101 Mass. 125 | Mass. | 1869
In the will of their father, provision is omitted to be made for the petitioners, and they are entitled, under the statute, to such share of his real estate as they would have taken if he had died intestate, unless it appears that the omission was intentional, and not occasioned by accident or mistake. Gen. Sts. c. 92, § 25. The omission may be shown to be intentional, and not the result of accident or mistake, both by the terms of the will and by extrinsic paroi evidence. Wilson v. Fosket, 6 Met. 400. There is nothing in the will, except the fact of the omission, which indicates a purpose not to provide for them.
The respondents rely upon evidence tending to show that, in making his will, the testator understood that he had provided tor his children by giving to his wife only a life estate in his property, and that after her death it would be equally divided between them. The will in terms gives all his estate to his wife, who was the mother of these petitioners, to be held by her and her heirs forever, to her and their sole and separate use. It
The operation of the statute is peculiar, but there is no violation under it of the rules of evidence. The only issue is, whether provision was omitted in the will by design, and with-v ut mistake or accident. Parol evidence is admitted, although the result may change or modify the disposition of the testator’s estate. The will is used to show that there is no legacy under it; and however the issue may be established, there is no conflict with its terms. Bancroft v. Ives, 3 Gray, 367. Converse v. Wales, 4 Allen, 512. Lorings v. Marsh, 6 Wallace, 337.
The successive statutes upon this subject are substantial reen*
Exceptions sustained.