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an exhibition of fireworks: Sebeck v. Plattdeusche Volkfest Verein, 64 N. J. L. 624, 81 Am. St. Rep. 512; to a street railway company which maintains a place on the line of its road for exhibitions of markmanship: Thompson v. Lowell etc. Ry. Co., 170 Mass. 577, 64 Am. St. Rep. 323; and to the proprietors of a bathing resort: Larkin v. Saltair Beach Co., 30 Utah, 86, 116 Am. St. Rep. 818.

BACHINSKI v. BACHINSKI'S ESTATE.

[152 Mich. 693, 116 N. W. 556.) WILLS—Omission of Child—Evidence.-In a proceeding by a pretermitted child to establish her share in her father's estate, evidence is inadmissible that after the will was made she entered a house of ill-fame and became estranged from her father. (p. 428.)

WILLS-Omission of Child.-Extrinsic Evidence is admissible to show that a testator omitted to provide for his child through mistake. (p. 428.)

WILLS—Omission of Child Through Mistake of Law.-A child is entitled to inherit from her father's estate if he omits to provide for her in his will through a mistake of law, as where he relies on the opinion of the scrivener that the daughter would share in his estate notwithstanding her omission from the will. (p. 428.)

WILLS-Omission of Child.-Evidence of the Financial Condition of the estate of a testator is not admissible in a proceeding by a pretermitted child to establish her share in his estate. (p. 429.)

Pierce & Kinnane, for the appellant.
Frank S. Pratt and W. A. Hayes, for the appellee.

694 GRANT, C. J. Petitioner, the daughter of John Bachinski, deceased, filed the petition in this case in the probate court of Bay county, asking that she be decreed the same share in her father's estate that she would have been entitled to had he died intestate. The petition was presented under 3 Compiled Laws, section 9286, which provides that such child shall be entitled to such a decree, if it appear that such omission was not intentional but was made by mistake or accident. Petitioner's mother died when she was between four and five years of age. Some time after her death the father became acquainted with a widow, Mrs. Frances Plath, who had two daughters. The latter part of 1890, Mr. Bachinski took the petitioner and went to live with Mrs. Plath and her daughters. Mrs. Plath had a child by Mr. Bachinski. Some ten years after the birth of the child Mrs. Plath and Bachinski were married. The will was executed July 13, 1891. It gave all his property to Mrs. Plath, and made her his executrix. After the will was admitted to probate this petition was filed. The prayer was granted, and Mrs. Bachinski appealed to the circuit court, where the case was tried by a jury, who rendered a verdict in favor of the petitioner.

To a special question, “Was the omission to provide in the will in question for Annie Bachinski intentional!” the 695 jury answered, “No”; and to the question, “Was the omission to provide in the will in question for Annie Bachinski due either to accident or mistake?” they answered “Yes."

Mrs. Bachinski seeks a reversal in this court for alleged errors upon the trial.

1. The petitioner was eleven years old when the will was made. She lived with her father about six years thereafter. Respondent sought to show, on cross-examination of the petitioner, that she, when about eighteen years of age, became an inmate of a house of prostitution. The testimony was properly rejected: People v. McLean, 71 Mich. 309, 15 Am. St. Rep. 263, 38 N. W. 917; People v. Mills, 94 Mich. 630, 54 N. W. 488; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 58 N. W. 862.

2. It is claimed that on account of this conduct an estrangement took place between the father and daughter. Even if this were so, it would have no bearing upon the condition of affairs at the time the will was made, six years before, when petitioner was a little over eleven years of age, neither would it afford any reason for his omission to provide for her. The record.contains no evidence tending to show that there was the slightest estrangement between them at the date of the will, neither could there well be in the case of child of such tender years. The only excuse offered for disinheriting his own daughter is that Mrs. Plath had loaned him some money.

3. Kinney v. Kinney, 34 Mich. 250, and Waldron v. Waldron, 45 Mich. 350, 7 N. W. 894, have no application to a case under this statute. Those cases apply to the construction of provisions of wills devising property to devisees therein named, not to a case where the testator omits his own offspring from his bounty. There is a serious conflict in the cases as to the character of the evidence required by this and similar statutes: 1 Underhill on Wills, sec. 243. A rule that the question must be determined “from the four corners of the instrument” would render the statute of little 696 value. In reason and common sense resort must be had to extrinsic evidence. The intent cannot often appear from the will itself: See note to Thomas v. Black, 8 Am. Prob. Rep. 340, 113 No. 66, 20 S. W. 657, where numerous authorities are cited; Coulam v. Doull, 133 U. S. 216, 10 Sup. Ct. Rep. 253, 33 L. ed. 596.

It appears from the testimony of the scrivener who drew the will that the testator knew that he omitted to mention his daughter, but it also appears that the scrivener told him that it would not cut off his daughter from a share in his estate. The mistake, therefore, was one of law. Is such mistake within the statute ? We held that it is not a universal, though a general, rule that equity will not relieve against a mistake of law: Renard v. Clink, 91 Mich. 1, 30 Am. St. Rep. 458, 51 N. W. 692.

