120 Ky. 302 | Ky. Ct. App. | 1905
Opinion of the Court by
reversing.
T. B. Porter died testate at his residence in Hopkins county, Ky., on the 18th day of June, 1899, leaving a wife, Elizabeth Porter, and seven infant children, • surviving him. His will was written on the 24th day of January, 1887, and at that time he had only three children, Murris Porter, the appellant, Bradford Lawrence, and Willie Morgan Porter. After his death the will was admitted to probate. His estate consisted of his home place, containing 297 acres, and a tract called the “Hall Place,” containing 40 acres. . His personal estate at the time of his
“Third — I also give and bequeath to my said wife, Elizabeth Porter, one-third of my personal estate that may remain for distribution, after the payment of my debts and the costs of administration. Said estate to be held in trust for her use by my executor and the interest and profits thereof to be paid to her annually. At the death of my wife, the personal estate devised to her which may remain shall go to my sons Bradford Lawrence and Willie Morgan Porter, and such children, if any, as I may have by her giving to each child an equal share.
“Fourth — All of my personal estate not bequeathed to my wife shall go to my sons Bradford Lawrence and Willie Morgan Porter and such other children, if any, as I may have by said wife, giving to each an equal share.”
In the fifth clause of the will the testator gave to his son Murris Porter, who was a child by a former wife, his tract of 40 acres, known as the “Hall Place,” with the condition .that if he died before he reached the age of 21 years it should go to the other children' of the testator, giving to each an equal share.
H. F. Porter, a brother of the testator, was nominated in the will as its executor. Within the time allowed by law, the widow, Elizabeth Porter, re
The conclusion we have reached as to the children born after the date of the will being pretermitted within the terms of the statute renders it unnecessary that we should examine the various exceptions filed to the commissioners’ report. It will be observed that, by the language of the statute, only such after-born children as are “not provided for by any settlement, and neither provided for nor expressly excluded by the will,” are pretermitted. The word “pretermitted,” according to Webster, means “to pass by,” “to omit,” “to disregard.” The statute was enacted not to control the right of the testator to dispose of his estate among the beneficiaries of his bounty according to a plan of his own, but to guard against the hardship frequently arising from oversight and carelessness in those who, having written their wills, afterward have children born unto them and fail to make provision for them. But if there be in the language of the testament a clear indication that there has been no oversight or omission, and that the testator has chosen to distribute his estate unequally among his children, or even to exclude some of them entirely, it is not the policy of the law to interfere with his right to distribute his estate according to his pleasure. Ah examination of
For the reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent herewith.