In Re Potts' Estate , 304 Mich. 47 ( 1942 )

I concur in the result but do not agree that the issue of unintentional omission of plaintiffs from the will is open to question. Plaintiffs' case is bottomed upon Act No. 288, chap. 2, § 13, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 (13), Stat. Ann. 1942 Cum. Supp. § 27.3178 [83]), which applies only when a testator omits to provide for any of his children or for the issue of any deceased child, and it shall appear that suchomission was not intentional but was made by mistake oraccident. This will itself negatives any possibility that the omission was unintentional or made by accident or mistake. The will makes certain provisions for the son, Dwight A. Potts. The death of this son preceded the death of the testator, and plaintiffs are the children of this son. Plaintiffs claim that the failure to provide for them was not intentional. However, the sixth paragraph of this will expressly provides that if the testator's son, Dwight A. Potts, should die before the death of the testator, his part of the estate should be given to his wife and his son Robert in equal shares. Under the circumstances of this case, this provision of the will definitely and positively excludes plaintiffs herein, the children of Dwight A. Potts, from participation, and negatives any possibility that their omission from the will was unintentional.

Nor can these plaintiffs take under the provisions of Act No. 288, chap. 2, § 11, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 (11), Stat. Ann. 1942 Cum. Supp. § 27.3178 [81]), which provides that when a devise or legacy shall be made to any child of the testator and such devisee or legatee shall die before the testator leaving issue surviving the testator, such issue shall take the estate so given. This section does not apply when a different disposition of such legacy or devise shall be made or directed by the will; and this was done in the will now under consideration.