
    Elijah Wilder, Appellant, &c., versus Daniel Goss.
    A testator, among other descendants, left sundry children of a deceased daughter, in his will, he mentions her husband as his son-in-law, and gives a legacy tc one of the said grandchildren ; from which it was inferred that he had not forgotten the other children of his said daughter; and that they were therefore . not entitled to a proportion of his estate, as though he had died intestate, under the provision of the statute of 1783, c. 24, § 8.
    This was an appeal from an order or decree of the judge of probate for this county, accepting and allowing the report of commissioners, appointed by him to make partition of the real estate, of which Thomas Goss, deceased, died seised and possessed, among the devisees named in the last will of said deceased, according to the said last will. The appeal was claimed and made in right of Sophia Wilder, wife of the appellant, on the ground that she, being a grandchild, and by representation an heir at law, of the said deceased, and not having any legacy or devise made in her favor in the said will, nor being mentioned therein, ought by law to have had her share or portion of said deceased’s estate assigned to her, in the same manner as if the said Thomas had died intestate ; yet the said commissioners had not assigned to her any part of said estate in the said partition. And it was agreed that the said Sophia was such grandchild and heir at law, her mother, Rebecca Thurston, having been a daughter of the testator, and having died before him, and before the execution of the said will, leaving seven children, who all survived the testator, their grandfather.
    The testator,
    in his said will, observes that, having before that time conveyed to his son-in-law, John Thurston, (who was the husband of his daughter Rebecca,) the principal part of his real estate, in payment of a debt he owed him, in reward for his labor and service, and to enable him to pay a debt, for which the testator had mortgaged his farm, he shall not devise any portion of his estate to him. He then gives certain chattels to his * grandson, Thomas Thurston, brother of the said Sophia ; and after divers other legacies, specific and pecuniary, he devises the residue of his estate to his three daughters then living.
    By the statute of 1783, c. 24, § 8, it is enacted, “ that any child or children, or their legal representatives, in case of their death, not having a legacy given him or them in the last will of their father or mother, shall have a proportion of the estate of their parents assigned unto him, her, or them, as though such parent had died intestate ; provided such child, children, or grandchildren, have not had an equal proportion of the deceased’s estate bestowed on him, her, or them, in the deceased’s lifetime.”
    
      Smith, for the appellant.
    The most liberal construction given to the statute by this Court in the cases of Terry &f Al. vs. Foster & Al., 
      
      Wild Of Ux. vs. Brewer, 
       and Church vs. Crocker, 
       which are all the cases that appear to have brought this provision into question, is, that though it is not necessary that the child or grandchild should have a legacy by the will, yet he must be named, or in some way noticed in the will. Unless the Court in this case will go beyond the principle, in those decisions, which seems to be intelligible, definite, and.certain, the decree of the judge of probate must be reversed. Another construction, excluding the claim of the appellant, will leave the law so unsettled that every case will be a new one, and require a distinct adjudication,
    
      Burnside, for the respondent.
    The three cases already mentioned are the only ones in our own reports upon this point; and we should look in vain into the decisions of other courts for aid in the construction of this clause of this statute.
    The provision was unquestionably intended to protect heirs from the forgetfulness of their ancestors and the mistakes of scriveners. So says the preamble of the provincial act of 12 Will. 3, which contained a similar provision, and of which the statute oí 1783 is a * revision. And in the cases decided, the Court adopt the reason given in that preamble, though the act itself is repealed. Then, if it appears to the Court that the child claiming the distributive share was not forgotten by the testator, the provision of the statute has no application.
    Now, in the case before the Court, there is satisfactory ground of presumption that the wife of the appellant was not forgotten. The testator mentions her father, John Thurston, as his son-in-law, and speaks of an advancement to him. The very term son-in-law implies a reference to his wife and children ; and if his wife, Rebecca, had survived her father, she certainly could have claimed no share of his estate ; much less can her child claim. Further, the naming of Thomas, a brother of the appellant’s wife, shows plainly that he had called his grandchildren to mind.
    
      
       1 Mass. Rep. 146.
    
    
      
       2 Mass Rep. 570.
    
    
      
       3 Mass. Rep. 17.
    
   Per Curiam.

The cases referred to in the argument in principle

approach very near to the case before us. Wherever it appears that the testator has, through forgetfulness or mistake, omitted to bestow any thing upon his child or grandchild, the legislature wisely intended to effect that which it was highly reasonable to believe the testator, but for such forgetfulness or mistake, would himself have done. To go further than this would be, in its measure, to defeat the principal intention of the legislature, in the first section of the statute, which authorizes every person seised of an estate in lands, which may extend beyond his own life, to devise the same as he shall think fit. Wherever, then,'it may be fairly presumed, from the tenor of the will, or of any clause in it, that the testator intentionally omits to give a legacy or to make a devise to his child, or grandchild whose parent is dead, the Court will not interfere.

How is the case at bar in relation to these principles ? Have we sufficient ground to say that the appellant’s wife was omitted, in the distribution of her grandfather’s property, through his forgetfulness of her, or by any mistake? We think not. The testator discovers * a full and particular recollection of her father, and of some past dealings between them. He recognizes him as his son-in-law, which must have brought his deceased daughter to his recollection. He gives a legacy to one of her children, who bore, his name ; by which it appears that the family was in his remembrance. These two circumstances, we think, bring this case within the reason of the former decisions of this Court which have been referred to.

Decree affirmed  