Moon v. Estate of Evans

• Decision Date: 01 November 1887
• Parties: MOON v. ESTATE OF EVANS, DECEASED.
• Court: Wisconsin Supreme Court

69 Wis. 667

35 N.W. 20

MOON

v.ESTATE OF EVANS, DECEASED.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, Iowa county.

J. P. Smelker and J. M. Smith, for appellant.

A. McArthur and Reese & Carter, for respondent.

ORTON, J.

The petition of the appellant in the county court was made under section 2287, Rev. St., which reads as follows, to-wit: “When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section”--which is, that “it shall be assigned to him as provided by law in case of intestate estates.” The will of Mary Ann Evans, deceased was executed October 8, 1883. She died February 17, 1885, and it was admitted to probate May 4, 1885. She was the mother of the petitioner, and she entirely omitted him in her will, and provided for the other of her children, except Harriett Rogers, and for her husband, by various devises and legacies. The county court found against the petitioner, and upon appeal to the circuit court, the jury in that court found “that Mary Ann Evans did not unintentionally omit her son William [the appellant] from her will; in other words, did intend when she made the will, that William should have none of her property after her death.” From the judgment of the circuit court so determining, this appeal is taken.

The only question is one of fact, and from an examination of the evidence we cannot say say that the jury did not decide correctly. It seems from the evidence that the daughter of the testatrix, Harriett Rogers, had been amply provided for by her mother in her life-time, before making her said will.

William H. Moon, the petitioner and appellant, was sentenced, in the state of Illinois, to the Joliet penitentiary for life, for murder, the eighteenth day of November, 1873, and was pardoned after the death of his mother, May 18, 1885. It appears from the evidence, also, that his mother had made every effort possible to defend him, and to secure his pardon, and at a very great expense which she complained of as having ruined, or nearly ruined, her, and which was much more than his equal share in her estate. It appears, also, that she intended to change her will “if...