
    McIntire, Ap’t, v. McIntire, Ex'x.
    
    A son living at the time of the execution of his father’s will cannot contest the allowance of the will on the ground that he is not named or referred to in it.
    Appeal, from a decree of the judge of probate, allowing the will of Emmons Mclntire. The appellant, a son of the deceased, born before the will was made, is not named or referred to in the will. He makes no objection to the allowance of the will except the omission to name or refer to him. The court dismissed the appeal, and the appellant excepted.
    
      Drew & Jordan, for the plaintiff.
    
      O. Ray and W. S. Ladd, for the defendant.
   Bingham, J.

Every child or issue of a child of a deceased testator not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, both real and personal, as he would have been had the deceased died intestate. G. L., c. 193, s. 10; Gage v. Gage, 29 N. H. 533 : Farnum v. Bryant, 34 N. H. 9.

In such a case, if the property not devised or bequeathed shall be insufficient to satisfy the just share of the child, after allowing the advancements received by him, the insufficiency shall be con- ' tributed in just proportion from the property devised or bequeathed. G. L., c. 193, s. 11. The rights of the appellant are independent of the will, and are not affected by it.

Exception overruled.

Carpenter, J., did not sit: the others concurred.  