Converse v. Wales

86 Mass. 512

Opinion

Bigelow, C. J.

*

Under the provision in Rev. Sts. c. 62, § 21, reenacted in Gen. Sts. c. 92, § 25, which provides that where a testator omits to make provision in his will for any of his children or for the issue of any deceased child, they shall take the same share of his estate to which they would have been entitled if he had died intestate, unless they shall have been provided for in his lifetime, or unless it appears that such omission was intentional and not occasioned by accident or mistake, it has been held by this court that paroi evidence is admissible to show that the testator made such omission by design. Wilson v. Fosket, 6 Met. 400. Bancroft v. Ives, 3 Gray, 367. Such being the rule, it seems to us to be quite clear that the evidence offered at the trial of this case, to which objection is taken, was competent and relevant. The issue was, whether the omission of the appellants in the will of the testator was intentional and not occasioned by mistake or oversight. We know of no mode of proving this intent of a deceased person more direct and satisfactory, in the absence of written evidence, than his acts and declarations on the subject while living. Especially is this so, when they are made in connection with acts relating to the final testamentary disposition of his estate. The previous wills made by the testator are in the nature of declarations having a direct bearing on the issue. They tend directly to show, if the same omission existed in them as is found in the will offered for probate, that it was not occasioned by forgetfulness, mistake or any accidental circumstances, but was the result of a well settled and deliberately formed purpose. In this view, the testimony of Hyde was competent. Although the declarations testified to by him were made at a comparatively remote period from the time of making the last will of the testator, they tended to prove that he then had a fixed design in regard to the disposition of his estate, by which the appellants would be excluded from any share therein. The instructions given to the jury were carefully guarded, so as to prevent them from misapplying the evidence or making erroneous inferences therefrom. .

Verdict affirmed.

Chapman, J. did not sit in these cases.