*1 part,” him M.’s whereas arranged give told “she had Edna arranged Edna give exceptions says bill of ^VIjS had “she reply ours.) in money-” (Italics Appellant in her abstract correctly copied brief insists the bill original suggests and be doubt bill the matter County. exceptions brought of Knox up from the Circuit Court respond- unnecessary. But think made we this is The statement a’pаrt challenging appellant’s appears ents abstract Abstract Argument their brief Insufficient entitled, “Brief on additional They prepare serve an Record.” did In required this court. abstract of the record Rule as duty appellant’s present these it is our take the circumstances as abstract submitted. with given the reasons the cause is reversed and remanded Nor judg- County
directions to the Enos? to enter its Circuit Court of specifically enforcing ment contract out in and decree set vesting appellant fee appellant’s Edna Lore the answer simple plaintiffs’ petition and title to all land described in the southeast appellant’s except the west half of the answer quarter quarter, fourth all and the of the southwest northeast (29), north- and the northwest fourth of the Twenty-nine Sixty-four quarter Thirty-two (32), Township all in east of Section (12) County, (64), Range west, Missouri; Scotland Twelve appellant vest in as to 160 acres last described the decree Julia undivided interest and in the heirs of Edna Lore an one-half interest; half deceased, remaining undivided Lore, partition further herewith. proceedings are not in conflict Lindsay Sedñon, GG-, concur. foregoing opinion by Ellison, C.,
PER is a- CURIAM: —The All opinion judges of the court. concur. dopted Margaret Regina Appellants, Millsap, Anna Lawnick Lydia Heyde. Frank Kinsall Bowman (2d) 658. W. S. Banc, 1930. en June *2 n <& D. D. Bandolph Beeves and Bandoph appellants. *3 Randolph <&Randolph appellants Williamson and
John I. en Banc. Stapleton respondеnts. F. P. dh and Cook Cummins for partition of real estate C.- This is an action DAYIS, plaintiffs Gentry counties. The aver situate in and DeKalb Schultz, they grandfather, Frederick heirs of are their maternal pretermitted for in because were not named upon agreed an to the trial court will. The cause was submitted judgment rendered court and, of facts from a stаtement said appealed. defendants, favor of signatures description
Omitting property, of the real agreed statement of facts reads: ‘‘ following agreed being facts in case: facts are to as this King Gentry County, City, Missouri, died Frederick late of day April, 1924, possessed on the 12th seized and lands petition case, embracing in the in this six desсribed hundred and forty $47,600; personal (640) value prop- acres erty probate that was in the said $7709.04, court inventoried lying along boundary, County DeKalb lands northern County .boundary ; land, Gentry southern the rental value of said year. per $2000 it is agreed,
“The said Frederick Schultz left a will which was made day correctly 11th July, 1918, executed on will which herein, set forth in the answer of the defendants said which *4 duly probate Gentry has been admitted Probate of Court County, Missouri, day May, 1924, 9th of and and on the is in words figures follows: “ ‘I, City King City, County, Frederick of Schultz, Gentry of the body being good strength Missouri, health, mind, now in of but and uncertainty desiring and life, disposition sensible to the of to make my hereby property strength, of and health and affairs while do ,.to publish following my last will and declare and testa- make, revoking hereby other or. wills me made at ment, all former time. “ just my I payment ‘Article First: of all and direct the debts expenses. funeral “ Anna and.bequeath my wife, I devise give, Second: ‘Article my personal following property all and the described Schultz, of (Here parcels acres cleseriрtion by real to-wit: of follows Missouri.) Gentry counties, of DeKalb situated and land “ I ‘Article Third: give, bequeath my devise and daughter, Lydia Schultz Kinsall, Heights Lots and Block Jersey One (1), Addition, City, Kansas County, Jackson Missouri. “ my ‘Fourth: To by my Frank Mary son Schultz wife, first Schultz, I give, bequeath devise and the sum ($5.00). of Five Dollars “ my daughter, Mary ‘Fifth: by my Mary To Schultz, wife, first Schultz, bequeath I give, ($5.00). devise and the sum of Five Dollars ‘ ‘ ‘ I hereby Sixth: appoint my do constitute wife, said Anna of, Schultz, my Executrix this will last and testament. “ I, Schultz, ‘In witness whereof Frederick my have to this last consisting my testament paper, of two sheets of subscribed day July, name this 11th of 1918. “ ‘Frederick Sci-iultz. “ foregoing instrument, consisting (2) ‘The pages, of two was signed date thereof Schultz, at the declared the said Frederick testament, presence to be his last will and in the of who at his us, request presence, presence and in his and in of other, each have subscribed names as our witnesses thereto. n “ King City, Millan ‘¥m. “ Mo.’ King City, ‘R. A. Winchester judgment duly
