123 Mass. 8 | Mass. | 1877
The justice, before whom this case was heard, without a jury, has found as a fact that the omission by Juliette A. Buckley to provide for her children in her will was intentional and not occasioned by accident or mistake. This is decisive against the petitioners, if such finding was justified by the evidence.
The paroi testimony admitted, tending to show the intelligence of the testatrix and her relations to her husband and her children, at the date of the will and to the time of her death, was clearly competent. Converse v. Wales, 4 Allen, 512. Rams-dill v. Wentworth, 101 Mass. 125.
The will of Mrs. Buckley makes no mention of her children and gives her whole estate to her husband. But it cannot fairly
It appeared in evidence that she was a woman of great intelligence and capacity, that she was very fond of her children, who were never separated from her, that she had great affection for and the most perfect confidence in her husband, and that he was very devoted to her. Considering the affection and respect she felt for her husband, and the tender age of her children, it was not unnatural or unreasonable that she should leave her estate to him, trusting to his known affection to support and educate their children and to make suitable provision for them by his will.
To assume that she unintentionally omitted to provide for the child living when the will was made, is to assume that she forgot that she had a child, which is incredible. Taking all the evidence in this case, without referring to it more minutely, it seems to us clear that it justified the presiding justice in finding that the omission to provide for the petitioners, in the will of their mother, was intentional and not by accident or mistake.
This view makes it unnecessary to consider the other questions presented in the report. Judgment for the respondents.
