Wilder v. Thayer

97 Mass. 439 | Mass. | 1867

Foster, J.

The petitioner, a grandchild of the testator, claims under the provisions of the Rev. Sts. c. 62, § 21, (Gen. Sts. c. 92, § 25,) on the ground that the will has omitted to provide for her, the issue of a deceased daughter who died after the execution of the will but in the lifetime of the testator. The petitioner was living when her grandfather’s will was made. The question is, whether “it appears that such omission was intentional and not occasioned by accident or mistake.”

If there had been no will, the real estate would have descended in equal shares to the children and “ to the issue of any deceased child by right of representation.” Rev. Sts. c. 61, § 1. (Gen. Sts. c. 91, § 1.) It is only as her mother’s representative that the petitioner can claim title; and the provision made for the mother, upon her death in the testator’s lifetime, would, by the Rev. Sts. c. 62, § 24, (Gen. Sts. c. 92, § 28,) have enured to the benefit of this daughter, except for its peculiar character, a life annuity which terminated on the mother’s death. If, then, the mother of this petitioner had received a legacy of only nominal amount, there would have been no room for the present claim, but this grandchild would have succeeded to that provision. If the mother had survived the testator, neither she nor her descendants would have taken anything except the annuity. It is plain that at the date of the execution of the will no case existed for the application of the rule contended for. It is only in consequence of the subsequent death of the petitioner’s mother that any question arises. Under the circumstances, we all think it clear that the intention of the testator was to make no other provision for the branch of his descendants to which this grandchild belongs, than that of a life annuity to her mother. The utmost strength of the petitioner’s claim is that the testator neglected or forgot to alter his will after her mother’s death But, as she was living when it was made, this would not be the case contemplated by the statute.

All having been done by the will for Mrs. Harriet N. Wilder which the testator intended to do for the benefit of her or her descendants, the petitioner has no title as heir at law, and there must be Judgment on the verdict for the defendants.