REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF UTAH. IN RE ATWOOD'S ESTATE. WILL-OMISSION OF DEVISEE-LEGAL PRESUMPTION-ORAL Evi DENCE-COMPETENCY OF WITNESS. 1. In an instance under section 2677, Comp. Laws, where a testa- 3. The devisees, under the law of 1894, amending subdivision 3, (No. 690. Decided July 18, 1896.) Appeal from the district court of the Third judicial district, Territory of Utah. Hon. S. A. Merritt, Judge. Petition by Florence Atwood, by her guardian, Amelia A. Sutton, in the matter of the estate of Millen Atwood, deceased. From an order granting the petition, executors and others appeal. Reversed. Richards & Richards, for appellants. That the intention of the testator to omit to provide for his children may be proven by parol evidence, is established by the decision of the supreme court of the United States in the case of Coulam v. Doull, 133 U. S. 216. The court there holds that: Under the statutes of Utah, when any testator shall omit to provide in his or her will for any of his or her children or for the issue of any deceased child, unless it shall appear that such omission was intentional, such child or the issue of such child shall have the same share in the estate of the testator as if he or she had died intestate, and extrinsic evidence is admissible to show that the testator's omission to provide for a child was intentional. Coulam v. Doull, 133 U. S. 216. In the case last cited the supreme court declares that inasumch as our statute came from Massachusetts the rule of construction adopted by the courts of that state must be applied to it, and that the settled law of Massachusetts is established by the cases of Wilson v. Fosket, 6 Met. 400; Converse v. Wales, 4 Allen 512; Buckley v. Gerard, 123 Mass. 8. The testimony offered by the estate was competent, including the declarations of the deceased in relation to his intention not to provide for the petitioner. This is the settled rule in Massachusetts, as declared by the supreme court of the United States, and evidenced by the following cases: Converse v. Wales, 4 Allen 512; Buckley v. Gerard, 123 Mass. 8; Coulam v. Doull, 133 U. S. 216, 4 Utah 276; Brady v. Cubitt, 1 Doug. 31; Brush v. Wilkins, 4 Johns. Ch. 506. But it is conte..ded that the statute was adopted from California and carries with it the construction placed upon it by the courts of that State. Neither the supreme court of Utah nor the supreme court of the United States concur in that view. In the Coulam case, page 231, the latter court say: # "It is contended that the statutory provision in question was copied from that of California, and that we are bound by the construction previously put upon it by the courts of the latter state. The rule ordinarily followed in construing statutes is to adopt the construc tion of the courts of the country by whose legislation the statute was originally adopted, but we are not constrained to apply that rule in this instance. The original source of the statute is to be found in the legislation of Massachusetts. The supreme court of California declined to treat the received construction in Massachusetts as accompanying the statute and forming an integral part of it upon a distinction which we do not regard as well drawn. That construction commends itself to our judgment, and we hold that the supreme court of the territory properly applied it." Brown, Henderson & King, for respondent. It is true that in the Coulam case in the supreme court of the United States, that court held under the former statute of 1876 that the courts of this territory were not bound to follow the California decision because the statute was one which came originally from Massachusetts, and that the Massachusetts decisions would govern instead. The former statute under which the Coulam case arose, was only a single section, which was like a section of both the Massachusetts and California statutes, but it was uncertain which code or which State the law of 1876 undertook to follow, consequently the supreme court of the United States say that the decisions of the California court are no more binding than the decisions of the Massachusetts court, but since that time the present statute has been borrowed from California verbatim et literatim. To verify this we refer the court to Deering's Civil Code, being the second volume of Deering's Annotated Statutes of California (not the code of Civil Procedure) commencing at sec. 1270 and continuing to and including sec. 1377, pages 239 to 257. You will there see by comparing the present statute under which this case arises, adopted in 1885, and the statute of California are alike in every particular. That the amendments to the California statute which had been adopted up to 1885 were copied right into our law, showing clearly the intent of the legislature of this territory to adopt not the Massachusetts code, but the California code, thereby bringing this within the well understood rule that when one state adopts a statute from another state, when it is determined what state they borrowed it from, they take also the received and enunciated construction of the statute along with it. Coulton v. Stafford, 48 Fed. Rep. 266. And this statute was adopted by this territory after both the Coulam and Gerard cases had been tried, and no doubt with the express intent of adopting the California construction of it. In the present statute there are many expressions and provisions that were not in the statute of 1876, which shows it to be the clear intent and policy not to permit oral declarations when a will is under consideration, and this is clearly apparent and expressly provided for. In the Stevens case, 83 Cal. 322, the court will see a review of the decisions holding with the California case in other states where they have similar statutes, but not statutes exactly like the California statute. ZANE, C. J.: It appears from the evidence in this record that the late Millen Atwood, of Salt Lake county, made his last will on the 30th day of September, 1890, in which he devised all his real estate, and bequeathed all his personal property remaining after the payment of his just debts. and his funeral expenses, to his wife, Relief C. Atwood, and to his three children, Millen M. Atwood, Abbie Angenette Sermon, and Rosalie Esther Kelch; and that he died on the 7th day of December, of the same year, possessed of real and personal property; and that his widow, Relief, and his children named, are still living. It also appears that the will was duly probated, and that Florence Atwood, by her guardian, filed her petition in the office of the clerk of the probate court of said county on the 30th day of March, 1892, in which she alleged, with other facts, that she was of the age of 15 years; that she was a daughter and heir at law of the testator; that he omitted to provide for her in his will; and that it did not appear that such omission was intentional. Upon final distribution of the estate, she prayed that the same portion thereof might be awarded to her that she would have succeeded to if the testator had died intestate. The executors, devisees, and legatees named in the wil filed an answer to the petition, denying all its material allegations. This is an appeal from a decree granting the prayer of the above petition. The principal question presented upon this appeal for our consideration and decision arises upon the ruling of the lower court excluding declarations of the testator made before, about the time of, and after, he executed |