I agree fully with my Brother Durand> that it was competent to try the question presented in this> case by a jury, and that the verdict of a jury stands precisely as in any civil case, and is conclusive in cases where' the testimony offered has any legal tendency to support, the conclusion reached. But, in my opinion, there was not a scintilla of evidence which had a legitimate tendency tc establish the fact that the intervener was omitted by mistake or accident.
It may be conceded that the contention of the learned counsel for the petitioner is correct, that the bequest of keepsakes to her does not amount to provision, within the-meaning of the statute. Does the mere failure to make such provision create a presumption that the testator omitted to make provision for her by accident or mistake? The language of the statute (section 3810, How. Stat.) ought to be a sufficient answer to this question. The; statute declares:
“ When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share,” etc.
The statute does not, it seems to me, admit of a construction which shall dispense with a showing of either of the two requisites before one for whom provision is omitted shall be entitled to take. These two prerequisites arer First, an omission to provide; second, that it shall be-made to appear that the omission was by mistake. The; statutes in some of the other states, under which it has. *312been beld that the burden of proof is placed upon those disputing the claim of the child omitted, differ from our statute in this very particular. Nor do the cases of McCallum v. McKenzie, 36 Iowa, 510, and Railroad Co. v. Wasserman, 33 Fed. Rep. 872, sustain the contention of intervener’s counsel on this point. These are cases which deal with the rights of an heir born after the making of the will. It may well be held that a presumption would arise that the father would make provision for such -child, and that the omission to make provision was not intentional. This presumption arises, not from conditions existing at the time the will is executed, but from a change in conditions occurring thereafter. How, then, shall it be made to appear that the omission was accidental, by merely showing, as in this case, that the deceased was friendly with petitioner; that they kept up a correspondence; that he was an old man, though mentally competent to make a .will? If this be enough, then it becomes at once the province of juries to administer estates according to their own sense of right. This statute was not intended to abridge the rights of a man to do what he will with his own. On the contrary, where it is established by the probate of the will, as in this case, that the deceased is competent, and has in fact executed the will, the legal presumption is that the instrument expresses his wishes. This presumption can be overcome, not by showing what, according to some people’s sense of right, would have been a proper disposition of the property, but by .showing facts and circumstances which lead to a conclusion that the testator had other views or other purposes than those expressed, or did not have the purposes expressed in the will, but that by accident or mistake the provision for the child was omitted. This could, of course, be made to appear by declarations of the testator evidencing a purpose to provide for the omitted child, or by declarations *313made after the will, showing that he supposed he ■ had provided for such child; and perhaps in other ways. But it cannot, in my judgment, be done by simply showing.a . state of facts which would show it to have been eminently proper to provide for such child, without fixing a limitation upon the power of disposal of one’s property by will which the statute gives no color for.
I think the finding of the jury should be reversed.
.McGrath, 0. J., concurred with Montgomery, J.