In the year 1880, Louis Bernero and his wife, Theresa, who were childless, went to Italy to visit his two brothers. He induced his brother, Augustino, who had eleven children, to let him have the youngest child, Manuello, three years of age, whom he and his wife agreed to adopt and bring up as their own child. After the death of Louis Bernero in 1904, the widow consulted an attorney who advised her to execute a deed of adoption. Mrs. Bernero insisted that there was no need of that because Manuello was the son of Louis, that Louis had adopted him in the old country. The attorney advised that as there was no record of theStatement. adoption here she had better have the deed. She accordingly executed a deed adopting Manuello as her son, which recited that she and her husband, Louis Bernero, adopted him in Italy in 1880 when he was three years of age, and brought him to their home in St. Louis; that he has ever since been educated and supported by them and lived with them as their legally adopted son and been so recognized by them, and has done *Page 631 and performed all the duties of a child. This deed executed in proper form April 10, 1905, was duly signed, acknowledged and sworn to by Theresa and Manuello, and recorded.
Every circumstance in the case indicates that Louis and Theresa Bernero received this child from his parents on a sacred trust, with feelings akin to the emotions that stirred the soul of Jochebed, the "Hebrew nurse," when she received from the Egyptian princess her own child with the injunction, "Take this child away and nurse it for me and I will give thee thy wages. And the woman took the child and nursed it."
The record shows that Louis Bernero loved Manuello as his own son. One of Bernero's intimate acquaintances testified: "One time I talked to him; Mr. Bernero, what are you going to do when you got lots of money? You give some to Vincent and David and Tony Bernero (brothers of Manuello)? He says, No, I got Mannie; he is my son." Mr. Ghio, formerly a partner of Louis Bernero, testified: "About Manuello, he (Bernero) told me when he got hurt one time; he got kicked in the baseball or football, I believe. He said my son got kicked yesterday and I guess he is going to die, and he was crying; yes, sir." It seems that Manuello's death was the result of this injury.
I. The contention in this case is over the construction of paragraph 5 of the will. It disposed of real estate now estimated to be of the value of nearly $500,000. This paragraph falls naturally into two clauses. Clause 1 reads:
"I give and devise unto my beloved wife, (description) to have and enjoy for and during the term of her natural life, and at the time of her death the the same to pass to our adoptedWill: son, Manuello Bernero, if he shall survive her, toTestator's have and enjoy during his natural life, and at hisIntention. decease to pass to and vest in fee in his children, if any he have, or their descendents, but in default or failure of such *Page 632 direct heirs, children or grandchildren him surviving, then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs."
Clause 2, including the words in parenthesis supplied, reads:
"If, however, my said wife shall survive said Manuello, (and he leave no issue) then she, said Theresa Bernero, is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testamentary disposition of same, then said realty, upon her death, shall vest in my right heirs, if she shall survive said Manuello; I authorize and empower my said wife during her lifetime, and if said Manuello shall survive her and enter upon the enjoyment of said realty, then said Manuello, during his lifetime, to lease said realty thus bequeathed to them for life as aforesaid, successively, on such terms as they severally deem proper, each exercising such right during her or his life tenancy, for leasehold periods not exceeding twenty-five (25) years each."
Paragraph 7 devises substantially the residue of the estate, one-half of it in value, to his wife, Theresa.
By the first clause of paragraph 5, Louis Bernero plainly provided that Theresa, then well advanced in years, and his son Manuello should each have a life estate in the property; that Manuello's enjoyment of his life estate should be postponed until her death. At Manuello's death the remainder was to vest in fee in his children, "if he have any, or their descendents, but in default or failure of such direct heirs, children or grandchildren, him surviving, then at the time of his death" the fee was to vest in the right heirs of the testator. If Manuello had children, the remainder was to vest in them unconditionally at his death. If he had none, then it was to vest in the right heirs of Louis Bernero unconditionally.
If the doctrine of the majority opinion be sound, that Manuello's children should take the remainder only on the contingency that he survived Theresa, then it *Page 633 follows that in the event he left no issue, testator's right heirs would take nothing under the will.
