DISSENTING OPINION. I cannot agree with the construction of the will of Willis G. Brinson made in the opinion by CRANE, Special Judge. I think there are only two possible constructions of this will, on legal principles, and that this opinion makes neither.
[8] It is disclosed that the form used for this will was the brief will of former Chief Justice WHITE of the U.S. Supreme Court, which has frequently been printed in legal periodicals. (We have italicised the words which appear in both wills.) The will of Chief Justice WHITE is as follows:
"This is my last will. I give, bequeath and devise to my wife, Leita M. White, in complete and perfect ownership, all myrights and property of every kind and nature, whether real,personal or mixed, wherever situated, appointing her executrixof my estate without bond and giving her seisin thereof."
The will in this case is 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 Chicasha, 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 andproperty 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 themseisin 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."
Where Chief Justice WHITE put in the name of his sole devisee "my wife, Leita M. White", the testator here put in "my legal heirs, who are as follows", and then [389] stated the names, addresses and *Page 920 relationship to him of six persons, making no distinction as to whole and half blood in stating this relationship. The testator also added a paragraph to state that his half nephew, Frank Lyon should, if living, receive $10.00, but made no mention as to what his descendants, if any, should receive if he were dead.
It is and must be conceded:
First: If the will had said only "devise to my legal heirs," leaving out the names thereafter set out, then the persons who would take under this will would be those on whom the law casts the inheritance on the ancestor's decease in case of intestacy. [See Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947.] In the present case, these would have been the persons designated in the dissenting opinion of CLARK, J., heretofore filed, per stirpes, just as if there had been no will.
Second: If the will had left out the words "to my legal heirs, who are as follows," and stated only the names as set out in the second paragraph, then those named persons would have taken equally, per capita.
Therefore, I think that it must be considered either that the words "to my legal heirs" are the real disposing words, so that the estate must be distributed completely according to the laws of descents and distributions; or that they are only descriptive words so that the devise was only to the named persons as designated devisees and not as heirs. The opinion, now filed herein, is part one way and part the other. It considers that the words "to my legal heirs" are the real disposing words of the will, and applies them as such to the persons specifically named; but it does not so apply them to Frank Lyon's children, who certainly are legal heirs of the testator and are not excluded by any provision. If the words "to my legal heirs" are disposing and not descriptive words, I do not see how any legal heirs, not specifically excluded, could be left out of the distribution. If the children of Frank Lyon take at all, they would take not as heirs of Frank Lyon (from what was left to him) but as heirs of the testator; but this opinion says that the words "to my legal heirs" should be given their legal technical meaning and then holds that they are not to be so applied to persons who are clearly within such meaning.
However, considering the will as a whole, it does seem to memuch more reasonable to believe that the testator did not use the words "my legal heirs" in any technical sense or even that he knew their technical meaning. If he had, he could not have used them as he did. If he had actually meant "legal heirs" technically, there was no reason whatever for setting out the names of any persons. In fact, it would be a complete contradiction to do so, because, if they were technically used, the persons who would be his legal heirs could not have been named by him when he was still living. No one can name his heirs in his lifetime for the simple reason that "a man does not *Page 921 have heirs . . . until he dies." [Spotts v. Spotts, 331 Mo. 917,55 S.W.2d 977, l.c. 984.] The way the testator did use these words could have meant nothing more than "heirs apparent" (relatives who might be his heirs if they outlived him); and surely a devise to such specifically named heirs apparent is not a devise to the testator's legal heirs, because some of them might not be his heirs and it is possible that none of them would be. Moreover, he clearly demonstrated that he did not mean a devise merely to those who would be his legal heirs because he expressly provided that the son of his half brother should be excluded.
I think the "true intent and meaning of the testator" which the statute (Section 568, R.S. 1939) requires us to ascertain and follow is: that when the testator added to the words "devise to my legal heirs" the words "who are as follows" and stated the names of six persons, he did not and could not have meant to leave his property to any persons who would eventually be his legal heirs but meant instead to leave it to the six relatives specifically named by him. In other words, he used the word "heirs" in the sense of relatives or kin as descriptive words and not as disposing words. That is, he used them exactly as Chief Justice WHITE used the word "wife" in the same place in the will. Clearly, therefore, he meant "devise to my following named relatives," or "devise to the following named persons who are my kin." I think he also meant equally, per capita; first, because in stating their relationship to him he made no distinction between whole and half blood, a distinction he certainly had in mind because he described Frank Lyon as a son of a half [390] brother; and second, because he said he gave it to them "in complete and perfect ownership," which seems to me to carry the implication of equality, to-wit: Complete and perfect ownership in each and in all of the six named without a suggestion of distinction between them. In short, just as Chief Justice WHITE used them to vest complete title in one person. It also seems significant to me that he did show that one and only one named person, Frank Lyon, was to be on a different basis from the rest. That is, Frank Lyon was to get only "Ten Dollars" instead of "complete and perfect ownership" with the others in all of the testator's property.
I think the decree of the trial court should be affirmed.Leedy, J., concurs. *Page 922