McDermott
Bank of America National Trust & Savings Ass'n v. McDermott
Opinion
Lead Opinion
Duniway, J.
Thomas A. Sawyer died testate on September 9, 1958, and his will was admitted to probate on October 15, 1958. On May 8, 1959, Dorothy Alberta McDermott (formerly Sawyer), his only child, filed a petition to determine heirship. In response, appellant bank, as executor of the will *472 of Ella P. Sawyer, who died November 28, 1958, filed a statement claiming the entire estate. The court found that Dorothy was named in the will, but that Thomas ‘ ‘ unintentionally made no provision in said Will for said Dorothy ...” and that she is a pretermitted child. A decree was entered accordingly. The executor bank appeals. Its appeal is well taken.
The will is on a printed form. A copy follows: [See following page.]
At the hearing, no evidence was offered as to Thomas ’ intention to provide for Dorothy, except the file in a divorce action between Thomas and his former wife, Dorothy P. Sawyer. That action was filed by the wife September 27, 1918. An interlocutory decree was entered February 7, 1919, and a final decree February 9, 1920. Custody of Dorothy was awarded to the wife. On March 22, 1921, Thomas moved to modify the decree, by changing custody of Dorothy to himself. The motion was…