152 Mich. 693 | Mich. | 1908
{after stating the.facts).
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.
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 á 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 Stebbins, 94 Mich. 304, 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
Judgment affirmed..
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 gestee, which is the ground, and only ground, asserted in this court for admitting thé testimony.