“Said will also Circuit established day Gentry County, Missouri, 1926; 5th April, on the Schultz, said Frederick testator herein mentioned, that at the years eighty-three age; time of his death was he was about being married, Mary Schultz, twice his first wife from whom he was year County, prior Gentry 1882 in divorced some time Missouri; wife, living together that while as husband and granted, born and before the divorce- was there to them two Mary Schultz; separa- children-, upon and Frank Schultz, father, Frank Schultz remained with his Frederick tion custody Mary mother, Mary in the of her Schultz remained Schultz. Frederick Schultz remained on the farm
“That southern Gentry Missouri, day on the part County, afterward, 1st November, 1882, present defendant, married the Anna who Schultz, widow; Mary Schultz, him as his that the now survives went Missouri, Joseph, St. and continued to live until to live at there day March, daughter, Mary 26th that the on the she died the-day Septem- to Peter Ushler on Schultz, wаs married n ber, 1889. marriage born of the between Peter Ushler “That there was children, daughter Mary case, two in this *5 the, Lawnick, Margaret wife John Lawnick, now and Regina Mill- only and widow, are the sole children and and heirs now a sap, who Schultz; Mary that no ehildern other said born of the at law Mary except wife Frederick Schultz to the Schultz and as herеin- before stated. marriage “That the Frederick Schultz with the defend- after Lydia Schultz, born Kinsall
ant Anna there was defendant marriage ITeyde, Bowman is the child of of Frederick who said person Anna Schultz,, Schultz and and is the same who named Lydia Kinsall; the will of Frederick Schultz Schultz daughter Mary Mis- Joseph, “That Ushler St. died at Mary day 6th souri, November, on the that the said Mary separation Schultz, daughter, Schultz, time from the Mary Joseph, of Frederick Schultz and resided in St. deaths; County, Missouri, respective until their Buchanan wife, Mary Schultz, Hospi- divorced committed to the State said Joseph, Missouri, November, Insane No. tal St. County Gentry County, Missouri, as an order of patient hospital until time of her
insane and remained said death. family daughter, Mary Schultz,,
“That raised Ignatious wife, Mary Schultz, Domek, who was a brother of said City Joseph. and resided in the of St. agreed stipulated parties is further all “It to this suit facts;” introducing any additional privilege of evidence have-the
(cid:127) offered advises that neither nor defendants The record or additional evidence. or introducеd further pertain 514 and Revised Statutes concern and Sections read; They involved. issues leaving person will, die, any
“Sec. 514. make last children, of such child children case or or descendants or child will, although such born death, or for in not named of their every making testator, such of the such or death after the regard any testator, children, such child or or far as shall so intestate; and shall be deemed to die descendants, for, descendants, shall entitled to such or be children, or child testator, if he personal, real and of the estate proportion assigned them, all intestate, shall be the same died had proportional legatees shall refund their heirs, devisees other part. any grand- child, shall devised to estate 516. When
“Sec. devisee die and such shall testator, relative other child descendants, shall leaving such descendants lineal testator, before the as such devisee would have personal, real or done take testator.” survived had case *6 grandchildren
I. The facts advise that are the (to-wit, Mary Mary Ushler, testator and that nee mother Schultz), daughter of testator, died before question presented will. ^e ^es^a^or his executed rel- statutes, involves the construction of and their they ativity to the Schultz. will of Frederick Plaintiffs aver that pretermitted by his heirs are are will, his thus to a share entitled though of his as had died intestate as sus- to them. The he dеpendent upon tention their claim is whether the clause will, my daughter, Mary by testator’s “Fifth: To to-wit: my Mary Schultz, bequeath first I give, devise and sum of ($5.00),” naming Five Dollars is tantamount providing for or plaintiffs in- his will. 514, Statutes 1919, substance, provides Revised that a shall be
