Minot

Allen, J. 1. By Pub. Sts. c. 127, § 21, it is provided 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 they have been provided for by the testator in his lifetime, or unless it appears that the omission was intentional, and not occasioned by accident or mistake.” This statute applies to children born in the testator’s lifetime, but after the making of the will. Bancroft v. Ives, 3 Gray, 367. At the time the will was made, the testator’s son was not born, and we are not informed whether he then or ever had any other child. After a bequest to his wife, he gave the whole of the rest of his property to a trustee, who was to pay the whole income to the testator’s wife during her life, and the reversion was to go to those persons who would then be his heirs at law by blood; that is, to his children, if any should then be living. He knew that his wife was pregnant, and the above provision was no doubt intended to include the child, and there was therefore no omission to provide in his will for his children, if there should be any living at his death. The case is to be distinguished from Bowen v. Hoxie, 137 Mass. 527, where after the testator’s death a child was born, which it would seem that the testator did not have in mind at the time of making his will. In the cases now before us, the provision of the will apparently had reference to such children as might be born after the male [41] ing of the will. Buckley v. Gerard, 128 Mass. 8. Peters v. Siders, 126 Mass. 135. 2. When a husband and wife join in a mortgage of her land to secure a debt of the husband, her estate is considered only as a security for the debt, for which the husband and his estate are primarily liable; and the wife or her heir, after the death of the husband, will be entitled to have it exonerated out of the estate of the husband. Savage v. Winchester, 15 Gray, 453, 455. Deane v. Caldwell, 127 Mass. 242, 246. It is therefore to be determined as a question of fact whether the note for $20,000, signed by the husband and his wife, and secured by mortgage of her land, is to be deemed the debt of the husband, or of the wife. There is nothing to negative the ordinary inference, when a house is built by one person on land of another, that the house and stable when erected on her land became hers. Webster v. Potter, 105 Mass. 414. If therefore the debt was his, it would imply that he intended to bear the expense of erecting the buildings for the family establishment, leaving the whole real estate to stand in her name. It seems clear that the furniture was bought with the husband’s funds, and there is nothing to negative the inference that it was his property. It appears to be included in the bequest to her of “ all my articles of household and personal use or ornament.” The cost of the furniture alone is not stated. It is said that “he expended over $35,000 in the construction of a house and stable upon said real estate, and in purchases of furniture for the same.” Upon this statement, we should hardly suppose that the cost of the furniture would be as much as $15,000, though it might be so. If less than that amount, then certainly a portion of the husband’s expenditure must have been upon the buildings, even if she is held bound to pay the note for $20,000. It appears by inference from the terms of the will that the husband was possessed of some means. Apparently he had some real estate, and also securities to more than the value of $10,000. The fact of such an establishment, costing over $35,000 besides the land, warrants an inference of some means or income with which to maintain it. But we are not informed, otherwise than by inference from the terms of the will, what [42] property or income lie had, or whether she had any means whatever with which to pay the interest, amounting to $900 a year, on the note, or the note itself when due, in September, 1896. It is stated that the contracts for the construction of the buildings and the purchases of furniture were made in the sole name and as the sole liability of the husband, and that all debts incurred thereunder were exclusively his personal debts. The date of the will was March 23,1891, and the date of the note and mortgage September 15,1891. At the time of giving the latter, the husband knew that under the will she would receive but $10,000 in ready money, which would be available for paying the interest or principal of the note, provided she should continue in the home which they were then establishing; but the income which she would receive under the will is not stated. He also knew that in case of his death she would have their child to support, if it should live, as he had made no provision for its immediate support, otherwise than by his provisions for her. On the whole, the somewhat meagre facts which are stated, with the inferences which may be drawn from them, seem rather to point to the conclusion that the testator intended to assume the payment of the mortgage note as his own personal debt. So ordered.