Citation. In re Estate of Treloar, 151 N.H. 460, 859 A.2d 1162, 2004)
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Brief Fact Summary.
Josiah James Treloar executed a will naming his son-in-law as his executor. The children of the son-in-law sought to take a part of the Treloar’s estate as pretermitted heirs because their mother’s name was not specifically mentioned in the will.
Synopsis of Rule of Law.
The issue of a named child in a will is not precluded from taking under a pretermitted heir statute for the reason that their parents name is named when parent is only the executor, and not a beneficiary under the will.
Facts.
Treloar executed a will naming his “son-in-law, Leon Merrill of Concord, New Hampshire,” as his executor. The will did not make any devise or bequest to Merrill or his family. Merrill’s children petitioned to take a portion of Treloar’s estate as pretermitted heirs.
Issue.
Whether a will that makes reference to the testator’s son-in-law and names him by name constitutes a gift to his wife, and precludes his children from taking under a pretermitted heir statue. .
Held.
No. The gift here makes reference to the testator’s son-in-law does not include a gift to his wife and family because the will only appoints the son-in-law as the testator’s executor. The will does not make a gift to the son-in-law. Furthermore, the will does not mention the mother’s name thus the children are not excluded from taking under a pretermitted heir statue.
Discussion.
The law presumes that if a testator did not specifically disinherit any of his living children at the time that he makes a will, then the issue of those children may take as pretermitted children under the statute.
