SEDDON, C.
Suit in equity, brought in the circuit court of Howell county by plaintiff, William H. Bond, who is a grandson of Newton
Bond, deceased, asking a construction of the will of Newton Bond, which was duly probated in the probate court of Howell county on July 3, 1922. The suit was transferred to the circuit court of Ozark county upon change of venue. Omitting the formal parts of the will, the several paragraphs or clauses thereof are as follows:
"First. All my just debts, including funeral expenses shall be paid.
"Second. I having heretofore advanced to my daughter, Josephine Riley, her share of my estate, she shall take nothing more under this will.
"Third. I having heretofore advanced to my son, Carroll J. Bond, his share of my estate, he shall take nothing more under this will.
"Fourth. I having heretofore advanced to my son, John C. Bond, his share of my estate, his heirs shall take nothing more under this will.
"Fifth. (1) I give and bequeath to my son, William Bond, lot two in block twenty-seven in the original city of West Plains, Howell county and state of Missouri, subject to the payment of any mortgage or incumbrance that may be on said property at my death.
"Fifth. (2) I give and bequeath to my grandson, William N. Bond, an undivided half interest in the west one hundred and ten feet (110) of lot one in block twenty-seven in the original town, now city of West Plains, in Howell county and state of Missouri, subject to the payment of any mortgage or incumbrance that may be on said property at my death.
"Sixth. I give and bequeath to my daughters, Ellen Haynes and Annie Arnett, the one undivided half interest in the west one hundred and ten feet of lot one in block twenty-seven in the original town, now city of West Plains, in Howell county and state of Missouri, subject to the payment of any mortgage or incumbrance that may be on said property at my death.
"Seventh. It is my request that my executor hereinafter named take charge of the buildings on lots one and two, in block twenty-seven, and rent said buildings to the best advantage for such time as the rents and profits will pay off any incumbrance on said lots, when all incumbrances by me placed on said lots are fully paid, my said executor shall deliver said property to the parties herein named as my devisees, said executor to keep up the improvements and pay the taxes out of the rents from said property while same is in his possession.
"Eighth. Whatever remains of my estate (other than property hereinbefore named), after paying my just debts and funeral expenses, give and bequeath to my son, William Bond, and his mother, Perlina Bond, in equal shares.
"Ninth. I hereby appoint W. W. Toler of West Plains, Missouri, executor of this my last will and testament."
Plaintiff is a son of John C. Bond, who is named in paragraph "Fourth" of the will. John C. Bond was a son of the testator by a first marriage and predeceased his father, Newton Bond, the testator, prior to the making of the will, leaving a widow and five children, including plaintiff, surviving. All of said five children of John C. Bond survived the testator, Newton Bond, their grandfather. The testator had another son by his first marriage named William N. Bond, who also predeceased the testator, prior to the making of said will. William N. Bond was survived by a son, Boyd C. Bond, who, of course, is a grandson of testator. The record herein shows that the testator had only one grandson bearing the Christian name "William," such grandson being the plaintiff herein, William H. Bond. Paragraph "Fifth (2)" of the will describes the beneficiary of the devise made in said paragraph as "my grandson, William N. Bond." The testator had no grandson bearing the Christian name "William" and the middle initial "N." The grandson, Boyd C. Bond, son of William N. Bond, is not named or provided for in the will of Newton Bond as written and probated, nor is his father, William N. Bond, son of the testator, named or mentioned therein as being the testator's son. The testator also left surviving him a minor son by a second marriage, named William Bond, who is named and provided for in paragraphs "Fifth (1)" and "Eighth" of the will.
Pursuant to the directions of the will, the probate court appointed W. W. Toler as executor of the estate of Newton Bond, but he subsequently resigned his office and an administrator of the estate with the will annexed was appointed in his stead by the probate court. The defendants herein are, respectively, the several beneficiaries named in the will of Newton Bond, the administrator of his estate, and the heirs at law of Newton Bond, the testator. The petition alleges that there are conflicting claims to the estate of said Newton Bond under the provisions of the will, and that the administrator of testator's estate and the parties to the suit are in doubt as to the meaning and terms of the will, wherefore the court is asked to enter a decree construing said will and determining the rights and duties of the parties thereunder.
