Smith v. Smith

• Decision Date: 09 December 1938
• Docket Number: No. 1420.,1420.
• Citation: 2 A.2d 896
• Parties: SMITH v. SMITH et al.
• Court: Rhode Island Supreme Court

2 A.2d 896

SMITH

v. SMITH et al.

No. 1420.

Supreme Court of Rhode Island.

Dec. 9, 1938.

Certified from Superior Court, Kent County.

Suit by Ernestine M. Smith against Myra M. Smith and others for the construction of the will of Joseph V. Smith, deceased. Certified to the Supreme Court under Gen.Laws 1923, c. 339, § 35.

Decree in accordance with opinion.

Francis V. Reynolds, of Providence, for complainant.

Ernest A. Jenckes, of Providence, guardian ad litem.

CONDON, Justice.

This is a bill in equity brought in the superior court for the construction of the will of Joseph V. Smith, late of West Warwick, deceased, and certified to this court in accordance with General Laws 1923, chapter 339, § 35.

The testator executed his will on August 16, 1922, and died, leaving said will, on April 3, 1933. He left surviving him his widow, Ernestine M. Smith, the complainant, and four children, Florianne M. Smith, Robert M. Smith, Rodrigue R. Smith and Myra M. Smith, the respondents. All of these children, except Myra M. Smith, were born before their father executed his will. Myra M. Smith was born almost five months later, on January 1, 1923.

The testator omitted to provide for any of these children in his will, but he did incorporate therein the following provision: "Third: I have intentionally omitted to mention, or to give, devise or bequeath anything of which I may die seized and possessed, or to which I may be in any way entitled at the time of my decease, to any person or persons other than my wife, Ernestine M. Smith."

The question arises whether the testator omitted his children, particularly his after-born child, Myra M. Smith, intentionally or by accident or mistake. It is now provided by General Laws 1923, chapter 298, § 22, as amended by Public Laws 1931, chapter 1754, § 2, approved April 24, 1931, as follows: "Sec. 22. When a testator omits to provide in his will for any child of his born after the execution of his will, either during his lifetime or after his death, or for any issue of a deceased child of his dying after the execution of his will, or for any issue born after the execution of his will of a deceased child of his dying before such execution, such child or issue shall take the same share of the testator's estate as such child or issue would have been entitled to if the testator had died intestate, unless it appears that the omission was intentional and not occasioned by accident or mistake. * * *" At the time the testator executed his will sec. 22 read as follows: "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...