This is a suit to construe the will of Willis G. Brinson brought by his executors. The will is as follows:
"This is my last will. I give, bequeath and devise to my legal heirs, who are as follows:
"My brother, Frank M. Brinson of St. Joseph, Missouri; my nephew Pete Hedgpeth of Rockport, Missouri; my niece, Mrs. Charles Criswell *Page 913 of Chickasha, Oklahoma; my niece, Mrs. Pearl Shaffer of St. Joseph, Missouri; my nephew, H.E. Myers of Bethlehem, Pennsylvania; my nephew, Marvin B.F. Myers of Wichita, Kansas; in complete and perfect ownership all my rights and property of every kind and nature, whether real or personal, wherever situated, appointing the First Trust Company of St. Joseph, Missouri, and Pete Hedgpeth of Rockport, Missouri, to serve without bond, executors of my estate, and giving them seisin thereof.
"My half brother, Leonard Lyon died in January 1892, leaving a son, Frank Lyon, whom I have not heard of for many years. I have no knowledge as to whether he is living or dead. If my nephew, Frank Lyon should be living, I bequeath to him the sum of Ten Dollars $10.00, to be paid out of my estate."
The testator died at the age of 72. He was a bachelor. The testator's mother had been twice married. The nieces and nephews mentioned in the will are by children of her first marriage so are in fact half nieces and half nephews of the testator. The testator and his brother, Frank M. Brinson, were born of the second marriage and were related by the full blood.
The testator and his brother had always been close. From boyhood they had worked together. They had been partners in business. Shortly after the partnership was dissolved the testator retired from business but made his brother's office his headquarters. The testator was also close to Pete Hedgpeth, his half nephew, who was named co-executor. He had kept in touch with his half nieces and nephews mentioned in the will with the exception of Frank Lyon. Frank Lyon had not been seen or heard of by the testator for some thirty-five years. Shortly before the testator's death word was received that Frank Lyon was coming to St. Joseph to visit but he and his wife were killed in an automobile accident while en route. They left three children who were not known to the testator. The testator left no heirs other than Frank Lyon's three children and those persons named in the will.
The issues raised on the trial were: (1) did those taking under the will take per stirpes or per capita; (2) did Frank Brinson, the brother, being a collateral [385] heir of the full blood, take a double share over an heir of the half blood; and (3) did the three children of Frank Lyon take under the will?
The trial court held that the estate should be distributed per capita to those named in the will and the three children of Frank Lyon should take nothing. Frank Brinson and Pete Hedgpeth have appealed. The three children of Frank Lyon have also appealed.
[5] If the will had merely stated: "I give, bequeath and devise to my legal heirs . . . in complete and perfect ownership all my rights and property of every kind and nature . . .", the questions raised would be of simple solution. The generally recognized *Page 914 rule of construction is that a gift to "heirs", whether it be the testator's heirs or to the heirs of a third person, in the absence of any expression showing a contrary intention designates not only the persons who are to take but also the manner and proportions in which they are to take, all of which is determined by the statutes of descents and distributions. Anno. 16 A.L.R. 33. This rule is followed in this State. Wooley v. Hays,285 Mo. 566, 226 S.W. 842. And see Preston v. Brant, 96 Mo. 552 (overruled on other grounds). Accordingly, if such was the will in this case, distribution would be per stirpes.
Records v. Fields, 155 Mo. 314, 55 S.W. 1021, is not pertinent here. In this case the will gives property "of every kind and nature, whether real or personal." The distribution between "heirs" in that decision was per capita because of the fact the bequest was personality. Furthermore, that decision is contrary to the present rule. Page on Wills, sec. 1078. It should no longer be followed.
On the other hand, if the will had left out the words "my legal heirs who are as follows" and had simply said: "I give, bequeath and devise to . . . my brother Frank M. Brinson . . ." and so on, listing the others by name, then the applicable doctrine would require distribution per capita. It is settled that where a bequest is made to several persons by name in general terms, the individuals will take the same share or per capita. If that was the case here, distribution would then be per capita.
