249 Mass. 522 | Mass. | 1924
The testator by his will dated June 4, 1906, which was duly admitted to probate August 14,1906, devised “ my homestead house and land situated in Chatham . . . to my wife, Priscilla K. Smith and her heirs.” At his death the devisee with three daughters and two sons, children of the testator by his first marriage, survived. Victoria A. Howard, one of the daughters, brought on September 6, 1922, a petition in the court of probate for partition of the premises in which the widow, the sons and the other two daughters are made respondents. A decree for partition having been ordered, the case is here on the widow’s appeal.
The claim of the petitioner is, that she is entitled as an heir at law to two fifteenths under R. L. c. 135, § 19, then
The judge of probate has found as a fact, that the failure of the testator to provide for his children was not intentional, but was occasioned by accident or mistake. The uncontradicted paroi testimony showed that, prior to the date of the will, the testator had a conversation with his step-daughter Mrs. Panno in which he said, “ ‘ They (meaning Victoria A. Howard) tried to get me to make a will in their favor.’ I said, ‘ Did you? ’ and he said, ‘ No.’ 'I don’t intend to give them anything. That place belongs to your mother.’ ” The widow testified, “ that she had to go out nursing to help support ” the testator, “ and that Mrs. Panno helped them with money and otherwise.” The testator might have created a life estate for his wife with remainder to his children. But the testator read the will before signing. The devise itself is specific, “ I give and devise my homestead house and land situated in Chatham ... to my wife, Priscilla K. Smith and her heirs,” which apparently was all the property he had. The construction of the will contended for by the petitioner leads to the assumption that the testator intended to devise the homestead to his wife and children to hold as tenants in common, but unintentionally forgot the children and gave her the fee. In the words of Mr. Justice Morton speaking for the court in Buckley v. Gerard, 123 Mass. 8, 12, “ To assume that . . . [the testator] 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.” The purpose and intention of the testator must
The judge’s finding is open to review on appeal. Covell v. Chadwick, 153 Mass. 263. Emery v. Emery, 218 Mass. 227, 228. And for reasons sufficiently stated we are satisfied that the petitioner failed to establish the material averments of her petition, that she holds as tenant in common an undivided part of the “ homestead house and land.” Hurley v. O’Sullivan, 137 Mass. 86. Goff v. Britton, 182 Mass. 293, 295, 296.
The decree must be reversed, and a decree is to be entered dismissing the petition.
Ordered accordingly.