Appeal from circuit court, Cass county; W. W. Wood, Judge.
MARSHALL, J.
This is a proceeding in equity to construe the will of A. C. Briant. The plaintiffs (except Sloan, the executor) are the heirs at law (brothers and sisters or their descendants) of the deceased, and the defendants are the children of Sallie Garrison, wife of Eli P. Garrison, referred to in the third clause of the will. The petition sets out the will of A. C. Briant, which, after directing first the payment of his debts, gives, second, a life estate to his wife, Susan G., with power of sale, and then is as follows: "Third. In case my executors shall not in the lifetime of my said wife sell or dispose of the same, then I desire and give unto the children of Sallie Garrison, wife of Eli P. Garrison, all that part of the land owned by me now, and situate in Cass county, Missouri, to wit, all that land situate east of the center line running north and south between sections eight (8) and seventeen (17), in township forty-six (46), of range thirty-three (33); said land to be equally divided among the said children of Sallie Garrison now living, and hereafter to be born to her. Fourth. In case my said executors shall not in the lifetime of my said wife sell and convey the remainder of my real estate of which I may die seised, I hereby desire that the same go to my brothers and sisters, to be equally divided between them, share and share alike," etc. The fifth clause provides for the management of the estate during the continuance of the life estate. The petition then alleges that conflicting claims have been set up by the devisees regarding the true construction of the will, the principal one being in reference to the third clause of the will, and averring: "That said clause being ambiguous and uncertain, for the reason that the line running between sections 8 and 17 runs east and west, instead of north and south, it cannot be said what real estate is situated on the east side thereof. Plaintiff states that there are doubts arising as to the proper construction of said will, upon the following questions: (1) What interest and estate has Susan G. Briant in said real estate under the terms of the will? (2) Is the said third clause in said will certain enough to be carried out, or is the same void for uncertainty; and, if valid, what land was devised thereby? (3) What real estate was devised by the fourth clause in said will?" The defendants, being minors, defended by their duly-appointed guardian ad litem, R. T. Railey, and after admitting the allegations of the petition as to the will, and the relationships and character of the parties, and pleading the discharge of the executor and executrix, pleaded specially as follows: "Said defendants, for further answer, state that, under and by virtue of the terms and provisions of the will aforesaid, said A. C. Briant attempted to devise and bequeath to these defendants all that part of land which he owned in Cass county, Missouri, lying on the east side of the line drawn through the centers of sections 8 and 17 in township 46, of range 33; that, through the mistake of the scrivener in writing said will, said land was described as follows: `All that land situate east of the center line running north and south between sections 8 and 17,' etc.; that said description, where the word `between' occurs, should have contained in lieu thereof the following words: `through the centers of sections 8 and 17'; that the intention of said testator to convey the land described last aforesaid appears upon the face of the whole instrument; that after the execution of said instrument said testator, in the presence of several persons, stated that he had conveyed all the land on the east side of a line drawn through the centers of sections 8 and 17, by will, to these defendants, and, in addition thereto, after the execution of said instrument went upon said land with other persons, and
pointed the same out to them as the real estate which he had devised by will to these infant defendants; that his said widow, Susan G. Briant, and Charles W. Sloan, as executors of the said estate, after they qualified as such and took charge of the same, recognized and treated the land described as lying on the east side of a line drawn through the centers of sections 8 and 17 aforesaid as the property of these defendants, and wound up said estate in accordance with such fact; that, as to other matters set up in the petition, these defendants have no information, or knowledge sufficient to form a belief, as to the truth or falsity of the same, and therefore ask the court to protect their rights in the premises. Said defendants further pray for a decree of this court correcting the instrument attached to the petition herein as the last will and testament of said A. C. Briant, so as to strike out the word `between,' heretofore set out, and insert in lieu thereof the words `through the center of,' so that the land described as having been devised to these defendants shall be shown to be all that land lying upon the east side of a line drawn north and south through the centers of sections 8 and 17 aforesaid, and for such other and further relief as to the court may seem right and proper." The reply was a general denial of the new matter in the foregoing answer.
For the purposes of this appeal, we adopt the statement of the appellants as to the proceedings upon the trial in the circuit court, which is as follows:
"Plaintiffs, to sustain the issues upon their part, offered the following admissions: `It is admitted that the plaintiffs herein, with the exception of C. W. Sloan, executor, are the heirs at law of A. C. Briant, deceased. It is admitted that the defendants are the minor heirs and only heirs of Sallie and Eli P. Garrison, and that R. T. Railey was appointed guardian ad litem of said minor heirs. It is admitted that the plat, which is now identified, and marked "Exhibit A," is a correct plat of the real estate owned by A. C. Briant at the time of his death.' The plat referred to is this:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
"Upon these pleadings and admissions and plat, the plaintiffs rested their case, and asked for the judgment of the court. Defendants demurred to this evidence on the ground that the will, on its face, showed that all the property of testator had been disposed of, which demurrer the court overruled. The defendants then offered parol evidence of numerous witnesses in support of their answers, and which they contend established the fact that the ambiguity in the will was caused by a mistake of the `scrivener in writing the will,' and `that said description, where the word "between" occurs, should have contained in lieu thereof the following words: "Through the centers of sections 8 and 17."' This parol evidence was all objected to by plaintiffs on the ground that it was not competent nor material; that the ambiguity was patent, and not such as could be explained or modified by parol testimony. The court heard all the testimony offered, subject to all legal objections, and finally, in passing on the case, admitted defendants' testimony on that issue. The evidence thus introduced by defendants, and to which exceptions are saved here, was, in substance, that the testator had no children; that Mrs. E. P. Garrison was brought up by him and his wife in their family, and treated as their child, though not adopted as such; that during the lifetime of A. C. Briant he had made a gift to Mrs. Garrison of 160 acres of land, worth about $4,800; that he seemed to be very fond of the Garrison children; that in 1889 he said to one witness (Hamilton) that he intended the farm on which the Bane house was situated for `Sallie and the children'; that he told A. F. Blair that he had left most of his property to Sallie Garrison's children; that C. W. Sloan wrote the will, and was co-executor with Mrs. Briant in administering the estate; and that during the life of Mrs. Briant, who occupied and used all the lands while she lived, witness Sloan had never heard that there was any ambiguity in the will. The father of the Garrison children, E. P. Garrison, was also permitted to testify that testator and he rode over the farm together, and testator, when he got about to the half-section line which runs north and south, said to witness that he had rewritten, and made some changes in, his will. This witness then testified as follows: `Q. What change did he tell you he had made? A. He said he left the children all the land east of the central line. Q. Which central line? A. His central line, running north and south, — running through the sections 17 and 8; and that was one change from the will I had written.' The court permitted this testimony, with the rest, over the plaintiffs' objection. Defendants then offered to prove by the brother of testator, George W. Briant, that, in August before the death of the testator, he and the witness were riding along the road going east on the section line between sections 8 and 17, and testator said this was the line east and west dividing his farm, making...