This theory of construction is irrational and does not accord with human experience. It was advanced in the case of RoBards v. Brown, 167 Mo. 447. George Brown, the testator, had three sons and one daughter, all married. He bequeathed one dollar to each of them. By the next clause he devised all of his real and personal property to his wife during her life or as long as she remained single, and added this express provision: "In the event my wife should not be living at my death, then in that event, I will that all my property, real and personal, be distributed as follows: To my daughter, Mary B. White; to my daughter-in-law, Mary V. Brown, wife of my son J. Van Brown; to my daughter-in-law, Delia A. Brown, wife of my son John J. Brown; and to my son, William G. Brown, each an undivided one-fourth part of my personal and real estate." The testator's wife survived him. The two sons, J. Van and John J., were insolvent. After the death of the testator, plaintiff bought the interest of John J. in the real estate devised at sheriff's sale. He contended that by the plain, positive terms of the will, the wife of John J. took nothing under the will because the testator's wife survived him. The court said:
"This construction must therefore be discarded and rejected, if any other construction is possible.
"The intention of the testator was plainly this; first, to prevent his sons' creditors reaching or sharing in his property; second, to provide for his wife for life, if she survived him and remained single; third, after his wife's death, whether before or after his will took effect, to provide for his children and their families, and to do it in such a manner as to exclude his sons' creditors from participating in any of his estate.
"This intention being plain, the only question remaining is, has the testator expressed it in such manner as not to vitiate his intention by using words and terms that violate some inflexible rule of law? It is argued that *Page 634 the words: `In the event my wife be not living at the time of my death,' etc., have this effect. Those words are wholly superfluous and meaningless, and the estates created by the will would be exactly the same and would take effect at exactly the same time, and upon the same contingencies if no such words were in the will. Thus a life estate was devised to the wife. If she survived her husband, that estate would take effect at his death, and continue during her life, and the fee-simple estate in remainder would not vest in the children or devisees until the termination of the life estate. On the other hand, if the wife died before the testator, the life estate to her could never vest, and the fee-simple remainder would take effect at once. Hence, the words, `In the event my wife should not be living at my death,' etc., provide for no contingency that is not fully provided for by law, and, therefore, those words serve no purpose whatever and should be discarded.
"Neither do those words create a condition upon which the remainder in fee is to become operative. They are properly only words descriptive of when and not upon what condition the remainder in fee is to vest, which, as shown, is exactly what the law is without such words. [Skipwith v. Cabell, 19 Grattan, 758.]"
Let us again look at clause 1 of paragraph 5 — "and at the time of her death the same to pass to our adopted son, Manuello Bernero, if he shall survive her, to have and enjoy during his natural life and at his decease to pass to and vest in fee in his children."
The intention of the testator is to avoid the vesting of a joint life estate in his widow and son and to make this clear he postpones the enjoyment of Manuello's life estate until his widow's death. The vesting of the remainder in Manuello's children is not conditioned on the contingency that Manuello should survive Theresa. That is not the condition upon which the disposition is to become operative, but the time when it is to become effective. *Page 635
In Skipwith v. Cabell, 19 Grattan (Va.) 758, a codicil read: "In case of a sudden and unexpected death, I give the remainder of my property," etc. The testatrix did not die either suddenly or unexpectedly. Held that this was not a conditional legacy, dependent upon the sudden or unexpected death of the testatrix. Such an expression could not properly be construed as creating a condition unless accompanied by other language so clear as to admit of no other interpretation. (784)
The rule is that where a devise is limited to take effect on a condition annexed to a preceding estate, if the preceding estate should never arise, the remainder over will, nevertheless, take place, the first estate being considered only as a preceding limitation and not as a preceding condition to give effect to a subsequent limitation. The death of Manuello before that of Theresa had no other effect on the title of plaintiff than to remove one preceding life estate between his vested remainder and possession. [1 Fearne on Rem. 510, 517; U.S. Trust Co. v. Hogencamp, 191 N.Y. 281; Ege v. Hering, 108 Md. 391.]
