46 Mo. 441 | Mo. | 1870
delivered the opinion of the court.
The only question in the record depends upon the construction to be given to the ninth section of the statute of wills, and that seems to have been definitely settled in the case of Bradley v. Bradley, 24 Mo. 311. The case shows that in 1862 Malinda Donnelly died in Macon county, possessed of considerable real and personal property, and some time subsequent 'to her decease a paper was found purporting to be her last will and testament,
The will was admitted to probate in the Probate Court of Macon county. The plaintiffs, who are the grandchildren of Malinda Donnelly, and her only heirs at law, are not named or in any wise mentioned or provided for in the will, and they brought suit in the Circuit Court to set aside the will, claiming the entire estate. The court sustained a demurrer to the petition, holding that Hall took, as devisee under the will, and was entitled to one-third part of the estate. This view was also taken by the District Court.
The ninth section of the present statute in regard to vails provides that if any person make his last will, and die, leaving a child or children, or descendant of such child or children (in case of their death), not named or provided for in such will, although horn after the making of such will or the death of the testator, every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate; and such child or children, or their descendants, shall he entitled to such proportion of the estate of the testator; real and personal, as if he had died intestate, and the same shall be assigned to them; and all the other heirs, devisees, and legatees shall refund their proportional parts. (2 Wagn. Stat. 1365, § 9.)
The law declares in the most express and explicit terms that if the child, children, or their descendants, be not named or provided for by the testator, such child or children, or their descendants, shall be entitled to such proportion of the estate, real and personal, as if the testator had died intestate. Now, had the testatrix, Malinda Donnelly, died intestate, it is obvious that, under our law of descent and distributions, the plaintiffs would have been entitled to the whole estate.
This very section of the statute, which was numbered 11 in the code of 1845, received a thorough consideration and definite construction in Bradley v. Bradley, supra. There the testator,
It seems to have been supposed that the concluding paragraph of the section, which says that “all the other heirs, devisees, and legatees shall refund their proportional parts,” gave to the devisee, Hall, an equal part with the other children. But this is a misapprehension of the true meaning of those words. Taken in connection with the whole context, it is easy to perceive that they have reference to where the testator malees devises and legacies to heirs who would take a distributive share in the event that he died intestate; but they have no application to the case of a stranger, where the whole will is a nullity, or, as Judge Ryland says, a blank. Destroy the whole wall as to those who are not named or provided for, and they are entitled to come in on equal terms with those who have been preferred and advanced by the testator’s bounty. The devisees and legatees in such a case are not disinherited, but, instead of taking under the will, they are
Judgment reversed and cause remanded.