
    Block and Wife, and Kelly and Wife v. Block et al.
    If the testator declare by his last will and testament, that one of his children shall take no part of his estate, this is a good,provision under the statute for such child, and the testator shall not be deemed to have died intestate as to such child.
    ERROR to St. Louis Circuit Court.
   M’Girk, C. J.,

delivered the opinion of the Court.

Moses Block and others brought a petition for partition of two lots of ground in St. Louis, against Phineas Block and' wife, et al. The petition sets out the respective rights of the parties, and shows that they claim as devisees of Simon Block, and that in and by the will of said Simon, he mentions the name of Delia Block, the wife of said Phineas, and expressly declares, that she shall have nothing; then he goes on to devise all his real estate-to his wife and children. Phineas Block and Delia his wife, appear to the petition, and answer and insist, that Simon Block as to her died intestate, and that she is entitled to an equal portion with the other children. On the hearing of the petition, the Court decreed that the said Delia was not entitled to take-any thing, she being excluded by her father’s will; and this is the only question made in the case. By the 20th section of the act respecting wills and testaments, {Revised Code 795,) it is enacted, “that if any person shall make his last will and testament, and die leaving a child or children, or their descendants, not provided for in such will, although such child or children be horn after the death of the testator, every such testator, so far as shall regard any such child or children, or their descendants not provided for as aforesaid, Shall be deemed to die intestate, and such child, &c., shall be entitled to such proportion of the estate of the testator, real and personal, as if he had actually died intestate, and the same shall be assigned, &c.” Upon this state of law'and fact, Mr. Bates for the plaintiffs in error, insists, that the meaning of this 20th section is, that the testator shall make a beneficial devise or legacy, and that to mention the name of a child, and declare that child shall have nothing is no provision. On the other side it is argued by Mr. Allen for the defendants, that the intention and meaning of the act is, that when the child is forgotten, then he shall have a share; but that when he is mentioned in the will and excluded, that is a provision within the intent of the section. We are of opinion this latter construction is right. By the first section of the act, all persons except, &c., of sound and disposing mind, are enabled to devise real and’ personal estate to whomsoever they please, and by the 24th sec. it is enacted, “that’all Courts and others con-corned in the execution of last wills and testaments, shall have due regard to the direction of the will and the true intent and meaning of the testator, in all matters and things that shall be brought before them concerning the same.” In this case the intent of the testator is clear and explicit, that the daughter Delia shall have nothing. How can the Court obey this 24th section and at the same time declare that the daughter shall have a full share? This notion that every child must have some-legacy or the will is bad, is not of common law- origin. Bláckstone says the notion of the civil law was, that if a person made a will and disinherited a child, .that he was deficient in duty and the will was bad, but also says such notion has no foundation in the common law, 2 Bl. Com. 503. In 1815, the Legislature of the Territory of Missouri enacted, that when a.person shall make a will and testamentiand omits to mention the name of any child, or shall afterwards marry, or have a child not provided for in such will, such testator, so far as regards such child, shall be deemed, to. die intestate. This provision was taken litteraify from an act passed by the Governor and Judges in 1807. In this act of 1815, we see the Legislature put the case expressly on the ground the testator forgot the child, for they say, if he omits to mention the name of such child, then, &c., why mention the name.

The answer is, because that shows the child was not forgotten. If his name were only mentioned for the purpose of disinheriting him, yet he would he obliged to abide by it. What shows more clearly that not provided for in that act is intended to be only synonymous with forgotten and omitted Is, that in the same sentence in which they mention omit, they say, or after- making the will “shall marry or have a child not provided for,” then such child shall have-distribution as if he had made no will. Such was the law, and 'we think its undoubted meaning in 1825, when it was repealed by the present statute on the subject. We assume it as a proposition undeniable, that up to that time the principle of our láw was, that' when the testator forgot a child, such child should have distribution, and that he could not have it when he was mentioned in the will, but only mentioned for the purpose of disinheriting him. In January, 1825, the Legislature saw fit to take up this same subject again, and have made a new-enactment, in words only, as we- conceive.. The act says, “if any-per— son shall malee his or her last will and testament, and die leaving a child or children, or the descendants of any such child or children not provided for in such will, although such child or children he horn after the death of the testator, every such testator so far as shall regard such child, shall he deemed to die intestate, &c.’’ There, it is believed, no new principle is introduced ; not provided for, are the words used in forensic parlance, we use provision in this sense, where a thing is totally omitted by a statute, we say it is not provided for, and the Legislature often use the expression as provided for by an act concerning, &c., and when we look at the act we see things there relating to the subject in the negative and affirmative, yet we say the thing is provided for. In this case there is a negative provision, that the daughter shall have nothing. We are aware that the mere form of expression is against the meaning we give to the sentence. To provide for means to take care of before hand j but the Legislature hardly meant to establish the doctrine that a testator could not devise his property to whom he might think fit, as they seem to have declared he might do in the first section of the act; and by the 24tb section the true intent of the testator is to govern in all things; now here this intent is clear, and it is at least doubtful what is really meant by the 20th section. Then this clear intent must prevail over a dubious sentence in the law, as to what the testator may or may not do. There are many cases in the law books where the Gourts, on a view of the whole statute, have went against the express words of a statute to carry into effect the intent of the Legislature; and no better illustration can be given of such cases than to examine the case at bar. Suppose in this case the testator had given the daughter 25-cents, this would be a provision. Did the Legislature then intend that each child should have something ? How much better would be her condition with 25 cents, than what is, when it is declared she shall have nothing, is not hard to determine. If this is not what the Legislature did mean, then did they mean each child should have an equal share'? They have no where said so in this act respecting wills,, or in any other act; if they had intended this, would they have used the words they did use ? In eases of intestacy, where the property is equally divided among children, quite other language is used; or did they mean that when a child might for cause or without cause, happen to be the object of its father’s displeasure, the father, although he declared the child should have nothing, yet the child should have an equal portion of his estate. If they meant this, the means used to show this meaning are very weak. Suppose a case, where a testator has only one child, and he declares such child shall have nothing, and then devises all to B, a stranger. Now the law is, as shown above, that a person may, by the 1st sec. of this act, devise to whom he pleases, for no restraint is laid on the devising power, and the law is, that the true intent of the testator shall he carried- into effect, (see 24th sec. of the act,) the will is, that B shall have it, yet the construction contended for by counsel, will give the whole to the child. Bacon says, one rule ior construing statutes is, to suppose one’s self the law maker, and then let the question be stated, did you mean this ? Then such answer as a sensible and moderately well informed man would give, will be the quotient or answer to the proposition. If we try the ease put above by this rule, the answer will he by the law maker, that such was not his intention. From the foregoing arguments, we conclude that the true meaning of the words not provided for, is, that if the testator has forgotten or overlooked any child, he shall, notwithstanding such accident, be let in to have a share. The judgment of the Circuit Court is affirmed.

