Pounds v. Dale

• Decision Date: 31 July 1871
• Citation: 48 Mo. 270
• Parties: WILLIAM AND MARGARET POUNDS, Respondents, v. N. H. DALE, Appellant.
• Court: Missouri Supreme Court

48 Mo. 270

WILLIAM AND MARGARET POUNDS, Respondents,

v.N. H. DALE, Appellant.

Supreme Court of Missouri.

July Term, 1871.

Appeal from Third District Court.

This suit was brought by plaintiff by virtue of her rights under the general law of descents and distributions. Judgment in the lower court was for plaintiff, and was affirmed in the District Court.

N. H. Dale, in pro. pers., for appellant.

In Massachusetts and New Hampshire, where statutes similar to our own existed, the courts invariably held that if it appeared from the will, or from any part of it, or by just inference it was presumable, that a child not named in the will of his parent was not unknown to or forgotten by the testator, but was before the mind of the testator when the will was made, and the claims of that child were at all considered by the testator when disposing of his property, then an intestacy as to that child could not be declared. (Black v. Black, 3 Mo. 594; Guitar v. Gordon, 17 Mo. 408; Hockensmith v. Slusher, 26 Mo. 237; Wilder v. Goss, 14 Mass. 357; Church v. Crocker, 3 Mass. 17; Wilson v. Fosket, 6 Metc. 400; Tucker v. City of Boston, 18 Pick. 162; Merrill v. Sanborn, 2 N. H. 499; 1 Redf. Wills, 435, § 19; id. 432, §§ 16, 18; id. 426, note 7; id. 453-5, § 5.)

Early in the history of this State the Supreme Court of the State gave the same construction to our statute (see Black v. Black, 3 Mo. 594), and it has ever since been the uniform construction in every case where the facts were such that the rule would apply. (Hull v. Dowdall, 20 Mo. 359; Reed v. Ownby, 44 Mo. 204; Tucker v. Boston, supra.)

We think that the language of the will in question clearly shows that the plaintiff and all the other children were before the mind of Oliver Beach when he was disposing of his property, and that his intention that none of his children should have any of his property is very clearly expressed.

T. A. Sherwood, with George W. Randolph, for respondent.

The declaration of law given on behalf of plaintiffs was correct. (R. C. 1855, p. 1568, § 10; Bradley v. Bradley, 24 Mo. 311.) The decisions of our own State, on which appellant relies, do not apply here. Those of Massachusetts cited by him were made upon a different state of facts and under a statute differing widely from ours (Wilson v. Fosket, 6 Metc. 400; Bradley v. Bradley, supra), and the same may be said of the decisions of other States which he cited.

An unnamed or unprovided-for child can only be cut off from his share by “an equal proportion of the testator's estate bestowed on him in the testator's lifetime by way of advancement.” (R. C. 1855, p. 1568, § 11.)

BLISS, Judge, delivered the opinion of the court.

Margaret Pounds is the daughter of Oliver Brock, deceased, and claims that, as to her, he died intestate, from the fact that she was not mentioned in his will. She and her husband therefore bring ejectment to recover certain real estate of which said Brock died seized, and which was purchased by defendant of his devisee. The language of the will is as follows:

“After paying my funeral expenses and expenses of my sickness, I wish one hundred and forty dollars paid to my son William, it being borrowed money; also I wish one hundred dollars paid to my son John, it being borrowed money. After all my just debts are paid, I give and bequeath to my wife Jane Brock all my property of all kinds, real, personal and mixed, to have and to keep the same for her sole benefit, not to be controlled by anybody. In short, I give her the title in fee simple to everything I may be seized of.”

The statute now, as when this will was made, provides that “the ancestor shall be deemed to have died intestate as to such child or children not named or provided for in the will.” (Gen. Stat. 1865, ch. 131, § 1; Wagn. Stat. 1365.) It has frequently been considered by this court, and in the language of Judge Richardson in Hockensmith v. Slusher, 26 Mo. 237, “it may now be considered as settled that the object of it is to produce an intestacy only when the child or the descendant of such child is unknown or forgotten, and thus unintentionally omitted; and the presumption that the omission is unintentional may be rebutted when the tenor of the will or any part of it indicates that the child or grandchild was not forgotten.” The subject was reviewed by us in McCourtney et al. v. Mathes, 47 Mo. 533, and the above doctrine adhered to.

In construing the will under consideration, the only question to be considered is whether there is anything in the will that...