delivered tbe opinion of tbe court.
Mаrgaret Pounds is tbe daughter of Oliver Brock, deceased, and claims that, as to her, be died intestate, from tbe fact that she was not mentioned in bis will. She аnd her husband therefore bring ejectment to recover certain real estate of which said Brock died seized, and which was purchased by defеndant of bis devisee. Tbe language of tbe will is as follows:
*272 “ After paying my funeral еxpenses and expenses of my sickness, I wish one hundred and forty dollars paid to my son William, it being borrowed money; also I wish one hundred dollars paid to my son John, it being borrowed money. After all my just debts are paid, I give and bequeath to my wife Jane Brock all my property of all kinds, real, personal and mixed, to have and to keep the same for her sole benefit, not to be controlled by anybody. In short, I give her the title in fee simple to everything I may bе seized of.”
The statute now, as when this will was made, provides that “ the ancеstor shall be deemed to have died intestate as to such child or childrеn not named or provided for in the will.” (Gen. Stat. 1865, ch. 131, § 1; Wagn. Stat. 1365.) It has frequently been сonsidered by this court, and in the language of Judge Richardson in Hockensmith v. Slusher,
In construing the will under consideration, the only question to be considered is whether there is anything in the will that rebuts the presumption that Mrs. Pounds was forgotten, which рresumption arises from the fact that she was “ not named or provided for in the will.” It is clear that the two sons, William and John, were not forgotten, for they wеre named, though not provided for. But I find nothing in the will to warrant us in saying affirmatively that Mrs. P. wаs in the mind of the testator. ' He had nine children, and defendant urges that if is unreasonable to suppose that he forgot the seven while naming the two. I cеrtainly would conjecture that all were in his mind, and that he meant to disinherit them. But it is а mere guess. The will must show upon its face that he remembered them ; and though thеy be not directly named, there must be provisions or language that point directly to
The construction of a similar statute in Merrill v. Sаnborn, 2 N. H. 499, completely nullifies it. A devise was made to two of seven grandchildrеn, and the court says that because of this devise, though no mention was made of the others, they could not have been forgotten. The family were not forgotten; but if the fact that no allusion, directly or indirectly, was made to thе other members of the family, is to be treated as presumptive evidence that they were not forgotten, I cannot see how they can be said to have been remembered.
The judgment of the Circuit Court should be affirmed.