Vance v. Rood

• Decision Date: 01 February 1967
• Docket Number: No. 20,20
• Citation: 101 R.I. 608,226 A.2d 143
• Parties: Jeannette P. VANCE, Executrix v. Christine M. ROOD et al. Appeal
• Court: Rhode Island Supreme Court

Page 143

226 A.2d 143

101 R.I. 608

Jeannette P. VANCE, Executrix v. Christine M. ROOD et al.

Appeal No. 20.

Supreme Court of Rhode Island.

Feb. 1, 1967.

[101 R.I. 613] Deeb G. Sarkas, Pawtucket, for complainant.

John F. Cuzzone, Jr., Providence, for respondents.

Before ROBERTS, C.J., and PAOLINO, POWERS, JOSLIN, and KELLEHER, JJ.

OPINION

ROBERTS, Chief Justice.

This is a bill in equity brought for the construction of the will of Thomas F. Vance, Jr., deceased, late of the city of Pawtucket. The complainant, widow of the testator, is the sole beneficiary named in the will and is the executrix thereunder. The respondents are grandchildren of the testator who were born to a daughter of the testator living at the time of the execution of the will but who died in 1955 prior to the testator's death in March 1963. The cause was heard by a justice of the superior court, who subsequently under the provisions of G.L.1956, § 9-24-28, certified the will to this court for construction.

It appears from the record that the testator executed the instant will on February 15, 1936, leaving everything to his second wife, the executrix under the will. No mention is made therein of his only child, Patricia Ann, his daughter by a prior marriage, who at the time of the execution of the will was about eight years of age. In 1951 the daughter Patricia married, and of this union two children were born, the respondents here, namely, Christine Marie and John Harold Rood, Jr. She died on July 31, 1955 survived by these two children. The testator died on March 3, 1963 survived by his widow, the executrix, and these grandchildren. In her bill for construction complainant prays that the court ascertain the interests of the respondent grandchildren, and the will was certified to this court on September 13, 1965 under the provisions of § 9-24-28.

We are confronted with the question whether respondents, concededly the children of the daughter of the testator who were born after the execution of the will and for whom no provision is made therein, are entitled to the benefits of the presumption of unintentional omission established and provided for in G.L.1956, § 33-6-23.

Said section reads, in pertinent part: '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.' It is not disputed that respondents here are 'issue of a deceased child' of the testator who died 'after the execution of his will' and, as such, are within the scope of the statute.

This statute, in its prior as well as its present form, has been held to raise a presumption that the omission of a child from the will of the testator is unintentional. In Mitchell v. Mitchell, 48 R.I. 1, 3, 135 A. 35, decided by this court in 1926, in construing a prior version of the statute, this court said: 'The presumption is that the omission was unintentional.' In construing the statute in its present form in Lindsley v. Lindsley, 60 R.I. 85, at page 89, 197 A. 98, at page 99, decided in 1938, this court said: '* * * that there is a presumption that a testator's omission of his children from his will is accidental and not intentional.'

The presumption has been held to be rebuttable, however, and in Lindsley v. Lindsley, supra, the court went on to say: '* * * that such a presumption may be rebutted; and further that the amount of evidence necessary to prove the testator's intention naturally varies in different cases, but in all cases the intention to omit a child, whether born or unborn, must be established by a plain preponderance of the evidence.' The posture then in which this case is presented to us is one in which the executrix and proponent of the will has adduced evidence at the hearing in the superior court for the purpose of establishing that the omission from the will of the respondent grandchildren of the testator was intentional and not a result of accident or mistake. She now contends that this evidence is sufficient to meet the burden of proving by a fair preponderance of the evidence that the omission was intentional.

The executrix raises a preliminary question, whether the cause is properly before this court for determination in view of the conceded fact that the superior court made no findings of fact based on the...