54 A. 1014 | N.H. | 1903
If it was the intention of the testatrix that no child surviving her should share in her estate, she could lawfully so provide. The law imposed no restrictions upon her power to so dispose of her estate by will. The executor inquires whether Mrs. Smith's two children are sufficiently referred to in her will to preclude them from sharing in her estate under the statute of distributions. As the testatrix had the power to exclude them from such share by the provisions of her will, if such was her intention, the inquiry is whether the case discloses evidence legally sufficient to establish such intention. The omission to make them beneficiaries is not of itself sufficient evidence of such intent. It must also appear that the omission was intentional.
"Every 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 personal, as he would be if the deceased were intestate." P. S., c. 186, s. 10. The children are not mentioned by name in the will. Neither are they devisees or legatees. But they are referred to expressly. The testatrix had distinctly in mind the possibility that she might leave surviving her a child or children, for she makes one disposition of a considerable portion of her estate in that contingency, and another in the event that no children survived her. It cannot reasonably be said that the child living at the date of the will, or the one whose birth was imminent, were "out of the mind of the testator at the time of making the will" (Laws 1822, c. 28, s. 3), or that the omission to make them the direct objects of her bounty was not intentional. Smith v. Sheehan,
Case discharged.
All concurred.