(after stating the facts). These are actions of ejectment for the recovery of certain lands in Platte county, in this district. The defendants have filed motions for judgment on the pleadings. And as the two cases involve the same questions of law and fact, they are submitted jointly to the court.
Both parties claim title under the will of George W. Yocum, which was admitted to probate in Platte county, Mo., in 1854; and the controversy arises on the fifth paragraph of said will, which is in words and figures as follows:
“5. To my beloved son, William Franklin Yocum, my natural son, I bequeath absolutely the northeast quarter of section seven of township fifty-three and range thirty-five, the place I now reside on in Platte County, Missouri, subject forever to the reservation for my burial place, made in clause two of this will, and, further, with the express understanding and restriction, namely, that if*724 my said son dies without legal issue, descendants of his, legitimate issue of his, said lands shall pass to Susan Evans, wife of Joseph B.- Evans; Marina Botts, wife of Thomas Botts, Eliza Botts, wife of William Botts, my nieces; to Elizabeth Erame, my sister, wife of John Erame, and to George, son of my brother Stephen Yocum, and Jane Yocum, wife of Milford Yocum, deceased, my sister, in equal parts.” :
The plaintiffs claim title as lineal heirs of the devisee, William Franklin Yocum; and defendants claim title under a deed of conveyance made by said William Franklin Yocum after his father’s death and the birth of legitimate children.
I will not enter into discussion of the questions raised in this case respecting the doctrine of estates of entail and in perpetuity, on which has been expended such a vast wealth of legal learning by the English and American courts, and to which the Supreme Court of this state, in Yocum v. Siler, 160 Mo. 281, 61 S. W. 208, discussing said provision of said will, and the respective counsel in this case in their briefs, have made such valuable contributions, much of which, however, is more academic than useful. Looking to the trend of legislation on this subject in this state, beginning in 1825, touching estates tail, and the state statute respecting the rule to be observed in the construction of wills, and guided by plain, common, practical sense, we are to answer the question, what did the testator intend in devising this land to his natural son, William Franklin Yocum? Evidently he wanted him to-have this land “absolutely,” to do with as he pleased, subject to but one contingency — that of the birth of legitimate children. Recasting, by transposition, the structure of said paragraph of the will according to its evident sense, it would read thus:
“To my beloved son, William Eranklin Yocum, my natural son, I bequeath [devise] absolutely, in the event he dies having legal issue, descendants, legitimate issue of his, the following lands [describing them]; but if he should die without having such issue then said lands shall pass to [the persons designated].” ,
When such issue was born to the son the contingency on which the absolute estate was dependent occurred, and thereupon the estate in the' son became complete in fee simple. Evidently, it seems to me, the testator had no other thought respecting the lineal heirs of the son than that their coming into existence should complete and seal the absolute estate of the son. He had no purpose to create in this “beloved natural son” a mere life estate in the event of legitimate children born to him, with the remainder in such children. To hold otherwise, with all due respect, would cut to shreds, upon the sharp edge of legal' technicalities, the wishes of the dead respecting the estate he desired the son, so near to his heart, to have when there should come into his life children, the offspring of lawful wedlock. Encouraging him against an example which perhaps had caused some anxiety in his own life, he made the absolute estate in the son to depend upon the birth of legitimate children. After the birth of such children, to limit the son’s interests to a mere life estate would be to read out of the granting part of the devise the word “absolutely,” and to import into the grant the customary apt words essential to the creation of an estate in remainder in the children.