In the argument for a per capita distribution, we are urged to follow the latter doctrine. To do so we would have to disregard entirely the words "my legal heirs, who are as follows" and hold that the testator intended his estate to go to the named persons individually. But we regard the statement in the will giving the estate "to my legal heirs" as the disposing one.
It might be argued that since the will was drawn by a layman the term "legal heirs" was not used in its strict legal sense. Where wills are drawn by unskilled persons the term heir is often used in a vague and inaccurate sense. Even so, the term heir, like other legal terms, when unexplained and uncontrolled by the context of the will, should be given its well-settled legal meaning. Still, the purport and scheme of the will as an entirety must be kept in view. Giving effect to the intention of the testator demands this. "We mean, of course, his intention as expressed. Not, What did he intend to say? but, What did he intend by what he did say? must be the test." Chater v. Carter,238 U.S. 572. "The primary meaning of `heirs' is the meaning which should be given to it when employed in a will in the absence of anything in the will or in the surrounding circumstances to suggest a different meaning." Page on Wills, sec. 1009; Irvine v. Ross, 339 Mo. 692, 98 S.W.2d 763.
There is nothing in the will before us to indicate that the term "legal heirs" was used in any way except in its usual sense unless *Page 915 we find it in the subsequent listing of the heirs by name. In other words, does the naming of the individual heirs indicate that the term "legal heirs" was used in some other than its usual sense? We say it was not because the will itself shows that the naming of the heirs was for the purpose of identification, viz: "to my legal heirs, who are as follows:" Furthermore, the testator did not intend to include all his heirs, as we will point out.
We conclude that the testator did not intend by the additional naming of his heirs that they should take equal shares as individuals. Giving effect to the testator's use of the term "legal heirs" (may not some significance attach to the use of "legal"?) in its well-settled meaning we hold that distribution per stirpes was intended.
Fully realizing the doubtful value of other will construction cases as precedents, [386] we find a somewhat similar provision in Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104. In that case the will gave the residue of the estate "to my full brothers and sisters, to wit: Ashby Wood, Benjamin Wood, Dyott Wood, Mary E. Runion and Sarah P. Burke, and their heirs . . ." This court construed this provision as a gift to a class overruling the contention that it was a gift to those named taking as individuals. In Rixey v. Stuckey, 129 Mo. 377, 31 S.W. 770, the will left the residue to "the children of my wife's nephew, Edward T. Jones of Virginia, one share . . . and the children of my sister, Achsah Settle, Joseph D. Settle, Jesse P. Settle, Charles Settle, Betty Styne; and Lucy Stuckey, children of my sister Achsah Settle, . . ." Interpreting this provision, this court held that the bequest was not made to the named children as individuals. We note that in neither of these cases was there any discussion about the naming of the individuals in addition to designating them as a class. For such discussion see Swallow v. Swallow, 166 Mass. 241, 44 N.E. 132; Hoppock v. Rucker, 59 N.Y. 202; Page v. Gilbert, 32 Hun (N.Y.) 301; Strauss v. Strauss,363 Ill. 442, 2 N.E.2d 699, 105 A.L.R. 1386; Walker v. First Trust Sav. Bank, 12 F.2d 896. The latter case is exhaustively annotated in 75 A.L.R. 773. At page 806 the annotator says: "But the fact that the members of the class are also mentioned by name is not conclusive; and, in general, the enumeration of beneficiaries is disregarded where it appears to be subordinate to the general description."
There is nothing else in the will itself nor do we find any evidence of surrounding circumstances which would indicate that a per capita distribution was intended. The testator's intention as to the manner of distribution must be deduced either from his use of the term "legal heirs" or from the fact he also mentioned the heirs individually by name; per stirpes from the former, per capita from the latter. As we have already indicated, it is our judgment that the former outweighs the latter. *Page 916
The fact that the known heirs are identified by name in the will so that recourse to the statutes of descents and distributions is not necessary for their determination should not bar us from resorting to such statutes to determine the manner of distribution. Take an opposite case. Suppose the will had left the estate "to my legal heirs, each heir to share equally" without naming the heirs. Could it be successfully argued that because it was necessary to resort to the statutes to determine the heirs that the statutes must also govern as to the manner of distribution in the face of a contrary expression in the will? We think not.
