113 Mo. 66 | Mo. | 1892
This was a proceeding for the partition of a farm lying in Buchanan county, containing one hundred and forty-four and sixty-five hundredths acres, and the"record' before us shows that William C. Thomas, the owner of this farm, had been twice married and had children by two wives. On the twenty-third day of January, 1854, he executed a will by which he devised the farm in controversy, on which he then lived, to his wife, Mary C. Thomas, during her life, with remainder to her children begotten by him, there being in the will no'other reference to, or mention of his children, by name or otherwise.' On the eighteenth day of February, 1864, the testator having died, this will was duly probated and Mary C. Thomas, the widow, occupied the farm, claiming it under the will, till her death in 1888. The trial court held that William 0. Thomas died intestate as to the children of his first wife, and the descendants of those who had died, and this, in connection with the statute of limitations, and the nature of the title of a pretermitted heir, presents the only question for decision.
I. Secton 10 of the statute of wills of 1855, in force in 1864, which is the same as section 8877, 'Revised Statutes, 1889, provides that every testator
The children of the testator by his wife Mary 0., though not expressly mentioned, were named and provided for within the meaning of this section, for the naming of children as a class, without further description, includes all who answer that description at the time the will took effect. Allen v. Claybrook, 58 Mo. 124.
But it is equally clear that his children by the first wife were not named or provided for in this will, within the meaning of the section cited. Where children are not named, the presumption is that they were unintentionally omitted, and, while this presumption may be rebutted, when the tenor of the will, or any part of it, indicates that they were not forgotten, yet it cannot be made to appear by parol evidence, but it must appear on the face of the will, that the testator remembered them, and, where they are neither expressly named nor alluded to as to show affirmatively that they were in the testator’s mind, such presumption becomes conclusive. Bradley v. Bradley, 24 Mo. 311; Pounds v. Dale, 48 Mo. 270; Wetherall v. Harris, 51 Mo. 65.
The children of the first wife are not expressly named or referred to as a class, nor does it affirmatively appear on the face of the will that they were remembered by the testator at the time he executed it, and there was, therefore, as to them an intestacy, and the ruling of the trial court on that proposition was correct.
III. The ancestor of the children by the first wife-having died intestate as to them they had the right to set up their interests, which were legal interests, in the land by inheritance from him in an action of partition such as this is. McCracken v. McCracken, 67 Mo. 590. The judgment will be affirmed.