Abbott v. Middleton, 21 Beavan, 143, decided by Sir John Romilly as Master of the Rolls, and on appeal to the House of Lords in 7 House of Lords Cases, 68, is directly in point. The will involved in that case gave the widow of the testator a life interest in certain funds, just as the will in the present instance gave a life estate to Theresa Bernero, and then it made the following provision concerning those funds:
"And on her decease, the sums provided and set apart for such payment to become the property of my son George Carpenter (now Captain in his Majesty's 41st Regiment of Foot), so far as he, the said George Carpenter, my son, shall receive the interest on such sum during his life, and on his demise, the principal sum to become the property of any child or children he may leave, born in lawful wedlock, and in such sums as my said son shall will and direct. But in case of my son dying before his mother, then, and in that case, the principal *Page 636 sum to be divided between the children of my daughters, (naming them) in equal portions to each."
The Master of the Rolls held that the provision, "In case of my son dying before his mother, then and in that case the principal sum to be divided between the children of my daughters, (naming them) in equal portions to each" should be construed as meaning that that disposition should be made in case the son died before his mother without issue; in effect, the words "without issue" were supplied by implication. The Master of the Rolls said:
"In the second branch of the sentence, the testator proceeds to give the property over, if the son died before his mother. If the meaning of this be that the gift over is (to) take effect whether the son leave children or not, merely because he predeceases his mother, it appears to me to be in a great degree inconsistent with and repugnant to the gift to the children of the son. I am at a loss to conceive, upon what principle the testator could have meant this bounty toward his grandchildren to depend upon the circumstances whether their father survived his mother or not. A bequest to grandchildren if their father survived his mother, but nothing to them if he did not, seems absurd, inconsistent and repugnant to itself, unless explained and made rational by some peculiar extrinsic circumstances, none of which exist in this case. To impute such an intention to the testator seems to me to be what the court will not do, unless the words and the authorities are too strong to be overcome."
The Lord Chancellor and Lord ST. LEONARDS reached a similar conclusion when the case came before the House of Lords. The Lord Chancellor characterized the bequest as expressed "capricious and irrational." [7 House of Lords Cases, l.c. 87.] He declared,ibid, p. 81;
"It is impossible to entertain any moral doubt of the testator's intention, and there is, therefore, great danger of the mind being strongly and improperly influenced by this consideration. But disclaiming all right to act upon any conjectural interpretation, I have arrived *Page 637 at a satisfactory conclusion that in the will itself there can be found an ample justification for the decree which has been pronounced."
Lord ST. LEONARDS said, ibid, page 95:
"Now if I were asked, morally speaking, what the intention of the testator was, I cannot have the slightest doubt about it. . . . The property is actually given without any doubt or ambiguity to the son's children, so that if it is to be taken away from the children, we must find clear words to effect that object."
Lord ST. LEONARDS further said, ibid, page 96:
"Now there is one important observation in this case. There is no contingency expressed or implied upon which the property is given to the children. There is no contingency in the gift itself to the children. There is no exclusion of the children upon the happening of a contingency upon which the property is given over."
On page 101, he repeats this thought, as follows:
"And then comes in that important observation, as I consider, which I have already made, that in the gift to the children of the son there is no contingency expressed, and in the gift over of that property upon the contingency of the wife surviving the son, there is no exclusion whatever referred to of the children. I find, therefore, the property remaining in the children, and in my apprehension clearly unaffected (speaking still of intention) by the gift over."
Two of the Justices, while practically, if not actually, conceding that the testator never could have intended that which his words expressed, yet felt themselves unable to construe the will according to that apparent intention. Lord Wensleydale said:
"Nothing can be more reasonable than to suppose that he meant in this case to provide that his son's children, after their father's death, should take the property bequeathed to their father for life, whether he died in his mother's lifetime or afterwards. . . .