However, if there is any doubt about the testator's intention regarding the manner of distribution, as the opposing contentions indicate, then there is another rule which we think apposite. That is, whenever the testator's intention is in doubt, the statutes furnish a safe guide. Lyon v. Acker, 33 Conn. 222. Judge CARDOZO, discussing whether an estate left to the "next of kin" should be distributed per stirpes or per capita approved this rule. "We think a gift `to heirs' or `next of kin' is the same in meaning and effect as to `legal heirs' or `legal next of kin', and that one as much as the other, imports a reference to the statute." He went on to say that "the words `heirs' and `next of kin' take their color and connotation from the schedule of the statute."
"The rule thus emerges," he announced, "that in the absence of clear tokens of a contrary intention, the statute is to be taken as the standard of division. (Allen v. Boardman, 193 Mass. 284.) The acceptance of this formula supplies a test of simple application. A testator is still free, if he pleases, to direct division on other lines. Often it will happen that he has no intention one way or the other. At such times, a division according to the statute is more likely than any other to correspond with what he would have wished if the subject were one that he had thought about at all. `The Statute of Distribution governs in all cases where there is no will; and where there is one, and the testator's intention is in doubt, the statute is a safe guide.' (Lyon v. Acker, 33 Conn. 222, 223.)"
This rule is supported by the weight of authority. Anno. 16 A.L.R. 17. We approve and adopt it. For this additional reason, distribution under this will should be per stirpes.
[6] It is apparent that the testator believed it necessary expressly to mention his collateral heirs as in the case of a testator's children. Yet he intended only his known [387] and familiar heirs to take under his will, not all of his possible heirs. In making the general bequest he named all his known heirs. Then he made an exception. He cut off the one he had lost touch with. The will recites: "My half brother, Leonard Lyon, died in January, 1892, leaving a son, Frank Lyon, whom I have not heard of for many years. I have no knowledge as to whether he is living or dead. If my nephew, Frank Lyon should be *Page 917 living, I bequeath to him the sum of Ten Dollars $10.00, to be paid out of my estate." The evidence shows that the testator had not heard from Frank Lyon for a number of years. He did not even know if Frank Lyon was living. He had no knowledge of Frank Lyon's marriage. He did not know that Frank Lyon had children. His evident intention was to exclude the Frank Lyon branch of the family. This may well have been the impelling reason for the will. Giving effect to the testator's use of the term "legal heirs" and following the purport and scheme of the will we find the testator intended his estate to go to his heirs but only to those heirs who were known or familiar to him as identified in his will.
The three children of Frank Lyon contend that the will directs the estate to be distributed to all the heirs. Accordingly, they claim a share as such on the theory that the bequest of $10 to their father died with him under the terms of the will. The bequest was payable only "if my nephew, Frank Lyon, should be living." They concede that if the bequest had been unconditional, then under the anti-lapse statute (Sec. 528, R.S. 1939) they would have taken the ten dollars and no more. Their argument cannot stand in face of our finding that the will intended the estate to go to the known heirs only. The judgment of the trial court that the three children of Frank Lyon are not entitled to take under the will is proper.
In view of the conclusion we have reached, a new judgment must be entered construing the will as requiring distribution per stirpes to those named in the will (with the exception of Frank Lyon) in conformity with our statutes of descents and distributions. Sec. 306 et seq., R.S. 1939. These statutes are qualified by Sec. 309, R.S. 1939, which provides that collaterals of the half blood shall take only half as much as those of the whole blood. Therefore, Frank M. Brinson takes a double share. The children of Frank Lyon, as we have pointed out, take nothing.
Accordingly, the judgment should be reversed and the cause remanded with directions to proceed accordingly. Ellison, C.J., and Tipton, J., concur; Clark, J., concurs in part and dissents in part.