testator deemed to have died' intestate to his child or children, or their not descendants, provided namеd or in his construing will. The cases that, said section advise and before hold a testator’s child or children, or their descendants shall be denied inheritance, it appear from must the will itself that such heir, pretermitted, forgotten averred to be by not the testator at the time of the execution of they the will. If the will shows were not they fo.rgotten, named or for within meaning operative statute.- The only section upon becomes mentioned unintentional omission by testator provide to name or for the lineal heir in will. In Guitar Gordon, his l. c. speaking say: subject, on this the court only-to “This section has been held provision make for children unintentionally or their descendants, parent omitted from ' forgetfulness any or other cause. If a expressly child is excluded any portion from will, the estate he is for in the meaning of act. In case, plainly appears it child forgotten. object . was not . . The of the section must be borne prevent parents in mind. 'It not from disinheriting is their chil- merely dren, provision but make unintentionally those omitted.’.’ n Subject rights to the marital spouse, any, a testator, of legal sound mind and age, pleasure, may his disinherit his des- cendants, them, his property pro- pleases, leave develops vided his will and demonstrates that the lineal heirs al- leged pretermitted forgotten. to be were not Whether a lineal heir forgotten depends upon the intentiоn of the testator as shown of the will. context the will shows that the heirs were not forgotten, pretermitted; then are not otherwise, they' pre- are termitted.
Adverting present called advises that the testator it to mind daughter, his plaintiffs, the mother of named bequeathed her, bnt a legacy her amount five dollars. While the legacy daughter alive, lеft his tantamount, had she been to a virtual her, disinheritance of effective, nevertheless his power *7 by plenary. to disinherit her that means was Had his daughter, Mary Ushler, death, then, been alive at his will, because she named and in for testator’s Section inoperative, would have remained will the inactive conclusively forgotten. demonstrates that Avas would have she not It and, excluded her from a further of his inheriting portion estate meaning consequently, she AA-ouldhave been for within the 514. of Section provides, substance,
Section in that 516, 1919, Statutes a Revised a lineal of child relative descendant or other of the testator shall will, given. take such in his if such the estate to child or relative child or relative be dead at the death of the testator. It is said that Aveight authority applies the of rule that such the follows statute beneficiary to case in the Avas time the will was a which dead the foregoing operation, made. A. L. R. With the statute in [3 1684n.] forget provide plain will the sIioavs that testator did not to the Speaking tiffs, kneAvof еxistence. of what Avhether not their 412-413, c. 516, Gordon, 408, is v. 17 Mo. l. now Section Guitar it is said: Aviththe eleventh above section,
“This taken in connection section which all courts concerned the execu- cited, that directs that meaning regard to true intent and wills, of shall have due the tion testator, controversy may principle by this furnishes which the give Mrs. to children of principle This would be determined. justice seemingly to her. The that was devised Guitar estate ignorant which rule, applied a case in the testator to Avhen If will ... child, would be obvious. death of his of the which have provisions to construed reference statute every say case, in such it was cited, that, not one been would take thеir mother’s children should that the of the testator intention than daughter be provision should made for the less share? children, intestacy her as to to an equal part estate, of the declare an right recognizes the principle that doing to violence would dispose prop- of his to children and his to disinherit testator pleases.” erty as he Revised Statutes 516, 514 and us, Sections the facts before On if a substance, that, provides, 1919, Section are correlated. child, personal, by his will to his giA-e estate, an real or testator or other child,' grandchild relation,
