McCourtney v. Mathes
47 Mo. 533
Mo.
1871
Check Treatment
Bliss, Judge,

delivered the opinion of the court.

This wаs 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 fаther, 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 tо 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 disрosal of everything as completely, according to law, as I myself now have, during her widow*535hood. But in case she should change hеr mind and marry, my will is that the estate in her possession at the time shall be disposed of according to law among my surviving heirs.” The widow never mаrried, but in 1855, two of the children joining with her in the deed, she conveyed the land in controversy to John Evoy, through whom the defendant claims title. The validity of the will as against the plaintiff, Mrs. McOourtney, must first be considered; ‍‌​‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌​​​​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‍and if we find her to have been sufficiently provided for, it will be unnecessary to consider the other questions presented by counsel. This will was executed and proved under the law of 1825, which provided in substаnce that if any person shall make his last will and testament, and die leaving a child not provided for in such will, every such testator, so fаr as shall regard such child, shall be deemed to die intestate, etc. (R. C. 1825, p. 795.)

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 exрressly 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 оrder to make a provision for a child, the testator should make a beneficial devise or .legacy, and that to mention thе 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 thе 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 intеnt ‍‌​‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌​​​​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‍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 madе 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 *536as to similar acts in other States. A provision, apparently designed to protect a child from being totally disinherited, is construed to mean only that the testator must remember that he has s'uch a child. Where the civil law prevails such a provision would hardly have received such a construction, and it may well be doubted whether the restrictions of that enlightened code upon the power of the ancestor to disinherit his children are not more consonant to reason, more in accordance with the law of nature, than the freedom in that regard given by our system.

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 whеn 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 mаde 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 bеquest 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 prоvision ‍‌​‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌​​​​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‍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 thе 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 Brаdley 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 purposе of considering this question, that in the case at bar the form of the devise is such as to *537give the property itself, rather than a trust, to thе testator’s ■widow, we are to consider whether, upon the construction given the statutes in the cases above cited, Mrs. McCourtney was provided for in her father’s will, or whether she was unknown or her existence forgotten by him at the time of its execution. It is plain that she must have been in his mind. There are two allusions by the testator to his children: one in giving to his widow their management and education, and оne *in giving a remainder to his heirs, contingent upon her marriage. They were all remembered or were all forgotten; and while he rеmembered them collectively, can it be said that he had forgotten them all individually? The object of the statute was to guard the tеstator against the effect of a mistake in providing for some of his children to the exclusion of others, through forgetfulness of their еxistence, or in otherwise disposing of his property in such forgetfulness, and the failure to allude to them is .made evidence that they were so forgotten. In speaking of his children or heirs, had the testator named somd of them, with no allusion to the plaintiff, we might then assumе that she was forgotten; but where all are remembered collectively and equally provided for, with nothing to indicate that one was more in his memory than another, we must assume that each one was remembered and provided for.

The other judges concurring,

the judgment will be affirmed.