This is a suit brought by the executors of the Estate of Willis G. Brinson, deceased, for construction of his will. For an understanding of the issues, the will is set out in full, 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 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."
(Signature duly witnessed.)
The testator was a bachelor and was 72 years of age at the time of his death. We accept the statement of appellant which correctly named the heirs and their relationship to the testator, as follows:
"Willis G. Brinson's mother was married twice. Her first marriage was to James P. Lyon. Of this union two daughters and a son were born; they were, respectively, Mary E., who married one Myers; Emma, who married one Hedgpeth, and Leonard D. Lyon.
"After the death of James P. Lyon said mother married Frank M. Brinson, Sr. Of this union two sons were born, Willis G. Brinson and Frank M. Brinson.
"The father and mother and all of the children of the first marriage, the two half sisters and the half brother of the testator, died, each leaving issue, before the death of the testator, so that, at his death, his heirs were:
"1. A full brother, Frank M. Brinson.
"2. Two half nieces, Pearl Shaffer and Harriet Criswell, and two half nephews, Harry E. Myers and Marvin B.G. Myers, all children of Mary E. Myers and her only heirs.
"3. One half nephew, Pete Hedgpeth, the only surviving child and the sole heir of Emma Hedgpeth, and
"4. Three great half nephews, Gordon Frank Lyon, Donald James Lyon and Wallace Lee Lyon, all children of and the only heirs of Frank Lyon, who died October 10, 1938, and who was the son and only heir of Leonard D. Lyon (137). At the time of the trial the *Page 906 ages of the three great half nephews were, respectively, 19 years, 18 years and 16 years."
[380] The issues on the trial were:
(1) What construction or interpretation is to be given to the words used in the will, "to my legal heirs?" Was the use of these words by the testator intended to invoke the statute of descents and distributions and thereby result in a distribution of the estate per stirpes, or were the words merely used as the designation of a class consisting of the individuals thereafter named and so result in a division per capita?
(2) Did appellant, Frank Brinson, the brother, as a collateral heir of the full blood, take a double share over an heir of the half blood? and
(3) Were the three minor children of Frank Lyon to take any part of the estate under the will?
The trial court ruled that the distribution should be per capita to the heirs named in the will, and that the three minor children of Frank Lyon should take nothing. Frank Brinson, full brother, and Pete Hedgpeth, a half-nephew and co-executor, appealed. An appeal was also taken by the minor children of Frank Lyon.
[1] At the present time, there are a few well settled rules to be applied in the construction of wills, and these are so generally accepted that citation of authority is not needed to further establish them. The prime rule of construction is that the court, without attempting to make a new will or an equitable distribution of the estate, must confine its endeavors to ascertaining the real intent of the testator. To this end the will must be read from its four corners and effect given to all its plain provisions, provided, of course, they are not in violation of law. If there is doubt as to the proper construction of the will, after its own provisions and language are fully considered, then the court has the right, in aid of construction or interpretation, to consider the circumstances surrounding the testator at the time of making it.
