Mitchell v. Mitchell

• Decision Date: 22 November 1926
• Docket Number: No. 737.,737.
• Citation: 135 A. 35
• Parties: MITCHELL v. MITCHELL et al.
• Court: Rhode Island Supreme Court

135 A. 35

MITCHELL

v. MITCHELL et al.

No. 737.

Supreme Court of Rhode Island.

Nov. 22, 1926.

Certified from Superior Court, Providence and Bristol Counties.

Suit by Grace P. Mitchell against Helen L. Mitchell and others for construction of the will of William J. Mitchell, deceased. Certified to Supreme Court under G. L. 1923, § 4968. Decree in accordance with opinion.

Woolley & Blais, of Pawtucket, for complainant.

Harold P. Watjen, of Pawtucket, for respondents.

STEARNS, J. This is a bill in equity for the construction of the will of William 3. Mitchell, late of Lincoln, brought by complainant, his widow, against the respondents, his three minor children. The cause, being ready for hearing for final decree, has been certified to this court. G. L. 1923, c. 339, § 35.

Complainant and William J. Mitchell were married September 3, 1908. By his will, executed May 5, 1910, after providing for the payment of his debts and funeral expenses, the testator devised and bequeathed all of his estate to his wife. The respondents, Helen, Marjorie, and Annabel, were born after the execution of the will in the lifetime of the testator in the order as named: May 18, 1911; March 7, 1913; March 19, 1917. William J. Mitchell died October 6, 1925. His will was admitted to probate October 26, 1925.

Complainant claims that the failure of her husband to mention or to provide in his will for after-born children was intentional, and not occasioned by accident or mistake, and that the children consequently are not entitled to any share in their father's estate.

Section 22, c. 298, G. L. 1923, 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 first question is, Does section 22 apply to after-born children with the same effect as to those in being at the time of the execution of the will?

Section 22 became a law February 1, 1896. G. L. 1896, c. 203, s. 22. Prior to 1896, under the statute then existing, a child born after the execution of his father's or mother's will, in the lifetime of the parent, for whom no provision was made in the will, took a share of the parent's estate as if no will had been made. As against him, the will was inoperative, and he took a share of the estate regardless of the will or of the intent of the testator. Chace v. Chace, 6 H.I. 407, 78 Am. Dec. 446. In Re O'Connor, 21 R. I. 465, 44 A. 591, 79 Am. St. Rep. 814, it was decided that, as section 22, the provision now in question, was taken from a like provision in the statute of Massachusetts (now G. L. Mass. 1921, c. 191, § 20), it was to be presumed the provision was adopted by our Legislature, in view of the judicial construction already made of the statute in the courts of the place of its origin. This court, following and adopting the construction of the courts of Massachusetts, has decided in numerous causes, many of which are not reported, that an intentional omission under the statute can be proved by parol evidence. Jenks v. Jenks, 27 R. I. 40, 60 A. 676; Horton v. Horton, 46 R. I. 492, 129 A. 499; R. I. Hospital Trust Co. v. Hail, 47 R. I. 64, 129 A. 832.

The intention to omit may appear in the terms of the will, or may be established...