
    William A. Bowdlear & another vs. Elizabeth L. Bowdlear & others.
    A child who, under Gen. Sts. c. 110, has been adopted by and has taken the name of a testator, is not, under Gen. Sts. c. 92, § 25, entitled to the same share of his estate asif he had died intestate, when by the will, made before the adoption, special provision is made for her by the name she then bore.
    Bill ih EQUITY, filed January 16,1873, by William A. Bowdlear and Thomas Green, executors of the will of Samuel G. Bowdlear, against Elizabeth L. Bowdlear, widow of the testator, Fanny Lincoln Bowdlear and others, named in the will as legatees, praying for instructions.
    The case, as it appeared from the bill and answers, on which it was reserved by Ames, J., for the determination of the full court, was as follows: Samuel G. Bowdlear made his will May 4, 1860. February 11, 1861, he and his wife petitioned the Probate Court for leave to adopt a child named Fanny Lincoln as their own child, and upon this petition it was ordered by the court that Fanny Lincoln, from and after February 11,1861, should be deemed and taken for all legal intents and purposes as the legal child of the petitioners. August 10, 1863, Fanny Lincoln’s name was, by order of the Probate Court, changed to Fanny Lincoln Bowdlear. The testator died August 10, 1872. In the will, Fanny Lincoln Bowdlear is mentioned as follows : “ And my said trustees shall pay, convey, and deliver one half of said principal sum,” [of ten thousand dollars,] “ or the property in which it shall then be invested, to Fanny Lincoln, of whom my wife and myself have had the care for some time, and whom we deeply love, to have and to hold the same to her, her heirs and assigns, free from the control or interference of any husband; but if the said Fanny Lincoln shall not have arrived at the age of twenty-one years at the time of the decease of my said wife, then I direct the said trustees to continue to hold the said last mentioned half part in trust, with the powers above given, paying to the said Fanny, or for her use, the net income thereof, or such portions thereof as they shall see fit, till the said Fanny shall arrive at the age of twenty-one years, or shall die prior to that time, when they shall pay, convey, and deliver the said half part and any accumulations of income to the said Fanny, her heirs and assigns.” “ I give and bequeath to said Fanny Lincoln my gold watch, which I wish her to preserve and wear in remembrance of her uncle.”
    Fanny Lincoln Bowdlear claimed that she was the legal child and heir of the testator; that she had not been provided for in the will; that such omission was occasioned by accident or mistake ; that she had not been provided for by the testator in his lifetime, and that therefore she was entitled to take the same share of his estate, both real and personal, that she would have been entitled to if the testator had died intestate. The other defendants claimed that the property which had come into the possession of the plaintiffs as executors should be disposed of according to the provisions of the will.
    
      Gr. F. Homer, for Fanny Lincoln Bowdlear.
    The testator has not provided for this child by the will. There is a legacy to Ifanny Lincoln, who is mentioned as one “ of whom my wife and myself have had the care for some time, and whom we deeply love,” but, at the date of the execution of the will, the testator had no child. The adoption of this child by the testator was an event not contemplated by the will; a status then arose which is not covered by the will, and there has been no testamentary action by the testator upon the new relation of parent and child.
    
      Gr. S. Hillard, for the other defendants,
    was not called upon. Ames, J. We see no ground on which it can be claimed that the will omitted to provide for the person who now bears the name of Fanny Lincoln Bowdlear. It is true that, when the will was made, her name was Fanny Lincoln, and that the formality of her adoption, in compliance with the laws of the Commonwealth, was not gone through with until about nine months after-wards. This proceeding, if the testator had died intestate, would undoubtedly have given her a right of inheritance which she did not have before, but it could have no effect upon his last will, previously made, and purporting in its terms to make special provision for her. The love for her (expressed in the will) was the reason for the provision in her favor, as well as for her adoption as his child. The testator lived more than eleven years after that adoption, and the proper inference from the fact that he made no change in his will would seem to be that he had already made all the provision for her benefit that he intended to make. The law will interfere to correct a last will and testament, or to direct a different disposition of the estate from that indicated by the testator, under Gen. Sts. a. 92, § 25, unless it shall appear that the testator intentionally omitted to make provision for one of his children, and that such omission was not occasioned by accident or mistake. Here it appears that there was such an intent. Decree accordingly.
    
     