[2] Certain concessions frankly made by counsel on both sides obviate the necessity of an exploration of the law and citing and distinguishing cases in regard to the use of the words "to my legal heirs." It is conceded by respondent that "If the testator's will had provided that all of his property should go to his legal heirs and nothing more, the presumption would have arisen that the testator intended that his property descend in accordance with the law of descents and distributions of the State of Missouri." This, of course, would mean a per stirpes division. On the other hand, counsel for appellant concedes that if the bequest had been made to certain named relatives then the division would have been per capita. So that the question squarely arises whether or not the whole framework of the will and the circumstances surrounding the testator at the time *Page 907 the will was made require the Court to give no effect to the words "to my legal heirs." In other words, we are asked to hold that these words are not to be given their usual legal meaning but are to be treated merely as the designating term of a class. Some doubt as to the effect to be given these words may have been created by the uncertainty as to the draftsman of the will. In two of the opinions heretofore rendered by judges of this Court it is stated that the will was drawn by a layman. The record, however, is silent as to the draftsman of the will and we have no evidence before us as to who he was. Counsel for appellant makes the interesting suggestion that the draftsman followed the copy of the will of the late Chief Justice White of the United States Supreme Court, and counsel for respondent agree that this is probably true. The will of the late Chief Justice has been cited as a model of simplicity and brevity. The will here uses practically the same language in most of its structure. The White will devised the property "to my wife, Leita M. White." The present will uses the words "to my legal heirs." These words are not found anywhere in the White will. If the testator here had been literally following the White will he would have made his bequest to his "relatives," but instead he used the words "to my legal heirs." We have no right to assume that the testator or the draftsman of the will was ignorant of the legal meaning of the words used. If it be assumed that the testator himself drew the will we have no means of knowing whether he took the advice of counsel as to the meaning of those words which as we stated were a departure from the White will; for aught the record shows he may have done so. In any event, we are not warranted in ignoring these words or assuming that they were ignorantly used. In Wooley v. Hays et al., 285 Mo. 566, 226 S.W. 842, this Court said, speaking of these words when used in a will:
"Nor do the words `lawful heirs' create any ambiguity, latent or otherwise. Those words are as certain in their meaning as any words in the English language can be."
It is urged, however, that because the testator made his devise "to my legal heirs" and then said who they were, as follows: (giving their names and addresses) and thereafter in the will evinced a purpose to cut off his half-nephew, Frank Lyon, with a mere nominal bequest, he used the words "legal heirs" as merely descriptive of the class among whom he intended that his estate be divided. We do not believe that this conclusion follows. If the testator after naming the beneficiaries as he did, had intended that they should share equally and had so stated, then, endeavoring to get at his true intent it would have been clear that he meant a per capita division. Wooley v. Hays, supra. Sometimes omissions can speak as loudly and positively as words themselves.
Considering the fact that the testator was a man who gave careful attention to his affairs, was particular and precise in the handling of *Page 908 his finances, we think the omission of any such words as "equally" or "in equal shares" is highly significant. If these words had been used there would have been no question as to their meaning or the testator's intention.
Respondent asks why the testator if he merely desired to distribute his estate to his legal heirs, thereafter specifically named them? As disclosed by the context and general purport of the will there are several answers to this query.
(1) He desired to disinherit or make only a nominal bequest to Frank Lyon; so desiring he aids his purpose by naming those to whom his entire estate is to be distributed. This for certain emphasis of his disinheritance of Frank Lyon. See Rixey et al. v. Stuckey et al., 129 Mo. 377, 31 S.W. 770.
(2) He desired to distribute his estate only to his known heirs (this proposition will be amplified later on).
(3) For the reasons stated by Judge Clark in his first opinion prepared in this case, which was not adopted, but with which we agree in part, as follows:
The testator not only named his heirs (and correctly named them as of the date of the will), but he gave the residence address and kinship of each, except that he did not designate any of them but the father of Frank Lyon as being of the half blood. The residence addresses were no doubt given as an aid to the executors in locating and identifying the heirs. The degrees of kinship might also be of some value for purposes of identification, but the testator may well have thought that this information might be of some importance in determining the amount to be distributed to each heir.
So our conclusion is that this naming of the heirs does not militate against a per stirpes distribution.
