86 Mass. 512 | Mass. | 1862
Under the provision in Rev. Sts. c. 62, § 21, reenacted in Gen. Sts. c. 92, § 25, which provides that where a testator omits to make provision in his will for any of his children or for the issue of any deceased child, they shall take the same share of his estate to which they would have been entitled if he had died intestate, unless they shall have been provided for in his lifetime, or unless it appears that such omission was intentional and not occasioned by accident or mistake, it has been held by this court that paroi evidence is admissible to show that the testator made such omission by design. Wilson v. Fosket, 6 Met. 400. Bancroft v. Ives, 3 Gray, 367. Such being the rule, it seems to us to be quite clear that the evidence offered at the trial of this case, to which objection is taken, was competent and relevant. The issue was, whether the omission of the appellants in the will of the testator was intentional and not occasioned by mistake or oversight. We know of no mode of proving this intent of a deceased person more direct and satisfactory, in the absence of written evidence, than his acts and declarations on the subject while living. Especially is this so, when they are made in connection with acts relating to the final testamentary disposition of his estate. The previous wills made by the testator are in the nature of declarations having a direct bearing on the issue. They tend directly
Verdict affirmed.
Chapman, J. did not sit in these cases.