In re the Estate of McMillen

OPINION OF THE COURT. MILLS, C. J. The civil laAV regardiug decent having been altered prior to the death of decedent, this case must be decided solely under the statutes of the Territory in existence at the time of the death of decedent and such of the common law as is applicable thereto. This case is not affected by sections 38 and 39, Session Laws of 1901, as they were passed after death of decedent. 1 The only statutes of this Territory which seems to be applicable to this case, are sections 1947 and 2031, Compiled Laws of 1897, both of which distinctly give every person twenty-one years old and of sound mind, the right to dispose by will of his separate estate, without restriction. 2 Under the common law a child could be disinherited without being mentioned in a will, unless it appeared that the omission of his name occurred through inadvertence or mistake. Shoulder on Wills, section 482. This harsh rule was changed in Massachusetts as early as 1700; in New Jersey before the Declaration of Independence, and the statutes of those States have been followed by legislation of a like character in upwards of thirty of the States of the Union. So jealous was the common law of the right of every one to dispose of his property according to his wish, that the Supreme Court of Massachusetts, by several decisions held that although their statute gave to a child to whom no legacy was left by a will a distributive share in the estate of his parent, that notwithstanding such statute such child could take nothing, where it appeared that the omission of the parent to provide for him was intentional. Terry v. Foster, 1 Mass. 146; Wild v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17; Wilder v. Goss, 14 Mass. 357. 3 In this case it will be observed that the divorce of Maggie McMillen from her husband, was granted on October 13, 1888, and that by said decree the decedent was ordered to pay the sum of $12.50 per month from and after the date of the decree for the maintenance of appellant, and it cannot therefore be contended in the face of these monthly payments, that the omission to mention appellant was caused by or was due to inadvertence or mistake, nor is there anything to show in the record that such was the case. There is no error in the judgment complained of, and. the same is therefore affirmed. McFie and Baker, JJ., concur. Parker, A. J., having tried this case below did not take part in this decision,