This case is rather unique, in that while on the face of it the situation is simple, yet it has created a wide divergence of views as shown by the opinions which have heretofore been written and filed in the case. Counsel for all the parties in interest are to be commended for their diligence in research, their helpful briefs and the able arguments made at the hearing. Their arguments and briefs and the authorities cited by them have all been fully reviewed and considered. It has been repeatedly said by the courts that precedents are not of great value in will cases of this character. This is true because no two wills that have come under review by the courts are precisely alike either in their language or in the circumstances surrounding the testator at the time of making the will. So, in the present case, while the authorities cited and others have been reviewed and considered and used as "assistants," no case has been found on all fours with the one here under consideration. For that reason it has been thought unnecessary to burden this opinion with an attempted analysis of the various authorities cited or consulted. In an able and scholarly brief *Page 909 respondent's counsel have raised many interesting questions. For instance, it is argued that neither Frank Lyon nor his sons (minor appellants) could be disinherited of an intestate share of the testator's estate unless the will effectively gave the property to other persons. We think, however, that the will clearly shows that this was exactly what the testator intended to do. Taking the whole scope and purpose of the will, it is as though the testator had said, "I give, devise and bequeath to my legal heirs (except Frank Lyon, for reasons hereinafter mentioned) such other heirs are as follows:" No rule of law prevented the [382] testator from making such an exception. We think he meant to do it. Other interesting arguments are advanced, all of which have been fully considered but do not change our conclusions. They are, however, of sufficient strength and cogency to create doubt. As stated, this case has raised many doubts as shown by the different opinions. If it had been free from doubt the court ought not to have entertained the action, but under the circumstances was fully justified in so doing. In doubtful cases like this the courts seeking firm ground have said that the statutes of descents and distributions furnish "a safe guide." Such statutes announce public policy and are generally accepted as being fair and just. That "safe guide" can and should be followed in this case because no positive provision of the will prevents it, but on the contrary the language used by the testator invites it.
In Lyon v. Ackers, 33 Conn. 222-3, an extensively quoted case, it was said:
"The statute of distribution governs in all cases where there is no will; and where there is one, and the testator's intentions are in doubt, the statute is a safe guide."
This language is approved in the great opinion written by Judge Cardozo in New York Life Insurance Co. v. Winthrop, 237 N.Y. 93,142 N.E. 431. In that case will be found the reasons (with a wealth of authority) for the adoption of this rule, as well as the effect of the words "legal heirs" when used in a will. This case can be consulted profitably by those interested in similar situations. Judge Cardozo announced that the words "legal heirs" or "legal next of kin" take their "color and connotation" from the schedule of the statute (of descents and distributions). He also said that:
"In the absence of clear tokens of a contrary intention, the statute is to be taken as the standard of division."
We think the rule thus announcing the statute as a "safe guide" is of almost universal acceptance and should be adopted and followed. By so doing a distribution in this case should be made per stirpes.
Records v. Fields, 155 Mo. 314, 55 S.W. 1021, cited by respondent, clearly runs counter to the great weight of authority and should no longer be followed.
[3] Because of the legitimate doubts which may be entertained as to the testator's intention from the will itself, it is proper that the *Page 910 Court should consider the circumstances surrounding the testator at the time of making the will to ascertain whether the conclusions heretofore reached and the presumptions indulged are supported or overthrown. In other words, the Court, placing itself in the position of the testator, endeavors to ascertain the disposition that he would naturally make of his property under the circumstances.
The record shows that the testator was in some respects a rather unusual character. When ten years of age he and his brother Frank, who was three years his junior, sold newspapers and even at that early age were partners. He later became a telegraph operator and conducted an office of the Postal Telegraph Company in Beatrice, Nebraska. Then he was manager of the St. Joseph office of that company and was there joined by his brother Frank. They continued in that line of work for a number of years. Before they were of age they purchased real estate, which was taken in their father's name because they were minors. Throughout their entire business career these brothers were partners in all their enterprises and on the dissolution of such partnership made an equal division. The testator was never married. His one close tie was his brother Frank. In 1915 he retired from business while Frank continued in the coal business. After his retirement he spent practically all of his time in his brother Frank's office. This brother received an injury in 1925 resulting in his becoming crippled. At all times the testator evinced the greatest interest in his brother's condition, both financial and physical. Aside from this brother, he was closer to his nephew, Pete Hedgpeth than any of his other relatives. His relations with his other relatives were pleasant enough but not close. He showed an interest in their affairs and appreciated any attention they gave him. As counsel puts it, his relations with them were "casual" and this probably expresses the situation correctly.
