Woods v. Drake

37 S.W. 109, 135 Mo. 393, 1896 Mo. LEXIS 262

• Court: Supreme Court of Missouri
• Decided: October 7, 1896
• Status: Published

Opinion

Gantt, P. J.

This is an action by Mrs. Alice Woods, the adopted daughter of Erancis Drake, late of Scotland county, Missouri, claiming to be a preter-'rnitted child and therefore entitled to a share of the estate of said Erancis Drake.

Francis Drake died testate in Scotland county, January 4, 1893. He left a widow, Mrs. Mary R. Drake, for whom he provided in his will in lieu of dower. He left no child or children save and except Mrs. Woods, the' appellant, his adopted daughter, who claims as an heir of said Drake because she was not named in his last will and testament.

It is true she was not named in so many words, but it is insisted by the other devisees that she was not forgotten because by his will the testator devised a large portion of his estate to her four children, giving each one by name a distinct portion. This presents the only question on this appeal.

Is there anything in’ the will to rebut the presumtion that Mrs. Woods was forgotten because she was not named or provided for in the will? Section 8877, R. S. 1889.

In Hockensmith v. Slusher, 26 Mo. 237, this section which has remained unchanged since the revision of 1845, was construed by this court and the construction then given it has never been departed from but has always been approved when considered in subsequent cases. It has in a sense become a rule of property and a departure from it now would doubtless imperil many titles. In that case Judge Richardson speaking for the court said: “This provision of the statute has been several times before this court for judicial construction, and it may now be considered as settled that the object of it is to produce an intestacy only when the child or the descendant of such child is unknown or forgotten, and thus unintentionally omitted, and the presumption that the omission is unintentional may be rebutted when the tenor of the will or any part of it indicates that the child or grandchild was not forgotten.” Block v. Block, 3 Mo. 594; Guitar v. Gordon, 17 Mo. 408; Beck v. Metz, 25 Mo. 70; Weld v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17.

“And whenever the mention of one person, by a natural association of ideas, suggests another, it may reasonably be inferred that the latter was in the mind of the testator and was not forgotten or unintentionally omitted. Thus it has been decided that by the mention,, of a daughter, though dead at the time of making the will, it will be inferred that her children were not forgotten. Guitar v. Gordon, 17 Mo. 408. The mention of grandchildren will exclude the parent. Weld v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17.”

Accordingly in that case it was held that a bequest to a son-in-law without mentioning that he was his son-in-law rebutted the presumption that the daughter was forgotten.

Much stronger is the inference and presumption that the father had not forgotten his daughter when he remembered each of her four children by their names, and gave each a specific share of his estate, and this presumption is greatly strengthened when it is remembered these children were then all minors and living with their mother, the appellant.

Applying to this will the construction uniformly given to the statute in the previous decisions of this court we must hold that the testator did not forget Mrs. Woods and did not die intestate as to her. The judgment of the circuit court is accordingly affirmed.

Sherwood and Burgess, JJ., concur.