Conflicting Evidence. In considering authority of supreme court to construe wills and trusts before certifying court resolves all questions of fact in dispute, the court distinguishes and limits Horton v. Horton, 46 R.I. 492, later approved in Kershaw v. Kershaw, 84 R.I. 429, and holds, in effect, that where the evidence on an essential issue is in conflict, the rule of certification laid down in the cited cases and applicable where the relevant evidence was undisputed and unimpeached does not apply. G.L. 1956, ยง 9-24-28, as amended; P.L. 1965, c. 55, ยง 41.
None of this being contradicted, impeached or inherently improbable we are therefore bound, as the trier of fact in such cases, to accept this evidence in its entirety. See Industrial National Bank v. Isele, 101 R.I. 734, 227 A.2d 203; also Michaud v. Michaud, 98 R.I. 95, 200 A.2d 6; and Horton v. Horton, 46 R.I. 492, 129 A. 499. Thus, we deem conclusive the otherwise persuasive statements of Dr. Pfeiffer.
It is important to note, however, that both parties have treated the instant cause as a bill calling for the construction of a will, and it is settled in this state that when a bill is brought for the construction of a will under the provisions of ยง 9-24-28, nothing in the statute requires that the superior court make findings of fact. Kershaw v. Kershaw, 84 R.I. 429, 432; Horton v. Horton, 46 R.I. 492, 495. That there is sound reason for this rule is indicated by the statement of this court in Restino v. Tafuri, 43 R.I. 156, 159.
When a bill is brought for the construction of or for instructions relative to a will or trust deed the provisions of G.L. 1938, chap. 545, ยง 7, do not require the superior court to make findings of fact. Horton v. Horton, 46 R.I. 492, 495. Section 7 provides that the superior court shall certify to this court for determination all bills in equity for construction of or for instructions relative to any will or trust deed "whenever and as soon as any such cause is ready for hearing for final decree, and may, after hearing any other cause for final decree, certify such cause for the determination of the supreme court."
However where a bill in equity, which also contains allegations and prayers for other relief, has been certified for construction of a will, this court consistently has treated the bill as if it were brought solely for the construction of the will and has disregarded such other allegations and prayers as surplusage. Town of Bristol v. Nolan, 72 R.I. 460, 465; Ortman v. Streeter, 67 R.I. 325, 326; Horton v. Horton, 46 R.I. 492, 495. See also Smith v. Powers, 83 R.I. 415, 117 A.2d 844.
[, 2] This court has held that a testator's intention to omit any of his children or the issue of any deceased child may be shown from the will itself or by parol extrinsic evidence. See Horton v. Horton, 46 R.I. 492; Rhode Island Hospital Trust Co. v. Hail, 47 R.I. 64; McPhillips v. McPhillips, 70 R.I. 179. In Horton v. Horton, supra, at page 496, it was stated: "The statute operates when and only when the will can not be supported by evidence showing that the testator meant what he said when he disposed of his property by will and omitted to provide for one of his children or the issue of a deceased child."
However, where a bill in equity was brought primarily for such a construction of a will or trust deed, this court ignored as surplusage the allegations or prayers for other relief and treated the cause as certified under ยง 7; and we shall treat this proceeding accordingly. Horton v. Horton, 46 R.I. 492; Ortman v. Streeter, 67 R.I. 325. Five questions appear in the certification as made upon the motion of the complainant, and these will be quoted as they are discussed.
Where there is sufficient supporting evidence of this kind to prove the intentional omission of her children by a testatrix, the provisions of G.L. 1923, chap. 298, sec. 22 do not operate. Horton v. Horton, 46 R.I. 492. Our construction of this will, therefore, is that Mary B. McPhillips intended to omit her children therefrom and that, by the second clause of her will she transmitted to her husband, named therein, all her title and interest in and to all the residue of her property.
Therefore, we will treat the prayers for removal of cloud on title as surplusage and consider the cause as one solely for the construction of a will. Horton v. Horton, 46 R.I. 492. See Gould v. Trenberth, 59 R.I. 220.
The prayer that her interest in the corpus of the trust be determined and established is necessarily included therein and is merely subordinate thereto and colorable. In connection with this proposition only, see Nicklin v. Downey, 101 W. Va. 320, 132 S.E. 735; Horton v. Horton, 46 R.I. 492, 129 A. 499. [5] Other relief demanded included the appointment of a trustee, an accounting by the executors and certain other findings and instructions involving administrative procedure. It is sufficient to say that such matters may so far as proper and necessary, be determined in the probate proceedings now pending in said court. A court of equity will not interfere with the plain and ordinary proceedings in the settlement of estates pending in the probate court. First Methodist Church v. Hull, 225 Iowa 306, 280 N.W. 531. The trust property is in the possession of the legal representatives of the estate and it does not appear that appellant's rights are in danger of being prejudiced.