ON MOTION FOR REHEARING OR TO TRANSFER TO THE COURT EN BANC.
PER CURIAM :Respondents, residuary legatees under paragraph 12(d) of the will and also specific legatees under paragraph 4 thereof, have filed a motion for rehearing. They make no challenge as to the propriety of the opinion rendered in so far as it restates the law of this state pertaining to the effect of a stock split on a specific bequest of corporate stock. In fact, they tacitly concede that resolution of the legal question originally submitted was proper. However, they now ask that we modify the opinion so that six non-appealing specific legatees of the twenty-three so designated in paragraph 4 will be barred from taking according to the law as announced in the opinion; or, in other words, that the executor be directed, in fact, to follow the law in distribution to the seventeen but follow the erroneous opinion of the trial court as to the six. We are not inclined to require such an unjust result under the factual situation presented.
To sustain their argument for such an incongruous result, movants rely on the following authorities: People’s Bank of Glasgow v. Yager, 329 Mo. 767, 46 S.W.2d 585; In re Schemer’s Will, 215 Iowa 1101, 247 N.W. 532; In re Horner’s Will, 237 N.Y. 489, 143 N.E. 655; Succession of Manthey, 159 La. 743, 106 So. 289; and, 5B C.J.S. Appeal and Error § 1920, p. 414. The text authority, last cited, states as a general rule that, “Where less than all of several coparties appeal from an adverse judgment, it is generally held that a reversal as to the parties appealing does not necessitate or justify a reversal as to the parties not appealing, but that the judgment may or must be affirmed or left undisturbed as to them, according to the practice prevailing in the particular jurisdiction. * * * The rule that reversal on appeal by a party does not justify reversal in favor of nonappealing parties, however, is not invariable, and where the judgment is not severable, or where the rights and interests of the parties are so intermingled and interdependent that reversal in favor of one would injuriously affect the rights of his coparties, the court, if reversal is proper as to appellant, may reverse as to nonappealing parties.” (Emphasis added.) *89The same text in § 1835 also concludes that, “An appellate court generally possesses by virtue of inherent power and in some states by virtue of express statutory authority, broad powers and discretion with respect to the scope of its decision and the relief to be granted, and broadly speaking, any decision may be made in a case that its proper disposition requires.”
Thus, such general statements point up the inevitable conflict that must arise- between the reluctance of a court, whether it be on jurisdictional grounds or otherwise, to adjudicate rights affecting nonappealing parties and a comparable reluctance to fragmentize its judgments and decrees as to those of the same class whose basic rights are exactly the same. With the question so delineated, we look to the case authority cited.
In People’s Bank of Glasgow v. Yager, supra, this court considered a case wherein judgment on a note was obtained against two signers thereof. One appealed and one didn’t. After reversal of the judgment against the appealing party, the court considered the status of the nonappealing signer. Consideration was first given to the alternative possibilities shown in the quoted text, 5B C.J.S. Appeal and Error § 1920, p. 414, and no relief was extended to the nonappealing party. However, it is of interest that the court buttressed its decision by adding that, “The one defendant may have had a valid defense and the other not.” Clearly, the holding is not conclusive as to the instant question for the reason the instant case involves persons of one class with identical rights.
In the Iowa case, Scheiner’s Will, supra, the opinion by the court tends to sustain movant’s position. However, factually the case is distinguishable for the reason none of the class, two sisters, had appealed. Additionally, an Iowa case, more in point, is In Re Larson’s Estate, 256 Iowa 1392, 131 N.W.2d 503, wherein the court had before it an appeal by all but two persons of the “same class,” and the two derived the same benefit and declaration of rights as the appellants. Therein, it was said: “This has the effect of allowing more to the two Johnson children than allowed them by the trial court. Ordinarily one who has not appealed is not entitled to a more favorable decision here. * * * However, a generally recognized exception is applicable here where the relief granted has been asked by appellant throughout the case, the rights of such appellees are necessarily involved, and to deny such would result in injustice.”
In the Louisiana case, Succession of Manthey, supra, the court found it proper to follow the general rule previously quoted.