It would certainly be a harsh rule to hold that where it clearly appeared that the testator omitted his own children from his will by a mistake of law and in the belief that he had not disinherited them, the omission was intentional. This question is decided under a statute practically like our own by the supreme court of Massachusetts: Ramsdill v. Wentworth, 101 Mass. 125. It was there said: “The nature of the mistake is not material. There is no distinction between mistake of fact and mistake of law in this regard. If the testator, in ignorance or mistake of law, supposed that he had provided for them by the terms used in his will, then his failure to name them, or to use apt words of devise to them, cannot, within the meaning of the statute, be regarded as an intentional omission."

In this case it is clear that the testator did not, within the meaning of the statute, purposely omit his daughter from his will. The statement made by the scrivener to him, and statements made by the testator that his property would go to his two children, were competent to show that he unintentionally omitted petitioner from his will. We held in Re Estate of Stebbin, 94 Mich. 304, 34 Am. St. Rep. 345, 54 N. W. 159, that although the testator had named his grandchild in his will but without making any provision for her, the question of whether he intentionally or unintentionally omitted 697 her from the will was a question of fact for the jury. We think there is stronger evidence in this case than in that to show the testator's intention.

4. The court did not err in refusing to permit the respondent to show the financial condition of the estate of the deceased. Whether the deceased left an estate large or small has no bearing whatever upon the issue. The amount of the estate would not afford any reason for excluding his only legitimate child from his bounty.

5. It is also urged that the court erred in refusing to admit certain letters, claimed to have been written by the petitioner but which she denied writing. Neither the letters nor

a statement of their contents are in the record. The ques-
tion of their admissibility, therefore, is not properly before
us.

Judgment affirmed.
Moore, J., concurred.

OSTRANDER, J. I agree to an affirmance of the judgment. As to the point first discussed in the opinion of Mr. Justice Grant, the record discloses that the petitioner denied on her direct examination that she had ever been an inmate of a house of ill-fame. Appellant then offered to prove the fact. I think, under the circumstances of this case, as set out in the opinion of Mr. Justice Grant, the testimony was properly excluded. Upon the subject of the condition of the estate of the deceased, which appellant offered to prove and was not permitted to prove, I concur in holding that the condition of the estate was not a part of the res gestae, which is the ground, and only ground, asserted in this court for admitting the testimony.

Blair and Montgomery, JJ., concurred.

i

When a Testator Omits to Provide for His Child, it is presumed that the omission was intentional. And some courts have thought that extrinsic evidence is not admissible to rebut the presumption and show his intention to pretermit the child; that his intention so to do must appear from the words of the will. Other courts, however, have taken a contrary view, which appears more reasonable. It has been suggested that as to children born after the death of the testator, or after the making of his will, there is some reason why the intention to omit them should appear on the face of the will the same reason as that upon which the doctrine of revocation rests, namely, the change in the testator's situation. But this reason has no force in the case of children living when the will was executed. There is no doubt that a codicil may be referred to for the purpose of ascertaining that the omission was intentional: See 1 Ross on Probate Law and Practice, 87; note to Brown v. Brown, 115 Am. St. Rep. 571.

The Effect of Omitting a Child from a Will through a mistake of law is discussed in the note to Brown v. Brown, 115 Am. St. Rep. 583.

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WEBB v. DEPEW.

(152 Mich. 698, 116 N. W. 560.) CONTRACT OF EMPLOYMENT-Action for Breach.-An action is for the breach of a contract of employment rather than for wages, where a special count in the declaration sets out the contract and its breach, and a bill of particulars is filed with an item of damages claimed for the breach. (p. 432.)

CONTRACT OF EMPLOYMENT—Damages for Breach.-In an action by an employé for a breach of his contract of employment, the damages are not limited to those that have accrued at the time of the trial. (pp. 434, 435.)

Nims, Hoyt, Erwin & Vanderwerp, for the appellant. Cross, Lovelace & Ross and Ed. E. Kane, for the appellee.

699 MOORE, J. This suit was brought in justice's court on July 3, 1907. The plaintiff filed a written declaration containing a special count alleging a contract, breach and damages, and the common counts, with bill of particulars attached. The defendant pleaded the general issue and gave notice of justification for the discharge of plaintiff and a setoff. The case was tried in justice's court before a jury, and on July 17, 1907, a judgment was rendered in favor of plaintiff for one hundred and ninety dollars. Defendant appealed the case to the circuit court, and on September 25, 1907, it came on for trial before a jury.

Counsel for plaintiff in his opening statement said that plaintiff and her daughter, Anna, were employed by defendant as domestics at defendant's summer home near Muskegon, Michigan, for a period from about June 21, 1907, to such time as defendant should leave said summer home, but to at least October 1, 1907; that after plaintiff and her daughter had worked for defendant under this contract for about ten days, they were discharged by defendant without cause; that this suit was then instituted to recover the wages plaintiff and her daughter had already earned and damages for breach of the contract on the part of defendant.

After the opening statement had been made, and before any evidence had been introduced, the trial court made a ruling that plaintiff would be limited to recover such damages only as had accrued from the date of her discharge by defendant to the date of trial in justice's court, a period of seventeen days. To this ruling plaintiff's counsel excepted. Plaintiff's counsel contended that, if the rule adopted

by the court was correct, plaintiff was still entitled to recover such damages as had accrued from the date of her dis

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