In re O'Connor

• Decision Date: 06 November 1899
• Citation: 44 A. 591,21 R.I. 465
• Parties: In re O'CONNOR et al.
• Court: Rhode Island Supreme Court

44 A. 591

21 R.I. 465

In re O'CONNOR et al.

Supreme Court of Rhode Island.

Nov. 6, 1899.

Application of E. D. V. O'Connor and others for an opinion on an agreed statement of facts.

Edward D. V. O'Connor, Edmund S. Hopkins, and Franklin P. Owen, for parties.

STINESS, J. Gen. Laws, c. 203, § 22, provides that when a testator omits to provide in his will for any of his children, or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless it appears that the omission was intentional, and not occasioned by accident or mistake. The case stated raises the question whether such intention must appear in the will, or whether it may be shown by extraneous evidence. The provision appears for the first time in our statutes in the section above mentioned, and it was evidently taken from Pub. St. Mass. c. 127, § 21, where it has long been in force. When a statute is adopted which has already received judicial construction, it is to be presumed that it was adopted in view of such construction. Miller v. Coffin, 19 R.I. 164, 36 Atl. 6; End. Interp. St. § 371, notes 80, 81. See, also, Sayles v. Bates, 15 R.I. 342, 5 Atl. 497. In Massachusetts it has been held that an intentional omission, under this statute, may be shown by parol. Wilson v. Fosket, 6 Mete. (Mass.) 400; Bancroft v. Ives, 3 Gray, 367; Converse v. Wales, 4 Allen, 512; Hurley v. O'Sullivan, 137 Mass. 86. The reasons given for such a construction are (1) that it could never have been the intention of the legislature to restrain the unlimited power of devising by will, especially when the whole object could be accomplished by the gift to a child of a shilling; (2) that the statute in its present form developed from a prior statute, under which it had been held that the intention must be gathered from the will; and (3) that, as the right of an omitted child does not arise under the will, but by statute, parol evidence does not operate to contradict the will, but to prove a fact required to be established by statute. In this state, under a statute providing that an after-born child, not provided for in a will, shall inherit in the same manner as if no will had been made, it was held in Chace v. Chace, 6 R.I. 407, that the claim of the child could not be resisted by proof that the omission was intentional. The opinion distinguished the case from Wilson v. Fosket, supra, upon the ground of the statutory proviso in...