dissenting.
I respectfully dissent.
I share the concern expressed in Judge Higgins’ dissent that it is not the province of this Court “to make a will where none was intended.” Although courts eschew intestacy, no writing should be strained beyond reason merely to preserve it. The evidence found within the four corners of the challenged will compels the conclusion that the testators intended the entire will to operate only if both of them died in a common disaster. The principal opinion effectively rewrites the will under the guise of interpreting it.
The principal opinion in effect holds that the document contains three wills. Not only is there the will of both parties that is contingent upon the death of both in a common disaster, but there are also the individual wills of the two testators. This holding is at odds with the intent embodied in Item II, which states that the testators jointly owned all their property “of any kind and character” and that the document was executed to dispose of that property in the event the testators died in a common disaster. It is illogical for each testator to make his own, separate will knowing, and expressly stating, that if one dies and the other survives, all the property will pass to the survivor by operation of law. Especially is this true when, as here, all but one dollar of the estate is disposed of generally through the residuary clause.
The will manifests an unequivocal intent on the part of the testators to provide for Kathleen Konz and Louis Konz, the children of Cecile Greener’s adopted son, Lee James Konz. In Item III the testators left $5000 in trust for each of the children for the primary purpose of financing the children’s college education. By the standards of 1961, when the will was executed, $5000 was hardly a paltry sum. The strong concern for the children is further evidenced by the fact that the testators subsequently adopted the children as their own.1 The principal opinion’s construction of the will produces the anomalous result that the children, although clearly a concern foremost in *745the minds of the testators, receive nothing unless the testators die in a common disaster.2 If the entire will is contingent, however, the children are still provided for notwithstanding the intestacy. Cecile’s husband, John Greener, became the sole owner of all jointly held property upon Cecile’s death,3 and at John’s death Kathleen and Louis receive John’s entire estate as his adopted children.
The will also manifests a clear intent to disinherit Cecile’s adopted son, Lee, no doubt for reasons not unrelated to those underlying the testators’ adoption of Kathleen and Louis. The principal opinion makes much of this fact, arguing that
[i]t would ... be unusual, if Cecile did not want her son to have any part of her property, for her to make a will in which he would get only $1.00 if she and John were to die in a common disaster, but all her property if she were to survive John only to die herself in short order from a cause unrelated to his death.
That argument is unpersuasive, for it presupposes that if the entire will in question were contingent, Cecile would not have executed a new will disinheriting Lee had she survived her husband.4 That inference is sheer speculation. Cecile of course did not survive her husband, but it does not frustrate her intent to disinherit Lee if the entire will is construed as contingent. Lee is not an heir of John, and consequently he receives nothing from John through intestate succession.
The principal opinion produces a marked disparity between the bequests in the contingent and noncontingent portions of the will. First, as noted above, it is curious that the testators would have provided for Kathleen and Louis only in the event that the testators died in a common disaster. Second, there is a disparity between the contingent and noncontingent portions of the will among the bequests to C.E. Greener, John’s brother, and Marge Voss, Cecile’s sister. On the one hand, under Items IV and V, which are expressly contingent, C.E. receives $1200 and Marge receives Cecile’s jewelry, furs, clothing, and silver. On the other hand, there are no specific bequests to C.E. and Marge in the noncontingent portion of the will, but instead both receive one-third of the residual estate, and the Immaculate Conception Church of Springfield receives the other one-third, after one dollar is paid to Lee.5 It is indeed curious *746that the testators would have provided that C.E. and Marge receive specific bequests before the remainder of the estate is distributed in the event the testators died in a common disaster but would not have so provided in the event the contingency did not occur. Furthermore, the executor has the power “to immediately sell any real and personal property not specifically bequeathed ... and reduce the same to cash,” and thus if the contingency does not occur it is possible that the executor could sell Cecile’s personal effects and thereby deprive Marge of the items of sentimental value that Cecile obviously wanted her sister to have. When viewed in this regard, the principal opinion’s construction is wholly untenable.
The will in question is a hallmark of inartful draftsmanship. That fact, however, does not give this Court license to rewrite it. Read as a whole, the challenged will manifests the intent of the testators that the entire document be contingent upon the deaths of the testators in a common disaster. The principal opinion ignores that intent.
. The principal opinion argues that the subsequent adoption of Kathleen and Louis is a factor that may not be considered when construing the will. Yet “in arriving at [the testators’] intention the relation of the testator[s] to the beneficiaries named in the will and the circumstances surrounding [them] at the time of its execution are to be taken into consideration.” Ussher v. Mercantile Trust Co., 328 S.W.2d 699, 702 (Mo. 1959) (emphasis added). The adoption is the product of circumstances that apparently existed at the time the will was executed. As noted below, it no doubt was related to the testators’ reasons for disinheriting Lee, the children’s father and Cecile’s adopted son. Although the fact of adoption itself should have no bearing on the construction of the will, the circumstances underlying the adoption, insofar as they shed light on the testators’ intent, are clearly relevant and should be considered.
. This does not, nor should it, consider the effect of § 474.240(1), RSMo Supp.1982, which makes provision for pretermitted children. That section provides:
If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate, unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.
Under the facts of this case it is far from clear that this section would provide the children with a meritorious action against the estate.
. Item II of the will indicates that at the time the will was executed in 1961, John and Cecile owned jointly all their property “of any kind and character.” Nothing in the record indicates whether any after-acquired property was held otherwise. We can infer that it was not, because, as the principal opinion notes, “[t]he record shows no attempt to offer the will for probate as the will of Cecile, and no evidence that any administration was had on her estate.”
. If the will is construed as entirely contingent, Cecile could very well have executed another will had she survived John. Although joint wills may be construed as contracts between the parties that the survivor will not alter the will, had Cecile survived John the contingency upon which the will was based — that the testators die in a common disaster — would not have happened, and therefore the condition precedent to the contract would not have occurred.
. The record reflects that C.E. Greener predeceased both of the testators and left no lineal descendants. Thus, under the principal opinion, Marge and the church, parties to this case, each fortuitously receive one-half of the residual estate. See §§ 474.460, .465, RSMo Supp. 1982.