Jenks v. Jenks

• Decision Date: 08 March 1905
• Citation: 27 R.I. 40,60 A. 676
• Parties: JENKS v. JENKS et al.
• Court: Rhode Island Supreme Court

60 A. 676

27 R.I. 40

JENKS

v. JENKS et al.

Supreme Court of Rhode Island.

March 8, 1905.

Bill by Ruth A. Jenks against Prank R. Jenks and others. Heard on demurrer to bill. Demurrer overruled.

Argued before DOUGLAS, C. J., and DUBOIS and BLODGETT, JJ.

Lellan J. Tuck, for complainant. Cooke & Angell, for respondent, Frank R. Jenks.

DOUGLAS, C. J. This is a bill in equity which alleges that the complainant is the widow and sole beneficiary and legatee under the will of William H. Jenks, deceased; that said testator left children surviving him, but that his omission to provide for them in his will was not occasioned by accident or mistake, but was intentional on his part; and that the complainant is in possession of a certain portion of said real estate situated in Rhode Island, and has been in possession of other portions since the death of the testator, which she has conveyed away by warranty deeds. The bill further represents that by force of Gen. Laws R. I. 1896, c. 203, § 22, and by reason of the fact that there are children surviving the testator, there exists a cloud upon her title, which she prays may be removed by decree of this court declaring that the omission of the said testator to provide in his said will for his said children, or any of them, as aforesaid, was intentional on his part, and not occasioned by accident or mistake, and confirming her title to the said real estate as against any or all of the said children who are made respondents to the bill.

One of the respondents demurs to the bill, and upon the demurrer the substantial question arises whether this court has jurisdiction in equity, in the circumstances set forth, to ascertain the intention of a testator with respect to the omission of his children from his will. The argument of the respondents' counsel is that the complainant has no present title in fee and no equitable title or interest in the land, except her dower right, until the fact is made manifest, which she prays in her bill to have established; that, under the provisions of our statute, upon the death of William H. Jenks the title in fee in all the real estate belonging to him passed directly to his children, as if he were intestate, and there are no allegations in said bill of complaint which would authorize a court of equity to divest these heirs at law of their title.

We do not so construe the statute. The will gives the whole of the property to the widow, and does not mention the children. The statute provides that, unless this exclusion was intentional, the children shall take as if no will had been made; but we cannot say, before the question is determined, whether or not the...