"My advice, therefore, to your Lordships would be to reverse the decree of the Master of the Rolls. If that *Page 638 should not be the result, I can only say that I am glad, because I believe that it was a mistake on the part of the testator." [7 House of Lords Cases, pp. 113 and 120.]
But our statute, Section 555, Revised Statutes 1919, commands us to have due respect to the true intent and meaning of the testator.
It will be seen that the Abbott and RoBards cases are in accord. Indeed, the RoBard case seems to be stronger for appellant in this, that the devise in that case was conditioned expressly, and not by implication, upon his wife being dead when the will took effect and that as his wife was alive when he died, the devise to the children failed and therefore only the devise to the widow remained and the fee descended to his heirs, subject to the life estate. [167 Mo. l.c. 459.] But this court held that those words did not create a condition but were only descriptive of the time when the remainder in fee is to vest. That is the general rule as has been seen from citations supra.
Bernero's will says, expressly, "at his decease to pass to and vest in fee in his children, but in default of such direct heirs at the time of his death, the title . . . shall . . . vest in my right heirs." In view of this plain provision, whether Manuello was "in or out of the body" when Theresa died seems to be wholly irrelevant. Of course Manuello's life estate fell in at his death, but to say that it was the clear intention of the testator to disinherit not only his own grandchildren but, in default of grandchildren, that he also intended to cut off his own brothers and sisters in the event Theresa survived Manuello, contravenes not only the established rules of construction which made it a limitation and not a condition, but the strong presumption founded on human experience (which accords with the ordinances of God and man), that he did not intend to cut off his own flesh and blood and leave his estate to strangers. [40 Cyc. 1412.] Such conclusion is allowable only when the rules of construction will not permit another. The will clearly shows that Manuello's children were the first objects of the testator's affection, and that, in default of such children he naturally *Page 639 turned to his brothers and sisters. "If the disposition violates all natural laws, justice and humanity, juries and courts will resot even to technicalities to prevent a great wrong." [Bowman v. Phillips, 47 Ind. 341.]
II. The next provision of the will is, "If, however, my said wife shall survive Manuello, then she is empowered," etc. It is claimed this clause was clearly intended to disinherit the testator's grandchildren and his brothers andInterpolating sisters as well, if Theresa survived Manuello,Words. with or without issue.
If these clauses are read literally, there is a clear repugancy. We must read this will from the viewpoint and environment of the testator and harmonize it consistently, if that may be done, with the testator's intention. Courts assume that a testator, dictating a will under the influence of family relations, will seldom intentionally cut off the issue of a son or daughter for the benefit of strangers, without some good reason therefor.
What was there, if anything, that turned the testator's affections awry and led him to disinherit Manuello's children and give his property to strangers, as respondents contend? We can find nothing in the record. Evidently the power of appointment was to be exercised only in the event Manuello left no issue. The dominant purpose of Bernero, however bunglingly expressed it may have been, was to provide a life estate for his widow and, subject to that, a life estate for his son with remainder in fee to his son's children, if he had any, but, in default of issue, to leave the property to his brothers and sisters.
We have another clear illustration of the rule of supplying, transposing and substituting words when necessary to harmonize the will with reason and common sense, in Nichols v. Boswell,103 Mo. 151. The will contained the following provisions: 1. One dollar each to two grandchildren. 2. A devise of all real estate to testator's granddaughter, Minerva Nichols (daughter of a deceased daughter, Permelia Hudson), and the testator's two daughters, Mary Boswell and Amanda Hudson, share and share alike. 3. A further devise reading as follows: *Page 640
"I further will, that in case the above-named Minerva Nichols and Amanda Hudson, or either of them, should be dead and not now living, then all of my estate, both real and personal, I give and devise and bequeath to my daughter Mary, wife of John Boswell. . . . "
Amanda Hudson died before the testator, and it therefore clearly followed from the above quoted third provision, taken literally, that the daughter, Mary Boswell, was entitled to the entire estate; for that provision specifically stated that, if either Minerva Nichols or Amanda Hudson should be dead, then all of the estate was to pass to Mary, to have and to hold, to her and her heirs forever. The court said (pp. 157-158):
"There is no uncertainty about these bequests. They are unequivocal and absolute, without condition or qualification. The division of the property and the provisions for the proper and natural objects of his bounty, thus made, were just and equitable, such as might have been expected from a parent who wished to show no partiality or preference among his children or their descendants. . . .
