Appeal of Ingraham

• Decision Date: 10 March 1919
• Citation: 105 A. 812,118 Me. 67
• Parties: Appeal of INGRAHAM. In re FOSTER'S ESTATE.
• Court: Maine Supreme Court

105 A. 812

118 Me. 67

Appeal of INGRAHAM. In re FOSTER'S ESTATE.

Supreme Judicial Court of Maine.

March 10, 1919.

Motion from Supreme Judicial Court, Cumberland County, at Law.

In the matter of the estate of Robert C. Foster. From decree of the judge of probate, William M. Ingraham, guardian, appeals. Remanded, with directions.

Argued before CORNISH, C. J., and SPEAR, HANSON, PIIILBROOK, DUNN, MORRILL, JJ.

Augustus F. Moulton, of Portland, for appellant.

Scott Wilson and John B. Thomes, both of Portland, for appellee.

DUNN, J. Robert C. Foster, namesake of his father, distinguished from him as junior, and whose only prospective heir he was, is pretermitted from his father's will, a document executed when the child was loss than 5 years old, and which became operative before he had attained the age of 8 years, by its probate in Cumberland county on May 4. 1916.

The question in this case is whether exclusion of the boy from provision of that will was intentional, and not occasioned by mistake, on the part of the testator, a subject of investigation regarding which the will itself is silent.

At the outset, and without scrutiny, the disposition of the estate may seem to be unreasonable and unnatural, even to savor of unjustness; but, under the rule of law applicable, the maker of the will was not bound to have good or any reason for what he did, or, if he had reason to state it. With the wisdom or propriety of his act the law has nothing to do. If adequate and convincing proof, extrinsical the will, shall show that when that instrument was made, the son being present to his mind, the parent purposely ignored him, and otherwise made bestowal of his bounty, then we must hold that the testator's will be done. Whittemore v. Russell, 80 Me. 297, 14 Atl. 197, 6 Am. St. Rep. 200; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949).

In natural and moral law is the basis of the relationship of parent and child. From this source flows the presumption, crystallized in a statute (R. S. c. 79, § 9) harking back to the Province of Massachi!' setts Bay (St. 12 William III, c. 7; Ancient Charters, p. 351), that the omission to provide for a child, or the issue of a deceased child, living when a will is made, is the result of forgetfulness, infirmity or misapprehension, and not of design. But the presumption is rebuttable. The statute adverted to reads:

"A child, or the issue of a deceased child, not having any devise in the will, takes the share of the testator's estate, which he would have taken if no will had been made, unless it appears that such omission was intentional, or was not occasioned by mistake, or that such child or issue had a due proportion of the estate during the life of the testator." R. S. c. 79, § 9.

There is no pretense that Robert C. Foster, Jr., had befitting share of the estate in the lifetime of his father. The sole inquiry of the case is, to repent, whether omission to provide for him in the will was intentional, and not occasioned by mistake, on the part of his immediate ancestor. The clause, "or was not occasioned by mistake," is introduced in the statute to enforce or give emphasis to the meaning of the preceding word, "intentional," which is the ruling expression. It is written, in Hurley v. O'Sullivan, 137 Mass, at page 89), the word "mistake," as here used is not to be construed as meaning such mistake "as would or might have caused the testator to entertain a different intention from that which omission from the will would show, but mistake or accident in the will or in its transcription." It must, in the context, refer to such mistake or mistakes as are likely accidentally to occur in the preparation of a will, as momentary rather than purposed forgetfulness, owing to the distress of the testator, or error, on the part of the scribe or otherwise, in reducing the testator's intention in that behalf to writing, and not to misapprehension or misunderstanding as to matters outside the will, whether of law or of fact. The statute does not state two contingencies in which omission from the will would work to deprive the child of his share, that is to say, an intentional omission and also where, but for a mistake, the testator would not have done that which he intended to do, and actually did. On the contrary, it states one and only one contingency. Hurley v. O'Sullivan. supra.

In its language the statute is broad enough to embrace all competent evidence tending to prove that such omission was intentional and not occasioned by mistake. Whittemore v. Russell, SO Me. 297, 14 Atl. 197, 6 Am. St. Rep. 200; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949. The evidential office of the will is to prove that the child is without devise under it. The inquiry as to whether he was omitted therefrom by design and without mistake, and not by blunder or oversight, arises under the statute. Seeking the testator's intention, it is pertinent to inquire, consonantly with the law of evidence, concerning him and his son; the affection, or lack thereof, that subsisted between them; of the motives which may be supposed to have operated with the testator and to have influenced him in the disposition of his property. All the relevant facts and circumstances, including the intention of the testator as he declared it before, at, or after the making of the will, may be shown. Whittemore v. Russell, supra; Wilson v. Fosket, 6 Metc. (Mass.) 400, 39 Am. Dec. 736.

What then of Robert C. Poster, the elder? Of his child and his relation to him, of his property, of its testamentary disposition, and of his intention, as he may have declared it, that concerning? Bred to the law, he came to the bar, and entered upon the practice of the profession at Portland, in partnership with his own father, but he did not especially actively concern himself with the business of the firm. In 1906 he married. The child first born of the marriage died in early infancy. In 1910 his wife left him, taking little Robert not then 2 1/2 years old, and going to her girlhood home in Illinois. Efforts to bring about reconciliation between husband and wife, in which both the testator and his parents participated, the one by letters manifesting his better traits and characteristics, and importuning that she return to live with him, the others by personal interviews with the wife, after a journey afar for that purpose were unavailing. A month after the dissociation, the probate court in Cumberland county granted the mother custody and care of the child, to continue throughout his minority. Three or four months later on, while Mr. Foster was absent in Europe, his wife, who...