322 Mass. 30 | Mass. | 1947
This is a petition in equity, brought by the executor of the will of Annie D. White, to determine whether the omission to make provision in the will of the testatrix for the respondent Thomas Henry White, her son by adoption, was “intentional and not occasioned by accident or mistake.” G. L. (Ter. Ed.) c. 191, § 20. The case comes before us on the appeal of Patrick H. White as a respondent in his individual capacity from the decree entered by the judge that “the failure of said testatrix to make provision in her will for said Thomas Henry White was unintentional and was occasioned by accident or mistake.”
The evidence is reported, and the judge made a report of the material facts found by him at the request of the appellant. G. L. (Ter. Ed.) c. 215, § 11.
The evidence discloses the following facts, which the judge found for the most part but some of which we find ourselves not in contradiction of but supplementing those found by him. The petitioner (and, wherever he is so referred to, we are referring to him as the husband of the testatrix) and the testatrix were husband and wife. They had been married for over fifty years. In 1911 they took into their home a child, Thomas Henry Kelley (the respond
By virtue of the adoption of Thomas by the petitioner and the testatrix, all legal consequences of the natural relation of child and parents thereafter existed between them, and he became entitled to take the same share of the property which they could dispose of by will as he would have taken if born to them in lawful wedlock. G. L. (Ter. Ed.) c. 210, §§ 6, 7. MacMaster v. Fobes, 226 Mass. 396, 399. General Laws (Ter. Ed.) c. 191, § 20, provides as follows: “If a testator omits to provide in his will for any of his children, whether born before ór after the testator’s death, or for the issue of a deceased child, whether born before or after the testator’s death, they shall take the same share of his estate which they would have taken if he had died intestate, unless they have been provided for by the testator in his life time or unless it appears that the omission was intentional and not occasioned by accident or mistake.”
The question whether the omission of the testatrix to
The accidents or mistakes that are contemplated by the statute are not to be construed as meaning such mistakes or accidents as would or might have caused the testatrix to entertain a different intention from that which omission from the will would show, but are mistakes or accidents in the expression of the will or in its transcription. Hurley v. O’Sullivan, 137 Mass. 86, 87-89. In the case just cited the court said, “To set aside a will which actually expresses that which the testator intended, because he acted under erroneous views of the law as applicable to his children and his or their property, is to give a significance to the word ‘mistake’ which the history of the legislation, the language used therein, and the reason of the matter, alike show was
In the present case the evidence requires a finding that the testatrix did not have any intention of making provision for Thomas in her will that was frustrated by any error of expression or transcription in her will, and a finding that, within the meaning of the statute, the omission to provide for Thomas was intentional and not occasioned by accident or mistake. Draper v. Draper, 267 Mass. 528, 532-533, and cases cited.
It follows from what we have said that the decree entered by the judge must be reversed, and that instead a decree must be entered after rescript adjudging that the omission of the testatrix to make provision in her will for the respondent Thomas Henry White was intentional and was not occasioned by accident or mistake.
So ordered.
See St. 1947, e. 365, § 3.