When he comes to make a third clause, had his intention changed, and did he intend thereby that, if his daughter Amanda was not living, his grandchild who was first named, who was apparently first in his thoughts and affections, should be disinherited? There was no such connection between plaintiff and Amanda, as could raise even a suspicion that their interests should stand or fall together."
To accomplish what it found to be the intention of the testator, the Court supplied or interpolated in the third paragraph of the will the words "undisposed of" so as to vest in his daughter Mary only "all my estate, both real and personal, undisposed of," and in doing this the court said (p. 160):
"This supplying of words to effectuate the manifest intention is allowable under the well-known rule, `that in the construction of a will the intention of the testator, apparent in the will itself, must govern, and that *Page 641 in order to effectuate that intention, as collected from the context, words may, when necessary, be supplied, transposed or changed. And it is no objection to supplying the omission, that different persons may differ in regard to which of two or more words, of similar significance, will more appropriately supply the omissions.'
The proof from the whole will and from the condition of the parties, their relation to each other, and the character of the property, is manifest and convincing, that these or similar words were inadvertently omitted from the will.
The evidence introduced for the purpose of showing the situation of the parties was proper, and there was no error in admitting it. In the construction of ambiguous or conflicting provisions the situation of the parties may very properly be taken into view."
In Grace v. Perry, 197 Mo. 550, a clause in the will reads: "But should both of my children die without issue of their body, then my grand nephew, Charles F. Loker, shall inherit all my property." It was held to provide for a devolution of those shares in case of the death of the children or either of them. Held, also, that in construing wills all technical rules of construction must give way, and, in arriving at the intention, the relation of the testator to the beneficiaries and the circumstances surrounding him at the time of the execution of the will should be considered and the will read from his viewpoint.
In Briant v. Garrison, 150 Mo. 655, the testator gave all of the land east of the center line running north and south between sections 8 and 17, and gave the remainder of his property to his brothers and sisters. A literal reading of this clause disinherited those who were first in the affections of the testator, and gave all the property to his brothers and sisters. The court substituted the word "through" for "between." The judgment was affirmed, citing many cases. [See page 668.]
In McMahan v. Hubbard, 217 Mo. 624, it was found from a consideration of all the circumstances that the description *Page 642 of the land devised to a daughter and an adopted son was erroneous and the judgment of the trial court correcting it was affirmed.
In Wells v. Wells, 279 Mo. 57, l.c. 64, words omitted in the sheriff's return were supplied to sustain a judgment by default.
In Dulaney v. Dulaney, 79 S.W. 195, the will provided that the testator's grandson, Woodford, should receive the income from his part of the estate until he was twenty-five years of age. "If he should die before twenty-five, one-third of his income is to go to his mother if she remains unmarried. If she marries, one-sixth. . . . The rest to be divided between the heirs living and heirs of any deceased." The court said, following Abbott v. Middleton:
"There can be no reason for supposing that the testatrix ever had such an absurd purpose as to disinherit Woodford's children, if he died before he was 25 years old, but if he managed to live until after he was 25, they were to have all his property upon his dying intestate. . . . Therefore, to carry out testatrix's intention, there should be read into this clause the words `without issue' so that the sentence would read: `If he should die before he is 25, without issue, one-third of his income is to go to his mother,' etc."
The words "without issue" were also supplied by the court in the case of Selden v. King, 2 Call 74, which contained the following provisions:
"Item: It is my further will and pleasure that if the child should die wherewith my wife now goes withall then I give and bequeath unto my said dear and loving wife Mary Achilly, and her heirs forever, all my lands, houses, . . . chattels movable and immovable, also all my debts that is due, owing and belonging to me in this county or in any other part or place whatsoever."