grandchild, or other lineal descendants him, then predeceased have shall relation given child, grandchild or suсh by other relation shall estate take the so then, plain- place evident, his will their It that stead. legacy tiffs, virtue of are five entitled to take the bequeathed will their testator, dollars their mother grandfather. tending that appears
No evidence to show will in the record his valid and Consequently, appears was contested or brоken. the will operative. plaintiffs entitled No doubt obtains but that are though grand given legacy the will. Even mother plaintiffs are them, and it father died intestate as to results estate, entitled to a one-third interest still fact does 86 S. [Story v. 188 Mo. W. Story, render the void. Allen, 247 S. ex W. State rel. Citizens’ Bank 411.] though plaintiffs an even entitled to inheritance are estate, binding, valid and testator’s one-third remains according right subject plaintiffs’ inheritance, devolves in course, the terms of will. Of are entitled intestates, legacies grandfather herit from their the devises *8 in pro prío provide plaintiffs’ his of will abate rata et tanto evidence, as As remember the the testator’s heritance intestates. we $8,000 $56,000. amount аbout valued at Of this estate was about left a personalty testator and the remainder real estate. The daughter. Sup- of a deceased two children and descendants the bequeathed plaintiffs’ his mother a pose testator, the had payment legacy speculated, the debts $15,000, which he after expenses rights, equal to one-third and his marital widow’s certainly legacy, a of his If will had estate. the 516, mother, Section as the descendants of their under plaintiffs, legacy be- thus would been and obtain the have to claim entitled say plaintiffs, as queathed. Could we then that intestates of $15,000 obtain, in to the testator, were entitled to claim and addition whole in the testator’s estate? legacy, a one-third interest they so, they could, by having do their think not. could Ye $10,000 as sum about a legacy prorated, claim and obtain the say legacy $15,000, value of one-third by by $25,000 sum of as will and inheritance thus obtain nor Clearly, neither the statutes the testa- share of the estate. contemplated meant, evidently, effect. situation оr tor that He daughter bequeathed, his descendants exclude, by legacy her inheriting portion of estate. That any the remainder from daughter dead, he her to be to be or that knew his believed plaintiffs, know the existence alive, or he knew or did not 516, By question. of Section the descendants virtue aside the is meaning within mother, were plaintiffs of thеir bequeathed legacy though named and a they had been 514, Section 303 by will. It is said in Lounden v. Bollam, 490, 496, 302 Mo. l. c. ‘‘ 440; 258 S. W. The presumed, testatrix is to know statute, but to have written her will with the in view. statute It written as incorporated statute was part it as a of it.” The will shows an intention part on the of the testator to exclude his daughter and her from descendants the remаinder of his estate. forgotten. Thus shows that were not II. that, Plaintiffs contend pro order to hold that the will vides for them, provision the will show must that the for them was substantial. arguing question, they say In dollars five
left
to their deceased
coming
mother and
to them
°£ Section 516 was not such
pro
v^rPIe
a substantial
vision as to render
514 inapplicable
inopera
tive. Plaintiffs,
to support
Meyers
v.
position,
Watson,
cite
v. 26 Slusher, Drake, Mo. Woods v. 135 Mo. 37 S. 393, W. Fugate 980; v. 119 Mo. 95 W. Allen, App. Conrad, S. v. Conrad 707; Murphy Enright, 811; 280 W. v. 264 S. S. W. v. Lounden 595; 258 Bollam, 440; Block, Mo. S. W. Block 3 Mo. v. 556; In Cupples Peak, re 199 S. W. Peak v. Estate, 533; Hay, v. McCourtney Mathes, S. W. *9 Mo. Jamison 740n, 742n; Gerrish, 46 39 v. 34 Am. Am. Gerrish Dec. 587; 69 N. E. Rep. Rudolph Rudolph, v. Ill. Am. S.) 585; (N. 2 L. R. Ernshaw v. Betjemann, St. A. Pimel (2d) 803; Fitzsimmons v. S. W. 37. Quinn, S. W. Smith, Cooley, <OC.,concur. judgment affirmed. Kenwood and concurs; J., dissents; Blair, White, P. J., PER CURIAM:— failing majority judges Walker, J., concur, A absent. Banc. to Court en
cause is transferred C., foregoing opinion filed PER CURIAM:—The Davis, All adopted Court en Bane. Two, cause, in Division Walker, J., concurs judges except White, dissents. who concur, J., only. the result