Peters v. Siders, 126 Mass. 135

126 Mass. 135 | Mass. | 1879

Colt, J.

The mother of the demandant, who died July 21, 1849, executed her will April 30 of the same year, by which she gave all the real and personal property of which she might die possessed to her husband. Before her marriage, she had exedated an antenuptial contract by which she secured the demon led premises to her sole use and benefit, with the right to dispose of the same by will. The demandant, who was her sole heir at law, and the only issue of the marriage, was born within about one month after the will was executed, and there was an entire omission to provide for him therein.

The demandant contends that, under the provisions of the Gen. Sts. e. 92, § 25, he takes the same share of his mother’s estate as he would have been entitled to if she had died intesr tote. This depends on whether the omission was intentional, and not occasioned by accident or mistake. That was the only question before the court.

The case was tried by a justice of this court, without a jury, and he found as a fact, that the omission was intentional, and not occasioned by accident or mistake. In the opinion of the court, there was evidence sufficient to warrant his finding.

The omission may be shown to be intentional, either by the terms of the will, or by extrinsic paroi evidence. Wilson v. Fosket, 6 Met. 400. There is nothing, in this will, except the fact of the omission, which indicates a purpose not to provide for her son. But the relation of the testatrix to the objects of her bounty and to the child for whom provision is omitted, as well as her intelligence, and the circumstances under which the will is made, are all proper matters for consideration. Buckley v. Grerard, 123 Mass. 8. The judge might well find that the fact that the testatrix was so soon to be delivered of her first child must have been in her mind when the will was made, and could not have been forgotten. There is no suggestion of any mistake of fact or law, or any ignorance on the part of the. testatrix, or any oversight of the scribe, as the cause of the omission. The making of the will at that time warrants a presumption that it was made in anticipation of her confinement, and with a purpose that, if the event should prove fatal, her property should go to him on whom would devolve the care and support of the child. Ramsdill v. Wentworth, 101 Mass. 125.

By the terms of the report, the entry must be

Judgment for the tenant.