Ramsdill v. Wentworth

Chapman, C. J.

The petitioners are cMldren ol William Ramsdill, deceased, who made his will, by which he devised all his property to his wife, without naming his children or intimating that his omission to provide for them was intentional. The provision of the Gen. Sts. c. 92, § 25, is that “ when a testator omits to provide for any of his children, or for the issue of a deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to if he had died intestate, unless they shall have been provided for by the testator in his lifetime, or unless it appears that such omission was intentional, and not occasioned by accident or mistake,” *321 The respondents asked the court to rule that the petitioners must produce the will, and show that the omission to provide for the children was occasioned by accident or mistake, and was not in tentional. He declined to make this ruling, and they excepted.

We think that the refusal was correct; for the language of the statute, “ unless it appears,” implies that the burden of proof is upon those who would make the intention appear. Unless the intention is made to appear, it is not to be presumed. It may appear from any language of the will which states or implies it; or if there is no such language in the will, it may be proved by any appropriate evidence. Wilson v. Fosket, 6 Met. 400. Converse v. Wales, 4 Allen, 512. But unless there is evidence of its existence, it will not appear. Exceptions overruled.