The court, in concluding its discussion of the matter, at page 91, said:
"According to which idea, the true construction is, that the testator by the latter words `if the child should *Page 643 die,' referred to the preceding devise to the daughter in tail, and meant to add the words, `without heirs of her body,' but inadvertently omitted them. Therefore, in order to fulfill his intention, and carry the dispositions, he was making, into effect, it is necessary to supply those words: And then, upon the death of the daughter without issue, the remainder in fee took effect in possesion in the wife."
The same result was reached in the case of Liston v. Jenkins,2 W. Va. 62, where the devise was as follows:
"Thirdly, the lands which I now live on, exclusive of that which I have bequeathed to my son, Jonathon Jenkins, I give and bequeath to John, my son, Jonathon Jenkins, I give and bequeath to John, my son-in-law, and Rebecca Smith, my daughter, after my wife's decease, fully to be possessed and enjoyed by them during their natural lives, and after their decease, the said land to fall to their son, John Jenkins Smith, and in case of his death, the land is (to) fall to the rest of John Smith and Rebecca Smith's children."
It was held by the court that to effectuate the intention of the testator, the words "without issue living at his death" should be supplied after the words "and in case of his death." so that the provision would read: "And in case of his death without issue living at his death, the land is," etc. (l.c. 65.)
In Young v. Harkleroad, 166 Ill. 318, the words "without such heirs" were supplied after the words "in case of the death of either one" in the latter portion of a devise reading as follows:
"6th. It is my will and I do hereby bequeath (described) to my sons, William and Isaac, and to my daughter, Florence, and to my granddaughter, Annie B. Kinder, during their natural lives, and after their decease to the heirs of their bodies (excepting only the heir now living of Annie B. Kinder, who shall not receive any portion whatever above that set apart and heretofore mentioned), and in case of the death of either one, then their portion to descend and belong to the heirs of the other persons mentioned in this section, in equal portions." *Page 644
In that case the court said:
"The testator in this clause bequeathed his real estate to his children and grandchildren `during their natural lives, and after their decease to the heirs of their bodies.' Thus far his meaning is clear and plain. But the remaining portion of the sentence, `and in case of the death of either one, then their portion to descend and belong to the heirs of the other persons mentioned in this section,' taken literally, directly contradicts what has just been said. . . . It is apparent that the sentence, as it stands, does not literally express the testator's intention. We . . . think that provision is understood, by implication, to mean `in case of the death of either one without such heirs, then their portion to descend and belong to the heirs of the other persons, etc. Under this construction there is no necessity of rejecting any part of the will, nor of adding anything thereto, the words `without such heirs' being plainly inferred. The defect in the language is simply a verbal omission, and being so, the true meaning of the clause may be implied, `in order to reach the obvious intent of the testator.'" (l.c. 323-325.)
In Nelson v. Combs, 18 N.J.L. (3 Harr.) 27, the court supplied the words, "under age and without lawful issue," after the word "die" in a clause in a will reading as follows:
"And further, it is my will, that if William or Thomas should die, or either of them, the remainder to enjoy the other's property."
In that case, FORD, J., said:
"But they" (referring to William and Thomas) "being both young and liable to die under age, and without lawful issue, he meant to provide for such an event by adding `that if either of them die, the survivor shall enjoy the other's property. `evidently meaning, die under age, and without lawful issue. If they should leave any issue, he had before given it to such issue by the name of heirs; he never intended to take it from such issue, by giving both shares to the survivor, thus making him a double portion, and leaving the bereaved children of the deceased son *Page 645 destitute of the very support he had so carefully provided for them by the name of heirs. It is contrary to the justice of all his other provisions to suppose it. Being unlearned, he left out the words under age and without lawful issue, by mistake." (l.c. 37.)
