DISSENTING OPINION. I agree with much that is said in the well written opinions of DOUGLAS, Judge, and CRANE, Special Judge, but I do not concur in that part of them in reference to the minor children of Frank Lyon and the conclusion that they are not entitled to share in the estate.
[7] From the wording and arrangement of the will, I think the testator intended to give his property to his legal heirs, and to give it to them because they were his heirs; that is, with the exception of Frank Lyon, he intended each to take in accordance with the statutes of descent and distribution. It seems that the testator believed that *Page 918 each heir would take under the law unless he expressly provided otherwise, and therefore he limited the share of Frank Lyon, if living, to a nominal amount.
The devise to Frank Lyon was conditioned on his surviving the testator. As he predeceased the testator, this devise became void. This is apparently conceded by all the parties.
The only reason given in the will for excluding Frank Lyon from a substantial share was that testator had not heard from him for many years, and did not know whether or not he was living. A very short time before his death, testator learned that Frank Lyon had died after the will was executed but he never learned that he had left surviving children. It is not clear that testator harbored any ill will toward Frank Lyon, but, even though we may think he did, we are not authorized to believe that he also disliked his unknown children. From the fact that he desired to disinherit Frank Lyon, it does not logically follow that he also wished to disinherit his children of whose existence he was unaware.
[388] If I am right in my view that the dominant intent of the testator, as expressed in the will, was to give his property to his legal heirs, then these minors are entitled to share although not named in the will and although the testator did not know they existed.
"The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly, either by express words or by necessary implication. This rule of construction, however, is one which applies only in doubtful cases, for the will of the testator, if expressed in clear and unambiguous language, must prevail, even though it disinherits the heirs. A necessary implication is one which results from so strong a probability of intention that an intention contrary to that imputed to the testator cannot be supposed. In the absence of plain words in the will to the contrary, the presumption is that the testator intended that his property should go in the legal channel of descent, and if it is uncertain and doubtful whether the testator intended to devise real estate, the title of the heir must prevail. There is no presumption from the fact that he made a will that the testator meant its construction to be at all possible points inconsistent with the statute of distribution. Instead the law favors that construction of a will which conforms most nearly to the general law of inheritance." [R.C.L., sec. 190, pp. 229, 230.]
My view is that the testator intended to devise and bequeath his estate to all his legal heirs, (except Frank Lyon) in the proportions indicated by our statutes of descents and distribution. Even if his intent is left in some doubt, this solution will more nearly accord with justice than any other. *Page 919
"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." [New York Life Ins. Tr. Co. v. Winthrop, 237 N.Y. 93, 142 N.E. 431.]
My view is that the decree of the trial court should be reversed and the cause remanded with directions to enter a decree construing the will to require distribution among the heirs of deceased, including the children of Frank Lyon, in accordance with the statutes of descents and distribution.