Smith v. Smith

Supreme Court of New Hampshire

Smith v. Smith

54 A. 1014, 72 N.H. 168, 1903 N.H. LEXIS 36

CourtSupreme Court of New Hampshire

DecidedMay 5, 1903

StatusPublished

Cited by3 cases

This text of 54 A. 1014 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Smith, 54 A. 1014, 72 N.H. 168, 1903 N.H. LEXIS 36 (N.H. 1903).

Pincite

Opinion

Parsons, C. J.

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, 67 N. H. 344, *170 347, 348; Gage v. Gage, 29 N. H. 533. The executor is accordingly advised that the two children of the testatrix are sufficiently referred to in the will to preclude them from sharing in the estate, under section 10, chapter 186, Public Statutes.

Case discharged.

All concurred.

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Parsons, C. J.

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, 67 N. H. 344, *170 347, 348; Gage v. Gage, 29 N. H. 533. The executor is accordingly advised that the two children of the testatrix are sufficiently referred to in the will to preclude them from sharing in the estate, under section 10, chapter 186, Public Statutes.

Case discharged.

All concurred.

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Bluebook (online)

54 A. 1014, 72 N.H. 168, 1903 N.H. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-nh-1903.

Opinion

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