118 Me. 67 | Me. | 1919
Robert C. Foster, namesake of his father, distinguished from him as junior, and whose only prospective heir he was, is perter-mitted from his father’s will; a document executed when the child was less than five years old, and which became operative, before he had attained the age of eight years, by its probate in Cumberland County on May 4, 1916.
The question in this case is, whether exclusion of the'boy from provision of that will was intentional, and not occasioned by mistake, on the part of the testator; a subject of investigation regarding which the will itself is silent.
At the outset, and without scrutiny, the disposition of the estate may seem to be unreasonable and unnatural, even to savor of unjustness; but, under the rule of law applicable, the maker of the will was not bound to have good or any reason for what he did, or if he had reason, to state it. Wiüh the wisdom or propriety of his act the law has nothing to do. If adequate and convincing proof, extrinsical the will, shall show, that when that instrument was made, the son being present to his mind, the parent purposely ignored him, and otherwise made bestowal of his bounty, then we must hold that the testator’s will be done. Whittemore v. Russell, 80 Maine, 297; Merrill v. Hayden, 86 Maine, 133.
In its language the statute is broad enough to embrace all competent evidence tending to prove that such omission was intentional
What then of Robert C. .Foster, the elder? Of his child and his relation to him, of his property, of its testamentary disposition, and of his intention, as he may have declared it, that concerning? Bred to the law, he came to the bar, and entered upon the practice of the profession at Portland, in partnership with his own father, but he did not especially actively concern himself with the business of the firm. In 1906 he married. The child first born of the marriage died in early infancy. In 1910 his wife left him, taking little Robert, not then two and one-half years old, and going to her girlhood home in Illinois. Efforts to bring about reconciliation between husband and wife, in which both the testator and his parents participated, the one by letters manifesting his better traits and characteristics, and importuning that she return to live with him, the others by personal interviews with the wife, after a journey afar for that purpose, were unavailing. A month after the dissociation, the Probate Court in Cumberland County granted the mother custody and care of the child, to continue throughout his minority. Three or four months later on, while Mr. Foster was absent in Europe, his wife, who previously had returned to Portland, removed her property and effects from what had been the family domicile. Within eight months from that time this court decreed the wife matrimonial divorcement. Promptly thereafter, for the consideration of five thousand dollars to her paid, she released to her former husband all her interest in his real and personal estate, and exempted him from all liability to provide for, or to contribute to, the support and education of their son, while he had been, and
From the day that his wife left him until that of his death, Robert Foster never had opportunity to speak to his child. The case ungrud-ingly concedes that, while the family lived together, he was an affectionate father, proud of his child, and ambitious for his future. When the boy was taken elsewhere to live, the father’s interest in him waned. For Christmas, twenty days from the day on which Robert’s mother took her child away from the paternal home, he sent him five dollars, accompanied by a note couched in words of a parent’s love. On the third anniversary of the child’s birth, in the next July he sent him another present of money. Beyond those gifts, after the separation, he gave him nothing. He made no provision for him or his welfare, excepting the gross payment made to the mother at the time she assumed responsibility for the child’s support. Not altogether without foundation in fact, though not entirely based on truth, Mr. Foster was told that his son was known and called bythe name of the step-father. At once his attitude- underwent decided change. He abandoned effort to see the boy. He gave away the toy bank in which for him it had been his habit to deposit dimes, assigning as a reason that he never expected again to see the child. In the summer of the year of 1912, and once more in the summer of the very next year, the boy visited at the home of a maternal aunt, the site of whose house was a lot of land adjoining, and back of that on which was located the residence of Mr. Foster, in Portland. His attention called to the fact that the lad was at play in the nearby yard, Mr. Foster came from out one room into another, and looked through a window at him. What passed through his mind, and was reflected in his eyes, as he contemplated his son, was fleeting; but as he gazed he soliloquized, and she who, in other days, had been nurse to that child both in Maine and in Illinois, then, pausing in her housework, during the father’s monologue, and herself looking at the boy in the yard, heard the parent say: “They have treated me meanly, and I am throu'gh with them.” At another time he spoke to his friend and physician, Dr. Gray, already familiar with the estrangement, and told him of his formed intention, his considered and positive purpose, that his property should not go at his death to his former wife or to his child.
Robert C. Foster’s property was not the fruit .of his own industry. The house that he owned and occupied, and the personal property consisting, additionally to his household effects, of a few bonds and other evidences of indebtment, of which at the time of the divorcement he was possessed, were gifts to him from his parents. Two years later on, when his father died, the bulk of the father’s property passed by will to Robert. He then abandoned the practice of the law; 'sold his dwelling-place, and went to live in an apartment house. He began the study of medicine. A policy of insurance on his life was cancelled for the reason, as he stated, that, as his mother, the beneficiary named in his will, already had ample estate of her own, there was no occasion to carry the contract, and the money requisite for premiums thereon might the more conveniently be used by him in defrayment of medical school expenses. At Christmas time in 1915, before his death in March next following, while at home through a recess of the medical school in which he was enrolled as a student, he talked with his mother respecting the disposal of his property in case she outlived him. He
It is conceived by the court to be its duty to set aside and disregard the verdict of the jury. It is neither necessary nor desirable again to send the case to a jury. The mandate to the court below will be that the omission of the appellant’s ward from devise in the will of the ward’s father, Robert C. Foster, was intentional, and not occasioned by mistake, on the part of the testator. The decree of the Probate Court denying the petition for the payment to appellant’s -ward of the same share of the estate of the testator, as he would have taken if no will had been made, is affirmed.
The case is remanded to the Supreme Court of Probate for decree accordingly.