The will involved in Baker v. Estate of McLeod, 79 Wis. 534, gave the entire estate to the executor in trust, and directed the executor to remain in possession until the testator's daughter, Annie May McLeod, should attain the age of 21 years, when the estate was to be transferred to her. It further provided as follows: "But if the said Annie May McLeod shall die under the age of 21 years, then all my aforesaid estate, or proceeds thereof, with the rents, . . . shall immediately after her death be paid, applied and disposed of in the manner following" (the will then provided for other disposition). The court held that, notwithstanding that the will provided clearly for the disposition over in case the testator's daughter died before attaining the age of 21, it should be construed as meaning that this disposition should become effective only if the daughter died before that age, and left no issue. The opinion cites in support of this view, Abbott v. Middleton, supra; Liston v. Jenkins, supra, and Nelson v. Combs, supra, and proceeds upon the ground that "it may safely be assumed that, where a will is dictated under the influence of family relations, it would seldom happen that a testator would intentionally cut off the issue of a son or daughter from taking the share of the parent in his estate for the benefit of collateral objects." (p. 545.)
In Ball v. Phelan, 94 Miss. 293, 49 So. 956, the Supreme Court of Mississippi said:
"The court may assume that testator dictating the will under the influence of family relations, will seldom intentionally cut off the issue of a son or daughter from taking the share of the parent for the benefit of collateral objects.
"Where a will necessarily confines the interest of a child of testator to his life, the court may lay hold of slight circumstances to raise a gift in the issue of such *Page 646 child, and thereby avoid imputing to the testator the intention of giving the property to the devisee over, and leaving the issue of the life tenant unprovided for."
The Court of Appeals of New York held in The Matter of the Estate of Brown, 93 N.Y. 295 (as appears from the syllabus in the case), as follows:
"Where a will is capable of two constructions, one of which will exclude the issue of a deceased child, and the other permit such issue to participate in a remainder, limited upon a life estate given to a parent of the child, the latter construction should be adopted."
The same court said, in March v. March, 186 N.Y. l.c. 103:
"In ascertaining such intention we are required to take into consideration the surrounding circumstances under which he framed the provisions of the will, the situation of his estate, and of the members of his family whom he wished to be the recipients of his bounty. In considering these circumstances for the purpose of ascertaining the intention of the testator, there is a presumption which we must bear in mind, and that is, that, in the absence of unfriendly relations existing between testators and their descendants, there almost invariably exists a desire and an intention . . . that their property should go to their descendants, rather than to strangers to their blood."
Abbott v. Middleton, on the point in question, has been expressly followed in Metcalf v. Framingham Parish, 128 Mass. l.c. 374, and Sanger v. Bourke, 209 Mass. 481, l.c. 487-488.
III. The first clause of paragraph 5 gives the remainder in fee to the children of Manuello. That is clearly settled by RoBards v. Brown, supra. The second clause takes it away and gives the wife of the testator, if she shall survive Manuello, no beneficial interest is the property, but the bareInconsistent power of appointment. The testator could not haveClauses. intended that both clauses, as written should be operative. It is a cardinal rule of construction that where there is a clear *Page 647 gift in one clause of a will, it cannot be cut down or limited by a subsequent clause unless it is as clear and decisive as the language of the clause which devises it. [Cornet v. Cornet, 248 Mo. l.c. 224, 154 S.W. 121; Thornbrough v. Craven, 225 S.W. 445, l.c. 447.] There can be no presumption that Louis Bernero intended to give the remainder to Manuello and in the next breath to take it away from him. There is evidently an ellipsis. We have cited a number of cases where the courts have not hesitated to harmonize similar inconsistencies by supplying the words "without issue." If the words suggested be supplied, both clauses will harmonize and be consistent. We think this should be done. In doing this we are not making a new will. The supplied words will clearly effectuate the intention of the testator.
There are other questions discussed in the briefs but we think it unnecessary to go into them. This case was originally assigned, in Division One, to SMALL, C., whose very able opinion reversing the judgment and remanding the cause was concurred in by BROWN and RAGLAND, CC.
The judgment should be reversed and the cause remanded with directions to enter judgment for the plaintiff and against the defendants in accordance with this opinion. Woodson, J., concurs.