Smith v. Sheehan

| N.H. | Dec 5, 1892

Section 3 of the statute of 1789 provided "That any child or children, or their legal representatives, in case of their death, not having a legacy given him or them in the will of their father or mother, shall have a portion of the estate of the testator assigned unto to him, her, or them, as though such parent had died intestate." Laws, ed. 1815, p. 198. In Merrill v. Sanborn, 2 N.H. 499" court="None" date_filed="1822-09-15" href="https://app.midpage.ai/document/merrill-v-sanborn-8503372?utm_source=webapp" opinion_id="8503372">2 N.H. 499, decided in 1822, a testator among other descendants left seven grandchildren, the children of a deceased son. In his will he mentioned two of his grandchildren and their father. It was held that the presumption of law was that the other five grandchildren were not omitted through forgetfulness. The court said, — "It is incredible that he should have passed over five out of seven grandchildren through forgetfulness." The case came within the strict letter of the statute, but the decision went upon the ground that the omission was not unintentional.

Section 3 of the statute of 1822 provided "That if there be any child, or any lineal heir of a child in the descending line, which has no devise or legacy by the will of a deceased father or mother, and which is not named or referred to in such a manner as to show that it was not out of the mind of the testator at the time of making the will . . . every such child or heir shall inherit and have assigned to it the same portion in the estate of the deceased as it would be entitled to if such deceased person had died intestate." Laws, ed. 1830, p. 355. The provisions of Pub. Sts., c. 186, s. 10, identical with Rev. Sts., c. 156, s. 9, Gen. Sts., c. 174, s. 10, Gen. Laws, c. 193, s. 10, are as follows: "Every child born after the deceased of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and persona, as he would be if the deceased were intestate."

In 1854 a case arose where a testator in one clause of his will gave a legacy to a son, and in another a legacy to a grandson, child of another son to whom no legacy or devise was given, and who was not named or referred to in the will. It was held that the naming of one person, however closely related to another, without more, will not be deemed a reference to such other; that the naming of a grandson, and describing him as such, or a devise or legacy to him as such, will not be deemed without more, a reference to his father or mother, — thus practically overruling Merrill v. Sanborn. Gage v. Gage, 29 N.H. 533" court="None" date_filed="1854-12-15" href="https://app.midpage.ai/document/gage-v-gage-8505969?utm_source=webapp" opinion_id="8505969">29 N.H. 533. The court said (p. 543) "the true rule of law is just what is laid down in the statute: if a child or grandchild is not named or referred to in the will, and is not a devisee or legatee, he will take his share as if the estate was intestate." And (p. 542) "To be entitled to a distributive share, a child or grandchild must be neither named nor referred to, nor a legatee or devisee."

Were the two sons whose names are not mentioned in the will "referred to," and are they devisees or legatees? Both questions must be answered in the affirmative. There is no reasonable doubt that by the words "legal heirs" the testator had in mind his five children. "Child" and "heir" in common speech often mean the same person. If he had used, instead, the words "my children," or "my daughter and sons," or "my daughter and four sons," his meaning would not be open to doubt. His intention would have been as certain as if he had inserted their names in his will. His words "to my legal heirs in the same proportion as if no will had been made" show that he intended his children. Having in mind, as his heirs, his children or the descendants of deceased children, the beneficiaries intended are made as certain as if they had been mentioned by name. That the two contesting sons are two of a class of five is not important. They are none the less legatees. It is not questioned that the five children take each a considerable property under the residuary clause. Though the entire residue might possibly be consumed in the support of their mother, it may reasonably be inferred that the testator understood it would not all be needed for that purpose, and the legacies to his children would be substantial in amount.

The decisions cited and commented upon by counsel for the contestants are cases where there was a posthumous child, and therefore not specially applicable. Under the facts existing in such cases, it will generally appear that a posthumous child could not have been in the mind of the testator.

Case discharged.

BLODGETT, J., did not sit; the others concurred.