Lead Opinion
delivered the opinion of the court.
Thе plaintiff, Emma T., was the daughter of Wm. A. Harris, deceased, who made a will, giving all his property to his widow, the defendant, making no provision, as is alleged, for his said daughter. She and her husband present their petition, setting
After the pаssage of the practice act of 1849, and so long as it was in force, it was uniformly held that the motion for a new triаl, specifying the grounds for the same, was dispensed with; but in The State v. Marshall,
The petition shows the relationship of the said Emma T. to the deceased, describes the property, charges that he made a will and “bequeathed and devised to the said Fanny .Harris, wife of sаid William A., all his property, real, personal and mixed, absolutely," etc.; also, that he “ omitted in said will to mention the nаme of his said daughter Emma T., and failed to make any provisions for her; and that, by reason of said omission and failure, the said William A. died intestate as regards his said daughter."
The petition brought the case within the statute, and, if true, entitled the plаintiffs to relief. The answer admits the relationr ship and marriage of plaintiffs, the execution and probate of thе will, and avers “that by said will the decedent bequeathed and devised all his property, real, personal and mixed, аbsolutely to the defendant, Fanny Harris, appointing her sole executrix of his
The allegation of the petition, that the testator did not name his daughter, and that he failed to make any provision for her, is not denied by the answer. The legal consequencе of not being named is denied, and it would seem from the answer that some allusion was made by the testator to minor children, from which the pleader infers that he excluded his other children, and that they were intentionally- excluded, and not accidentally omitted. The material facts are not denied and are thus admitted, and no new facts are so set out as to show the court that the defendant’s inferences were sound. And, indeed, enough appears to show that they were unsound; for the statute, and its universal construction, make the fact that children are not either exprеssly named, or so alluded to as to show affirmatively that they were in the testator’s mind, conclusive evidence that they were forgotten, and that the testator unintentionally left them unprovided for. “ The statute creates a presumption that they (children) were forgotten unless named or provided for.” (Pounds v. Dale,
That portion of the answer which shows the dеbts of the testator liquidated by defendant cannot go to the plaintiffs’ right, but only to the amount to which they are entitled. The defendant should be credited with whatever she has expended on account of the •estate, and must recеive what she is entitled to as widow before the plaintiffs’ share can be ascertained.
the judgment will be reversed and the cause remanded.
Concurrence Opinion
Tbe remedy given to pretermitfced heirs is a summary proceeding under the statute of wills, upon petition and due notice given to the legatees, devisees, heirs, executors and administrators. (See Wagn. Stat. 1870, § 47.) This restriction on the powers of testators was unknown to the common law, and it was eminently proper that the statute creating the restriction should also give the remedy. It is not an action in the legal acceptation of that term. (See Levins v. Stevens,
Whether there be anything left for distribution after payment of debts, and whethei' the pretermitted parties had already been sufficiently advanced, are questions not рroperly before this court, and must depend for solution upon the evidence that may be adduced on the trial of the case.
On the grounds here stated, I concur in the result.