Guitar, et al., Appellants, vs. Gordon, et al., Respondents, 17 Mo. 408

Soott, Judge, delivered the opinion of the court.. Our laws permit every person of sound mind and of competent age, to dispose of all his estate, real and personal, saving to the widow her right of -dower. He may disinherit his children and bequeath his property to whom he sees fit. The eleventh

section of the act concerning wills provides, that if any person make his last will, and die, leaving a child or children, or descendants of such child or children, (in case of their death,) not named or provided for in such will, every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate. This

section has been held only to make provision for children or their descendants, unintentionally omitted by their parent from forgetfulness or any other cause. If a child is expressly excluded from any portion of the estate by the will, he is provided for in the meaning of the act. In such case, it plainly appears that the child was not forgotten. Block v. Block, 3 Mo. Rep. 408.

A law in Massachusetts directs that, in case a child or children, or their legal representatives, in the event of their death, shall not have a legacy given him, her or them, by the will of their father or mother, he, she or they shall have a proportion of the estate of their parents assigned untó him, her or them, as though such parent had died intestate.

Under this statute, it was held that, if the testator, in his will, mentions a son-in-law and one of his children, it thereby sufficiently appears, that the other grand children by that son-in-law were in the mind of the testator, and therefore not entitled to come in, as if unintentionally omitted. Wilder v. Goss, 14 Mass. Rep. 357. If a child is named in a will and it is known that such child has descendants, it is impossible to say they were not in the mind of the testator. The object of the

section must be borne in mind. It is not to prevent parents from disinheriting their children, but merely to make provision for those who may-have been unintentionally omitted. Under a statute in New Hampshire, similar in its language to that above cited from the. code of Massachusetts, it was held, that a testator, leaving seven grand children, children of a deceased son, if in his will he mentions two of these grand children, and also their father, the presumption of law was, that the other five grand children were not omitted through forgetfulness. Merrill & wife v. Sanbourn, 2 N. H. 499.

Although by naming the mother in the will, the presumption may be raised that her descendants were in the mind of the testator, if he knew of their existence, yet we are of opinion, that the will now under consideration, by a just construction of the statute concerning wills, entitles Mrs. Guitar’s children to the portion she would have received, had she survived her father, the testator. The thirteenth

section of the act concerning wills provides that, if an estate shall be devised to a child, and the devisee shall die before the testator, leaving children, such children shall take the estate devised, as the devisee would have done had he survived the testator. This section, taken in connection with the eleventh

section above cited, and that which directs that all courts concerned in the execution of wills, shall have due regard to the true intent and meaning of the testator, furnishes a principle by which this controversy may be determined. This principle would give to the children of Mrs. Guitar the estate that was seemingly devised to her. The justice of the rule, when applied to a case in which the testator was ignorant of the death of his child, would be obvious. In such an event, would her children be deemed to be named, and therefore disinherited ?

Would there be an intestacy as to them, or would they take the portion designed for their mother by the will? The mother being dead, no doubt the bequest to her was void. If the will is construed in reference to the provisions of the statute which have been cited, would not every one say that, in such case, it was the intention of the testator that the children should take their mother’s share ?

If the provision made for the daughter should be less than an equal part of the estate, to declare an intestacy as to her children, would be doing violence to the principle that recognizes the right of a testator to disinherit his children and to dispose of his property as he. pleases. It is a rule that, in order to form a right judgment whether a case is -within the equity of a statute, -you should suppose the law maker present and propound to him this question: Did you intend to comprehend this case ?

Then you must give yourself such answer as you may imagine he, being an upright and reasonable man, would have given. If it be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute ; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto. 6 Bacon, 386. We are not making a will for the testator, but construing a statute. The peculiar circumstances of this case liken it to the case of a bequest to a dead child, of whose decease the testator was ignorant.

Here the testator regards one vrho is known to be dead as though she was alive. Bearing in mind the principle which pervades our law of descents, that among children, if part of them be dead and a

part living, the children of those dead shall take the place of the deceased parent, the testator treated his daughter, who had departed this life, as though she had been alive. • The death of Mrs. Guitar is not alluded to ; she is mentioned as though she was alive. What advancement he had made to her is stated, as well as that to the rest of his children. After speaking of her precisely as he does of those who are alive, he directs that the residuum of his estate should be divided among his children, expressly excluding one who had already been sufficiently provided for.

His object in all this must have been, that her children should enjoy the provision made for her. The mother, though dead, was, in his mind, the representative of her children.

Where a testator directed by his will that his estate should be equally divided among his children, and stated that certain amounts received by them should be rendered by each to the estate before being entitled to a distribution, and among those who had obtained advancement, named his son as having, in his life time, received a specific amount, it was held, that a grandson, descendant of the son, was entitled to a distributive share under the will. S Por. Ala. 452. Judge Ryland concurring, the judgment will be reversed and the cause remanded.