The recognized difficulty of determining when the general rule or its established exceptions are to be followed is apparent in decisions of other states. For instance, in New York the general rule was followed in In Re Horner’s Will, 237 N.Y. 489, 143 N.E. 655, 660, but not in the later case of In Re Winburn’s Will, 270 N.Y. 196, 200 N.E. 784, wherein the court reviewed the basic problem, to wit: “In the prevailing opinion in the St. John Case [St. John v. Andrews Institute for Girls], 192 N.Y. 382, at page 389, 85 N.E. 143, 145, occurs the statement: ‘The great stumbling block in this case seems to be the apparent, if not real, incongruity of the result arrived at; that is to say, that a distribution will be made in favor of four of a certain class of defendants, which is denied to two others of the class, whose rights are exactly the same.’ In Croker v. Williamson, 208 N. Y. 480, 484, 102 N.E. 588, 589, this court stated this rule: ‘It is clear both upon reason and authority that no such anomalous result could be tolerated as that of a judgment declaring a will invalid on general grounds as to part of the legatees and valid as to others. [Citing authorities.] Thus it appears that in the face of an action involving the general validity of a will and of the probate thereof, the interests of legatees are so tied together that they cannot be separated and that a judgment re*90jecting or upholding the will as to one legatee will similarly affect the others. Their interests under thé will must stand or fall together, and it would seem to be pretty clear that they are, therefore, “united.” ’ The same thought had previously been expressed in Altman v. Hofeller, 152 N.Y. 498, 506, 46 N.E. 961, 964, wherein it is written: ‘Our attention, however, has been called to no authority which sustains the doctrine that where there is error which requires a reversal, the judgment can be properly reversed and a new trial granted as to some of the defendants and affirmed as to others, unless in a case where their interests and the issues between them are so far separate that upon a new trial the issues between the plaintiff and the defendants as to which it is affirmed will not be involved or determined; so that there cannot be two different and inconsistent judgments upon the same issue in the action.’ ”
Again, in California, the court said in In Re Stauffer’s Estate, 142 Cal.App.2d 35, 297 P.2d 1029, at 1. c. 1034: “It should further be noted that the conclusion we have reached concerning the construction of the residuary clause will redound to the benefit of Jessie Snyder who did not appeal as well as Gladys Wollenberg who did, under the rule enunciated in the case of Blache v. Blache, 37 Cal.2d 531, at page 538, 233 P.2d 547, at page 551, wherein the court expressly held: ‘It is true that there are cases which hold that a judgment becomes final as against a non-appealing party even though the judgment is reversed on the appeal of other parties. [Citing cases.] But this rule is not applied where portions of a judgment adverse to a nonappealing party are so interwoven with the whole that appeal from a part affects the other parts; in such a situation the appellate court can reverse the entire judgment if it is necessary to do justice.’ ”
Perhaps of greater interest is the Missouri case of Lich v. Lich, 158 Mo.App. 400, 138 S.W. 558, wherein the court said, 1. c. 565: “While the widow did not appeal, the trustee by appeal has brought up the whole will for our construction. We must construe it irrespective of the action of the trial court. No agreement of parties as to a matter of law can conclude this or any court.”
An extended review of related problems in tort cases may be found in Hardwick v. Kansas City Gas Co., 355 Mo. 100, 195 S.W.2d 504.
In- conclusion, we have determined, under the facts of this case, that justice calls for application of one of the exceptions to the general rule. The probate court correctly applied the law of this state in directing the executor to distribute the additional shares to the named twenty-three specific legatees in paragraph 4. The trial court erroneously directed otherwise. Seventeen of the twenty-three appealed to this court and they submitted only one issue, i. e., how should the shares be distributed to those of the one class listed in paragraph 4? We have now ruled that the probate court was correct in its ruling, and we need not complicate an already difficult problem by considering the status of that order after a contrary ruling by the circuit court at a trial de novo. It is sufficient to say that this court should not issue two different and inconsistent judgments upon the one issue in this case. Doing otherwise would order, as a practical matter, the executor to follow the law as to some of a class but to disregard it as to others of the same class. The established exceptions to the general rule call for avoidance of such anomalous orders. That exception is applicable here, as noted above, “where the judgment is non-severable.” As a reading of the quoted text makes clear, the non-severability of the judgment on one issue is an exception standing on its own feet. The second exception — where the rights of the parties are intermingled — need not be discussed, as it has no bearing on the first exception on which this ruling may soundly rest.
The motion is denied.