As pointed out in his will, his half-nephew, Frank Lyon, had not been heard from for many years. In other words, Frank Lyon had paid no attention to his uncle who was unaware whether he was living or dead. Testator shortly prior to his death learned of the fatal accident to Frank Lyon, but prior to his death he did not know whether Frank Lyon had, or had not, children.
[383] Testator was a man of thrift and prudence. Starting as a newsboy he left an estate which in the Probate Court was appraised at $73,493.43.
Such, in brief, is the picture which the record gives of the testator. From it we are forced to believe that our conclusions heretofore reached are correct. A per stirpes division of course gives Frank M. Brinson a larger share in the estate than any other heir. This, however, seems entirely in accord with what testator would naturally desire to do, inasmuch as he had neither wife nor children. Not often is there found an instance of such close union as existed between *Page 911 these brothers. The record shows nothing occurred prior to testator's death to mar or interfere with that relationship. Testator's accumulations were made largely while in partnership with his brother. His concern for his brother's welfare, particularly in view of his invalidism, would naturally lead him to the division of the estate which we think the will calls for.
In this connection, Division Two of this Court in the very recent case of Gannett v. Shepley, 351 Mo. 286, 172 S.W.2d, p. 857, said:
"One of the most telling circumstances in determining an intended beneficiary, when there is some doubt about it, is the relationship of the testator to the beneficiary. Settle v. Shafer, 229 Mo. 561, 129 S.W. 897; Cox v. Jones, 229 Mo. 53, 129 S.W. 495."
Logically, the same rule should apply when there is doubt as to the amount of the estate going to a beneficiary.
As we have heretofore said, courts have no right to make wills or to attempt to do what they think is equitable or fair when construing them. Nevertheless, when confronted with doubtful cases like this they should consider the testator's circumstances and endeavor to keep within the orbit of human experience and have regard to those ties of affection which normally influence human action.
[4] Finally, we come to the question of whether or not the minor appellants, that is, the children of Frank Lyon, are entitled to take anything as heirs. When all of the circumstances are considered; the fact that the testator desired to cut off Frank Lyon for the reasons stated in the will, the fact that he did not know anything about Frank Lyon's children, taken with the entire context of the will, leads to the conclusion that the testator desired distribution of his estate only to his known heirs. This proposition has been well stated by Judge DOUGLAS in his opinion in this case, and we adopt that portion of it as follows:
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 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 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 *Page 912 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.
[384] On this branch of the case we have been furnished able briefs evincing extensive research by amici curiae. Their interest, however, is not so much in this case as in another piece of litigation of importance where they are seeking a construction of Section 526, R.S. Mo. 1939, relating to intestacy as to children not named in a will. This statute, however, so clearly by its language refers to lineal descents and not collaterals that we think it has no application to the present case. Our ruling, therefore is not to be taken as an attempted construction of that statute.
The conclusions reached result in a reversal and remanding of the cause with directions that a decree and judgment be entered ordering distribution per stirpes to the named beneficiaries in the will with the exception of Frank Lyon. Judgment to be in accord with the statutes of descent and distribution, Sec. 306 et seq., R.S. Mo. 1939, as qualified by Sec. 309. Under these statutes the distribution to Frank M. Brinson is a double share, the others taking in accordance with the provisions of the statutes and the children of Frank Lyon to take nothing. The judgment of the Circuit Court is reversed and the cause remanded with directions as above stated. Tipton, J., and Ellison,C.J., concur in opinions of Douglas, J., and Crane, Sp. J.;Douglas, J., concurs in opinion of Crane, Sp. J.; Clark,J., concurs in opinions of Douglas, J., and Crane, Sp. J., in part and dissents in part, in separate opinion; Hyde, J., dissents in separate opinion in which Leedy, J., concurs;Gantt J., absent.