ON PETITION FOR REHEARING.
Fisk, J.A petition for a rehearing has been filed, in which it is strenuously contended that the issue as to the paternity of appellant is inseparably connected with that of whether the testator intentionally omitted to provide for him in the will, and that a finding against him as to the latter issue can be given no effect without also a finding in 'his favor as to the former. A very plausible and ingenious argument is presented in support of such contention, but, after mature deliberation, we are unable to concur in the views of counsel. It is no doubt true, as contended, that the omission referred to in Rev. Codes 1905, section 5119, relates to the omission to provide for any children or for the issue of any deceased child of the testator, but does it necessarily follow on this account that an intentional omission of the petitioner cannot be shown as a fact without first showing that he is a child of the testator ? How is the latter fact at all material if, in the light of the facts, it .appears that the testator, regardless of whether or not petitioner was his son, entertained no purpose or intent of recognizing him in his will ? We think it must be said from the evidence that, whether interpleader was or was not the son of the deceased, it -was the testator’s intention to exclude him from any participation in the proceeds of his estate. In answering question 11 of the special verdict, the jury must have had in mind the contention of petitioner that lie was a son of the testator as well as the denial of such fact by the testator. The primary question involved in the case was: Who was entitled under the will to receive the estate of deceased? The relationship of the petitioner to the testator was but a minor or incidental question.
The most that can be claimed by appellant is that, if the jury had found in 'his favor upon the question of paternity, such finding, together with the fact of his omission from the will, would have raised a mere prima facie presumption, contrary to the intent which the language of the will expresses, that the omission was not intentional. We are unable to see how appellant’s rights are prejudicially affected by the fact that such prima facie presumption was not established by reason of the jury’s failure to answer question 28 of the special verdict, when, from the testimony it clearly appeairs that *499such presumption, if established, would have been fully and completely overcome.
(123 N. W. 276.)The oontenton of counsel in their petition for rehearing, in effect, that the evidence which would operate to overthrow the presumption, if established, can be given no weight until such presumption is first established, as a fact, does not appeal to us as sound. The foregoing opinion of the court in effect assumes, for the purposes of the point under consideration, that petitioner had established the requisite facts to create in his favor such prima facie presumption, to wit, that he is the lawful issue of deceased, and was omitted from the will. That such facts merely raise a prima facie presumption that he was not intentionally omitted, and that such presumption is rebuttable by evidence, extrinsic the will, is well established. In re Atwood’s Estate, 14 Utah, 1, 45 Pac. 1036, 60 Am. St. Rep. 878; Coulam v. Doull, 133 U. S. 216, 10 Sup. Ct. 263, 33 L. Ed. 596, and cases cited. These authorities deal with a statute identically the same as our own.
Appellant’s counsel urge that, in any event, the judgment in this case should be modified and the record so amended as to eliminate the findings of the trial court covering the omissions of the jury to answer the twenty-first, twenty-third, twenty-eighth and twenty-ninth questions in the special verdict; their contention being that there was a substantial conflict in the testimony as to the matters embraced in such questions, and hence the trial court clearly invaded the province of the jury in making such findings. In this counsel are clearly correct, and the judgment of the trial court will be modified accordingly.
Rehearing denied.