*350CONCURRING OPINION.
Marshall, J.I concur in the holding that the judgment of the circuit court should be reversed, and the.cause remanded with directions to overrule the demurrer and cause an issue to be made up and tried. But I place my concurrence upon the ground that Fannie E. Durrell, Anna M. Weems, and R. F. Alderson, children of Benjamin A. Alderson, deceased, are persons interested in the probate of the will. I think the circuit court erred in overruling the demurrer and in holding that they take the same interest under the will that they would have received if there had been no will. Under the will the widow is bequeathed absolutely all the furniture, bedding, carpets, stoves, pictures and kitchen utensils, and a life estate in the home place or residence and the lots connected therewith. Without the will the property would have descended to the heirs, subject only to the widow’s allowance, quarantine and homestead rights. For this difference in their rights I think the three heirs, who are plaintiffs, have a right to contest the validity of the will.
I do not agree to so much of the opinion as holds that Mary A. Watson, a judgment creditor of William A. Alderson, and David P. Alderson is a person interested in the probate of the will, within the meaning of section 8888, R. S. Mo. 1889, so as to entitle her to maintain this action. In my opinion there is no difference in principle between the rights of a judgment creditor and those of a general creditor in this regard. The only difference between them is the procedure necessary to reach the interest descended to the debtor heirs. The judgment creditor can proceed at law, by having an execution, presently, issued and the heir’s interest seized and sold, while the general creditor can proceed at once”, in equity, and be subrogated to the *351heir’s rights. But neither can reach anything as long as the will stands because the heir is cut off by the will and they can only come in under the heir.
Without our statute of descents, or the common law on that subject, a child would have no right to any portion of the estate' owned by the father at the time of his death, and without the statute of wills no man would have a right to direct the disposition of his property after his death. The first was intended for the peculiar benefit of the heir, not of a creditor of the heir. The second was to enable him who had earned or acquired property to dispose of it as to him seemed best, and the interest of the heir was not a controlling factor in the adoption of the law, but being in derogation of the rights of the heir under the statute of descents, he was given the right to contest the will to the end that he might take as heir and not as legatee. In my judgment the legislature intended this to be a right personal to the heir, and not to confer any rights upon a creditor of the heir.
The fact that this is the first case of this character that has reached this court under this statute of wills, which has been a law ever since Missouri was a territory, is persuasive that the concensus of opinion of the bar has been against the existence of such a right in a creditor of an heir, for it is inconceivable that this is the first time the conditions here presented have arisen in our State. Venable v. Railroad, 112 Mo. l. c. 125, and cases therein cited.
Sherwood, J., concurs, and Williams, J., concurs in second paragraph.