The testimony discloses that the two sons of testator, namely, John C. Bond, father of plaintiff, and William N. Bond, father of Boyd C. Bond, died several years before the testator made his will. The testator's place of residence, for many years prior to his death, was the city of West Plains. Plaintiff left West Plains, the place of residence of his grandfather, the testator, when he was a young child about 11 years of age, and about 14 years prior to the making of the will. The record shows that plaintiff, after leaving West Plains, had never returned to see or visit his grandfather, and had never at any time in his life made his home with the testator. There was some testimony, apparently offered by plaintiff for the purpose of showing testator's especial interest in and affection for plaintiff, to the effect that, while plaintiff was a very young lad, his grandfather had made him some presents of small pecuniary value, consisting of toys, knives, shoes, etc., but that the grandfather had bestowed
no similar gifts upon plaintiff's two brothers and two sisters. Plaintiff, in explaining the good feeling and affectionate relation which existed during plaintiff's early boyhood between him and the testator, testified:
"He would always take me to town with him and buy me presents and things, and he always liked for me to be with him. I remember one time when he got me some little red boots, and he would get me knives and tops and things. Then he used to send me things when we went away from there [West Plains], even after we went to Texas, and I used to send him things sometimes."
R. S. Hogan, the scrivener who wrote the will and one of the attesting witnesses to its execution, was permitted to testify, over the objections of plaintiff, as follows:
"Q. Did you know Newton Bond? A. Yes, sir.
"Q. Did you write the will in question here? A. Yes, sir.
"Q. At whose request did you write it? A. At his request.
"Q. Where was it written? A. At his house. "Q. Did you take down the terms of the will? A. Yes, sir; he sent for me, and I went over and made a pencil draft. I took down some notes and then had the will typewritten.
"Q. I will ask you whether or not you know if Newton Bond had a son named William N. Bond? A. Yes, sir.
"Q. Was he living or dead at that time? A. He was dead.
"Q. Do you know about how long he had been dead? A. About 25 years.
"Q. Did William N. Bond have any children? A. Yes; a son.
"Q. Do you know his son's name? A. Yes, sir; it was Boyd C. Bond. * * *
"Q. Did Boyd live with his grandfather? A. For some time.
"Q. Now explain to the court about that statement of Mr. Bond [testator] about what he wanted in his will you prepared with reference to Boyd. What was said? A. He called me down to the house; he was not able to sit up, and he told me that he wanted me to put in the will that he didn't want Mrs. Riley to have anything, as she had already had her part.
"Q. Just tell about the disputed part. A. Well, he said in reference to John Boyd [Bond?] that he did not want him or his heirs to have anything; he had already had more than his share. Then he said that he wanted the boy who lived with him to have part of his estate. As I understood his name at that time, his name was William Newton, named after him. * * * Well, he said that he wanted his grandson, William's son, to have part of the property, because he lived there with him and had always been good to him.
"Q. That clause in the will where you tried to draw the will to convey the property to Boyd C., or the son of William, was that the clause in which he meant to provide for him? A. Yes, sir.
"Q. Do you remember what the original pencil draft said? A. That it was to go to `my grandson, the son of William N.'
"Q. What did you think the boy's name was at that time? What did you think his name was? A. I thought it was William N.
"Q. What do you know about Boyd having lived for a long time with Newton Bond? A. I know that he lived there for some time, but I don't know for how long.
"Q. Did he claim that for his home? A. Yes, sir; for a number of years.
"Plaintiff's Counsel: I move the court that all of this witness' testimony be stricken out which relates in any way to statements of the testator, Newton Bond, or to any directions he may have given, for the reason that the will, and no other instrument, declares the intention of the testator, Newton...
