R.I. Hosp. Trust Co. v. Hail

• Decision Date: 02 July 1925
• Docket Number: No. 675.,675.
• Citation: 129 A. 832
• Parties: RHODE ISLAND HOSPITAL TRUST CO. v. HAIL et al.
• Court: Rhode Island Supreme Court

129 A. 832

RHODE ISLAND HOSPITAL TRUST CO.

v. HAIL et al.

No. 675.

Supreme Court of Rhode Island.

July 2, 1925.

Case Certified from Superior Court, Providence and Bristol Counties.

Suit by the Rhode Island Hospital Trust Company, as executor of the will of Edward L. Hail, deceased, against Edward George Hail and others, for instructions relative to distribution of personal estate. Certified for determination on bill, answer, and proof under (Jen. Laws 1923, c. 339, § 35. Decree in accordance with opinion.

Edwards & Angell, Walter A. Edwards, and Gurney Edwards, all of Providence, for complainant.

Arthur A. Thomas, of Providence, guardian ad litem of respondents.

John C. Knowles, of Providence, lor contingent interests, etc.

RATHBUN, J. This is a suit in equity, brought in the superior court by the executor of the will of Edward L. Hail, late of Providence, deceased. The prayer of the bill is for instructions relative to the distribution of the personal estate in the hands of the complainant. The questions are: (1) Whether the testator's only child, Edward George Hail, for whom no provision is made in said will, is entitled to share in the estate under the provisions of section 22, c. 298, G. L. 1923; (2) if he is so entitled, to what extent his share should be taken from the testator's personal estate, and how the complainant should marshal the personal estate for the purpose of providing that share. Said Edward G. Hail, the Rhode Island Hospital Trust Company, as guardian of his estate, the devisees and legatees under the will, said Trust Company, as trustee under the will of the testator's residuary estate, and the beneficiaries under the trusts of the residuary estate have been made parties respondent. The respondents who are non sui juris are represented by a guardian ad litem; and a representative of the contingent interests of persons not in being or not ascertainable whose interests may be affected by the case has been appointed in accordance with the provisions of section 21, chapter 339, G. L. 1923.

The case, being ready for hearing for final decree, has been certified to this court for determination, as provided by section 35 of said chapter, upon bill, answers, and proof.

By the will the testator attempted to dispose of his estate as follows: ne devised to his wife, respondent Eleanor D. Hail, bis real estate in Florida, valued at $7,500, and his homestead estate on Congdon street in Providence, valued at $12,000, and Dequeathed to her his articles of household or domestic use or ornament regularly located on or about his homestead estate, his consumable stores, his articles of personal use or adornment, his automobiles, and the sum of $10,000. He devised to his brother, respondent George Hail, all the residue of his articles of household or domestic use or ornament and all the residue of his real estate, consisting of an undivided half interest, valued at $9,250, in, the Hail homestead in Providence, and an undivided half interest, valued at $450, in a wood lot in the town of Lincoln, R. I. The aggregate value of the personal property specifically bequeathed to his wife and brother is $3,026. He bequeathed $500 to each of the respondents Edward Hail Dill and Edward Erickson. The residue of his personal estate he bequeathed to the Rhode Island Hospital Trust Company, upon trust to pay the net income therefrom to his said wife during her lifetime, and upon her decease in trust for such persons as she should by will appoint, or, in default of appointment and subject to any partial appointment, in trust to transfer the principal thereof to his brother, respondent George Hail, if he should be then living, otherwise to respondent the Homeopathic Hospital of Rhode Island. The will directs that all inheritance taxes be paid from the residuary estate as expenses of administration, and that the provisions in favor of the wife be deemed in lieu of her right of dower, her right to a widow's allowance, and all other rights in his estate. The value of the gross residuary personal estate is approximately $118,000, and the charges against this will amount to approximately $37,500, leaving a net residue of approximately $80,500.

The testator's widow has not signified her nonacceptance of the provisions of the will in her favor in lieu of dower in accordance with section 21, chapter 298, G. L. 1923, and the time within which she was entitled by statute to do so has now elapsed.

Section 22 of said chapter 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."

This statute applies to children born after the execution of the will as well as to the children in being when the will is executed. As the above statutory provision was taken from a Massachusetts statute, it must be presumed that said section was adopted in view of the construction placed upon the Massachusetts statute by the courts of that commonwealth. In re O'Connor, 21 R. I. 465, 44 A. 591, 79 Am. St. Rep. 814. Before said section was adopted the Massachusetts courts had decided that the statute from which said section 22 was copied applied to children born after the execution of the will, and before the testator's death. Bancroft v. Ives, 3 Gray (Mass.) 367. See, also, Industrial Trust Co. v. McLaughlin, 44 R. I. 350, 117 A. 428.

The next question is whether "it appears that the omission (of the testator to provide for his said child) was intentional and not occasioned by accident or mistake." No evidence was introduced to prove that the testator's failure to provide for his child was intentional, and, therefore, as was said in Inman v. Inman, 45 R. I. 206, 121 A. 113: "By force of the statute, it is presumed that the omission was unintentional and occasioned by accident or mistake." See Ramsdill v. Wentworth, 106 Mass. 320; Hurley v. O'Sullivan, 137 Mass. 86. Moreover, parol evidence as to the testator's intention is admissible (In re O'Connor, 21 R. I. 465, 44 A. 591, 79 Am. St. Rep. 814; Jenks v. Jenks, 27 R. I. 40, 60 A. 676; Horton v. Horton [R. I.] 129 A. 499), and it appears from the evidence that the testator, when he made the will, had no intention to disinherit any child which might thereafter be conceived and born.

As it does not appear that the testator's omission to provide for his child "was intentional and not occasioned by accident or mistake," said child is entitled to take the same share of the testator's estate that he would have been entitled to had the testator died intestate. Had the testator died intestate, the child would have taken one-half of the net personal estate, and all of the real estate, subject to the widow's right of dower. Sections 5554, 5546, G. L. 1923.

It appearing that the net residuary personal estate is more than sufficient to supply an amount equal in value to the estate, both real and personal, which the child would have taken if his father had died intestate, the question arises whether the specific devises and bequests and a general devise of real estate shall be exonerated from contributing to the child's share. Section 24 of said chapter 298 provides that:

"When a posthumus child, or a child, or the issue of a child, omitted in the will, takes under the provisions of section twenty-two or section twenty-three of this chapter, a portion of the estate of a testator, such portion shall be taken equally from all the devisees and legatees in proportion to the value of what they respectively receive under such will, unless in consequence...