Burch v. Brown
| Decision Date | 31 August 1870 |
| Citation | 46 Mo. 441 |
| Parties | MARY J. BURCH et al., Appellants, v. J. N. BROWN et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Fourth District Court.
Lipscomb & Anderson, for appellants.
As to her children and grandchildren, Mrs. Donnelly died intestate, and, as against them, the stranger in blood, Hall, took nothing. The will should be declared void as against plaintiffs. (Bradley v. Bradley, 24 Mo. 311; Hill v. Martin, 28 Mo. 79; Chouquette v. Barada, 28 Mo. 491.)
Brown, Williams & Henry, and Williams, for respondents.
While as to plaintiffs in error the deceased died intestate, yet the will is valid, except so far as to let said heirs at law have of the inheritance an equal part with the devisee. The will is not wholly avoided by the omissions. (R. C. 1855, ch. 131, p. 538, §§ 2, 9.)
The only question in the record depends upon the construction to be given to the ninth section of the statute of wills, and that seems to have been definitely settled in the case of Bradley v. Bradley, 24 Mo. 311. The case shows that in 1862 Malinda Donnelly died in Macon county, possessed of considerable real and personal property, and some time subsequent to her decease a paper was found purporting to be her last will and testament, whereby she devised and bequeathed her whole estate to one Thomas Hall, an entire stranger to her in blood. Hall afterward died unmarried and without children, and whatever estate he took under the will descended to nephews and nieces, his heirs at law, who are the defendants in this suit.
The will was admitted to probate in the Probate Court of Macon county. The plaintiffs, who are the grandchildren of Malinda Donnelly, and her only heirs at law, are not named or in any wise mentioned or provided for in the will, and they brought suit in the Circuit Court to set aside the will, claiming the entire estate. The court sustained a demurrer to the petition, holding that Hall took, as devisee under the will, and was entitled to one-third part of the estate. This view was also taken by the District Court.
The ninth section of the present statute in regard to wills provides that if any person make his last will, and die, leaving a child or children, or descendant of such child or children (in case of their death), not named or provided for in such will, although born after the making of such will or the death of the testator, 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; and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them; and all the other heirs, devisees, and legatees shall refund their proportional parts. (2 Wagn. Stat. 1365, § 9.)
The law declares in the most express and explicit terms that if the child, children, or their descendants, be not named or provided for by the testator, such child or children, or their descendants, shall be entitled to such proportion of the estate, real and personal, as if the testator...
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