47 Mo. 533 | Mo. | 1871
delivered the opinion of the court.
This was an action of ejectment, both parties claiming under James Evoy, the plaintiff by descent and the defendant by purchase. The plaintiff, Mrs. McCourtney, was the child of said Evoy, and not having been provided for, as is claimed, in her father’s will, sues for a child’s share. Her father, the said James Evoy, died in 1830, leaving Bridget, his wife, and five children, having duly made a will containing the following provision : “Also, I give and bequeath to my beloved wife, Bridget, the sole and entire possession and disposal and management of all my real and personal estate, also the sole and entire management and education of my children; and that she shall have the management, distribution and disposal of everything as completely, according to law, as I myself now have, during her widow
This provision underwent a thorough examination in Block v. Block, 3 Mo. 594, and received a construction that has ever since been adhered to. In that case one of the children was expressly excluded from any share in the estate, which was all given by the testator to his wife and the other children. It was contended that, in order to make a provision for a child, the testator should make a beneficial devise or .legacy, and that to mention the name of a child and to declare that such child shall have nothing is no provision. But the court held that the intention and meaning of the act was that when a child is forgotten then he shall have a share, but when he is mentioned in the will and excluded, that is a provision within the intent of the act. Judge Tomkins dissented, and the next Legislature, to make the meaning' unequivocal and conform to the opinion of the majority of the court, changed the act so as to provide for intestacy in favor of the child if he or she is “ not named or provided for.” Under the doctrine of Block v. Block this addition does not change the meaning of the act, and the decisions made by this court since that case was decided will apply as well to the act of 1825 as to the one now in force. The tendency where the common law prevails is to give the ancestor complete control over his estate, and is strongly manifest in the interpretation given this act, as well
In commenting upon the provision in its present form, Judge Richardson, in Hockensmith v. Slusher, 26 Mo. 237, says: “This provision of the statute has been several times before this court for judicial construction, and it may now be considered as settled that the object of it is to produce an intestacy only when the child, or the descendant of such child, is unknown or forgotten, and thus unintentionally omitted; and the presumption that the omission is unintentional may be rebutted when the tenor of the will or any part of it indicates that the child or grandchild was not forgotten.” In that case a bequest had been made to a son-in-law without naming his relation, and, upon application of the daughter for a child’s share, the court held that the bequest must have been given to her husband because he was such, and the daughter, though not named or provided for, could not have been forgotten. In Guitar v. Gordon, 17 Mo. 408, the testator named his daughter, who was then dead, but did not name her children. The court held it a sufficient provision for his said grandchildren, as they were represented by their mother, who was in his mind, though dead. In Beck v. Metz, 25 Mo. 70, the testator left it “ entirely to the will and judgment of my wife, Catharine, how and in what manner she thinks proper to dispose of the estate, as well as with reference to our child or children as with reference,” etc. He left but one child, and the court held that she was not forgotten. On the other hand, in Bradley v. Bradley, 24 Mo. 311, and in Hargadine v. Pulte, 27 Mo. 423, it was found that no allusion was made to the children, and as to them an intestacy was declared. Admit, for the purpose of considering this question, that in the case at bar the form of the devise is such as to
the judgment will be affirmed.