The statute creates a presumption which serves as a prima facie case for the child. It does no more. The intention of the testator must control. What was his intention? The purpose of the statutory presumption is to protect the child against oversight or inadvertent omission.
The presumption, having the effect to make a prima facie case, is rebuttable. Hedderich v. Hedderich, 18 N.D. 488,123 N.W. 276; *Page 196 Schultz v. Schultz, 19 N.D. 688, 125 N.W. 555. It may be rebutted by parol testimony. Whitby v. Motz, 125 Minn. 40,145 N.W. 623, 51 L.R.A. (N.S.) 645.
The statute creates a rule of evidence. It is destroyed by direct and positive proof that the omission was intentional. It seems to me that the uncontradicted and unimpeached evidence shows conclusively that the omission was intentional. The testimony of the witnesses should control as a matter of law within the well established rule which requires the acceptance of unimpeached testimony.
After deceased told attorney Ostensoe what he wished put in the will, this talk occurred: Ostensoe: "Why, Ed, you have left out your little girl Margaret." Bakke: "Yes, I know. Mr. Skauge has agreed to take her back and see that she has a good home." Ostensoe: "Ed, don't you know that in case you should die and not leave any will that your daughter Margaret would be entitled to all of the property as a matter of law?" Bakke: "Yes, I understand that, but this is the way I want it."
Bakke had asked Mr. Skauge to take Margaret back to the home from which she had come, and Skauge reminded him that the child was his and that his relatives should care for her, but he added: "If need be don't worry over Margaret, I am here, and it is my duty to look after girls of that kind." Skauge so testified. The testator told Ostensoe in substance that Mr. Skauge had agreed to take Margaret back (she had come from a home for which Mr. Skauge in some way acted) and see that she would have a good home.
There is nothing in the record to discredit either of these witnesses aside from the fact that one was one of the attorneys in the case — an incident of no importance, since mere interest of a witness as a party does not permit the jury to discredit him. On the contrary, it should be presumed that one who is on our roll as a lawyer will faithfully and honestly perform his professional duty.
I am unable to find any evidence in the record to take the question to the jury or to support the finding. *Page 197