
    Doane, Appellant, versus Lake, Administrator cum testamento annexo.
    
    Although a testator omit to make, in Ms will, any provision for one of Ms children, and it does not appear that the omission was intentional, the will may nevertheless be approved without any condition or restriction.
    The remedy for such child is, not by resisting the probate of the will, but by subsequent proceedings in the Probate Court or otherwise.
    This is an appeal from a decree of the Judge of Probate, allowing the will of Bangs Doane. The testator had several children, living at the time of his decease, of whom the appellant is one. No devise or legacy was made to the appellant. There was no evidence to show whether the omission was intentional or occasioned by mistake, or to show that the appellant had had an equal proportion of the testator’s property bestowed upon him, during the lifetime of the testator. The will was approved without qualification or condition.
    
      A. W. Paine, for the appellant.
    The appellant never had his portion of the estate. No provision was made for him in the will, and it does not appear that the omission was intentional. The will, therefore, should not have been approved at all. But if approved, it should have been done only upon condition that the appellant should have the same share, as if his father had died without making a will. R. S. ch. 92, sec. 18.
    
      T. C. Woodman, for defendant.
    The remedy of the appellant, if he have any, is not by resisting the probate of the will, but by seeking in the Probate Court his share in the distribution of the personal property, and by petitioning for a partition as to the realty. R. S. ch. 92, sec. 17, 18, 19, 20, 24, 25; ch. 108, sec. 21; ch. 105, sec. 24; Terrey v. Foster, 1 Mass. 146 ; Church v. Crocker, 3 Mass. 17; Wilder v. Goss, 14 Mass. 357; Tucker v. Boston, 18 Pick. 162; Wild v. Brewer, 2 Mass. 570; Merrill v. Sanborn, 2 N. H. 499.
    The probate of the will is conclusive only as to its due execution. R. S. ch. 92, sec. 25. And there is no distinction between lands and chattels, as to the effect of the probate. Dublin v. Chadburn, 16 Mass. 433.
   Tenney, J.,

orally.—The will maybe good and effectual as to all its provisions, limited only by such rights as the appellant may have in the estate. But there can be no mode of giving it such an effect, except by the allowance and approval of it. After its allowance and approval, its import may be modified, at law, so far as may be requisite for securing to the appellant whatever rights he may be able to prove.

Decree affirmed. No costs.  