Melville Fuller

“ Justice FIELD, said: 'The only object of the statute is to protect the children against omission or oversight, which not unfrequently arises from sickness, old age, or other infirmity, or the peculiar circumstances under which the will is executed. When, however, the children are present to the mind of the testator,-and the fact that they are mentioned by him is conclusive evidence of this,-the statute affords no protection, if provision is not made for them. ”

“ But the provision we are considering concerns children in being when the will is made. As to children born after death, or the making of the will, the reason why the intention to omit them should appear on the face of the will is obvious. It is the same as that upon on which the doctrine of revocation rests,-the change in the testator's situation. But this reason loses its force, so far as children living when the will is made are concerned; and this explains the marked difference between the sections of the statute before us applicable to the two classes. ”

“ Where a devise is, on the face of it, clear and intelligible, yet from external circumstances an ambiguity arises as to which of two or more things, or of two or more persons, the testator referred to, it being legally certain that he intended one or the other evidence of his declarations, of the instructions given for his will, and of other circumstances of the like nature, is admissible to determine his intention. ”