, daughter of John Bumer, died in 1864, leaving two children, who are the wards of the plaintiff, surviving her. In the same year-but whether before or after the death of said Mahala does not appear-John Bumer adopted said children, as provided by law, and in 1876 died without having made a will. Said Bumer left several other children surviving him. The plaintiff claims that his wards are entitled to inherit a share of the estate of said Bumer, as his children by adoption, and also the share their mother would have. been entitled to had she outlived him. The circuit court held that said children could only inherit by reason of their adoption, and rejected the other claim. The plaintiff appeals.

SEEVERS, J. It is provided by statute that the "consent of both parents, if living, and not divorced or separated, and if divorced or separated, or if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child; or if either parent is dead then the consent of the survivor; or if both parents be dead, or the child shall have been and remains abandoned by them," the consent of certain named officers is necessary before the child can be legally adopted. Code, § 2308.

When thus adopted "the rights, duties and relations between the parent and child by adoption shall, thereafter, in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth." Code, § 2310.

In the absence of a will the estate descends in equal shares to the children of the deceased. Code, § 2453. If one of the children of the deceased "be dead, the heirs of such child shall inherit his share * in the same manner as though such child had outlived his parents." Code, § 2454.

Under section 2310 the wards of the plaintiff inherit as the children by adoption of John Bumer, and if Mahala Boyer had outlived him. she would have inherited as the natural child of said Bumer, under section 2453; and section 2454 expressly provides that her children shall inherit in the same manner as though she had outlived her father.