Miller v. Aven

• Decision Date: 31 December 1930
• Docket Number: 28591
• Citation: 34 S.W.2d 116,327 Mo. 20
• Parties: Maude Miller et al. v. Charles Aven, Appellant
• Court: Missouri Supreme Court

34 S.W.2d 116

327 Mo. 20

Maude Miller et al. v. Charles Aven, Appellant

No. 28591

Supreme Court of Missouri

December 31, 1930

Appeal from Christian Circuit Court; Hon. Fred Stewart Judge.

Reversed and remanded (with directions).

Moore & Moore for appellant.

When any estate shall be devised to any child, grandchild, or other relative of the testator, and such devisee shall die before the testator leaving lineal descendants, such descendants shall take the estate real or personal as such devisee would have done in case he had survived the testator. Sec. 516, R. S. 1919; Sec. 546, R. S. 1909; Ranck v Metz, 212 S.W. 353; Lounden v. Bollam, 258 S.W 440; Murphy v. Enright, 264 S.W. 811; Snow v. Ferril, 8 S.W.2d 1017; Bramell v. Adams, 146 Mo. 70; McMenary v. Kempleman, 273 Mo. 459; Jameson v. Hay, 46 Mo. 546; Guitar v. Gordon, 17 Mo. 408. Section 546, in force and effect when this will was written, is identical with Section 516, R. S. 1919. These sections apply to bequests or legacies, as well as to devises. Wattenbarger v. Kempleman, 162 Mo.App. 434. As to what would be a sufficient naming of a devisee or legatee while such question could not arise in this case, as the child of testator was named, the following cases might be of some information: Beck v. Metz, 25 Mo. 237; Fugate v. Allen, 119 Mo.App. 183. Naming son-in-law sufficient as to wife. Hockensmith v. Slusher, 26 Mo. 237; Woods v. Drake, 135 Mo. 393. A recital that a child shall take no share of estate is sufficient naming of such child. Block v. Block, 3 Mo. 594.

F. W. Barrett for respondent.

(1) The reviewing court must affirm a judgment if possible where no declarations of law were requested and none given. Griffin v. Mullins, 21 S.W.2d 209; Barnett v. Hastain, 256 S.W. 752. (2) Unless the children or the descendants of such children are named or provided for in the will of a testator, the presumption is that such were forgotten. Pounds v. Dale, 48 Mo. 270; Wetherall v. Harris, 51 Mo. 65. (3) The testatrix herein, Sarah A. Aven, died intestate as to these plaintiffs: (a) Because they were not named in her will. Sec. 514, R. S. 1919; Guitar v. Gordon, 16 Mo. 408; Bradley v. Bradley, 24 Mo. 311; Pounds v. Dale, 48 Mo. 270; Wetherall v. Harris, 51 Mo. 65. (b) Because they were not provided for in her will. Conrad v. Conrad, 280 S.W. 707. (4) The object of Section 516 is to prevent a lapse of a legacy which took place under the common law. Sec. 516, R. S. 1919.

Blair, J. All concur except White, J., who dissents.

OPINION

BLAIR

This case fell to Division Two where an opinion was prepared. Upon dissent by one of the judges, the case was transferred to Court en Banc.

The petition is in two counts. The first was in ejectment, the second for partition. The land is in Christian County. Only an undivided one-seventh interest in said land is in controversy here. On the trial before the court, judgment was rendered for plaintiffs, and defendant, who is the undisputed owner of the remaining undivided six-sevenths interest in the land, was granted an appeal to this court.

Plaintiffs are the children and grandchildren of Cynthia Herndon, a daughter of Sarah A. Aven, who is the common source of title. In June, 1917, Sarah A. Aven made and published a will in which she bequeathed to her daughter Cynthia Herndon the sum of five dollars and to her other six children she gave the remainder of her property. Later in 1917 Cynthia Herndon died leaving plaintiffs as her heirs at law. Sarah A. Aven died in 1927, without making any changes in her 1917 will. She then owned the land in controversy. By the terms of the will of Mrs. Aven, in which plaintiffs were not mentioned, her executors were directed to sell the land. Defendant acquired the land at such sale.

Plaintiffs contend that, as Cynthia Herndon died before testatrix died and no reference was made to them in the will as children and grandchildren of Cynthia Herndon, they are pretermitted heirs, and Sarah A. Aven died intestate as to them, and hence they are entitled to an undivided one-seventh interest in the land.

Defendant contends that plaintiffs cannot and do not occupy the status of pretermitted heirs, because their deceased mother and grandmother, Cynthia Herndon, was bequeathed the sum of five dollars by Mrs. Aven's will.

Section 516, Revised Statutes 1919, reads as follows:

"When any estate shall be devised to any child, grandchild or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have done in case he had survived the testator."

Section 514, Revised Statutes 1919, reads as follows:

"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, 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 part."

On the facts stated and in view of the above quoted sections of the statute, the trial court found that plaintiffs are the owners of an undivided one-seventh interest in said land and ordered partition thereof by sale of the land and division of the proceeds. The effect of said judgment was to rule that plaintiffs are pretermitted heirs of Sarah A. Aven and that she died intestate as to them.

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