Tompkins, J.,

dissenting.

Moses Block and others, filed their petition in the Circuit Court of St. Louis county, praying that certain lots lying in the city of St. Louis, might be divided among themselves and others, children of Simon Block, deceased, in equal parts according to the last will of the deceased ; by which will Delia, the wife of said Phineas Block, was expressly excluded from having any part of the estate of the deceased. Phineas Block and Delia, his wife, answered, admitting the facts stated in the petition, but contending that Delia, the wife of Phineas and one of the children of the deceased, not being provided for in the last will and testament of the deceased, and not having had an equal part of the testator’s estate in his lifetime, was entitled to an equal portion of the estate of the testator with the other children of the deceased. The Circuit Court decided against the claim of Phineas Block and his wife 5 and to reverse'this judgment they bring the cause into this Court by writ of error.

The words of the statute are, “ that if any person shall make his or her last will and testament, and die leaving a child or children, or the descendants of any child or children, (in case of their death,) not provided for in such will, although such child or children be born after the death of the testator, every such testator so far as shall regard such child or children, or their descendants) shall be deemed to die intestate, and such child or children, or their descendants, shall be entitled to such portion of the estate of the testator, real and personal, as if he or she had actually died intestate) and the same shall be assigned to him, her or them, accordingly; and all the other legatees, devisees and heirs, shall refund their average or proportional part provided that such child or children, or their descendants, so claiming, shall not have had an equal portion of the testator’s estate bestowed on him, her or them, in the-testator’s lifetime by way of advancement.” Rev. Code, p. 795.

On the pail of the plaintiffs in error it is contended, that the provision required by the act to be made in the testator’s will for the child, must be something substantial, that it is a'mere evasion to say that it is provided in the will that the child shall have? nothing. On the part of the defendants in error it is contended, that the terms used in the act must either mean that each child must have an equal part of the father’s-estate, or he must be allowed to cut the child off by merely naming it in the will and refusing to give him any thing, or a sum- merely nominal. For it is said no one? can tell what will be proper and suitable provision, so much do the world differ in opinion about this matter; all, too, must be accommodated to the value of the estate of the deceased. It is insisted also-, that this construction of the above recited section of the act concerning wills and testaments, (section 20,) is supported by the 24th section of the same act. Rev. Code, p. 796.. This section is in these words: “That all Courts and others concerned in the execution of last wills and testaments, shall have due regard to the directions of the will, and the true intent and meaning of the testator in all matters and things that shall be brought before them concerning the same 5” but the previous section (20th) required the testator to provide for his child, unless he would have it provided for by the law; and as far as he obeyed the law, his will was to be construed under the 24th section and no farther. We are left then where we began, and the question still remains, what is the provision which the act requires a father to make for his child ? If the act required no more at the hand of the testator than that he should name the child in his will, then the old law would have been more intelligible. The old law was this, “when any person shall make his or her last will and testament and omits to mention the name of any child or children, if living, or the legal representatives of such child or children,” &c. See Laws Mo. Ter., December session, 1814, p. 131, or Geyer’s Digest, p. 431. Here language is used, of the meaning of which no doubt can be entertained. Why change the phraseology if no change of meaning was intended ? Or can it be supposed that a Legislature which required a master to maintain and support his manumitted infant slaves, (see Rev. Code, p. 744,) intended to permit the same man, or indeed any other, to cast his infant children on the charity of the community. Vanity and pride may find great difficulty in settling a provision proper to be made by a rich and unnatural father for his child; but if it ever should happen, under the construction of the law contended for by the defendants in error, that such a parent cast his children on the world, the County Courts will be compelled to ascertain how much Of the county funds will be r equired for such purpose. I find no difficulty in so construing the law, as to compel an unnatural father to make a comfortable provision for his children, and still to allow him to provide more liberally for such as either needed or merited a more liberal provision. For instance, if a man’s fortune were moderate and he died leaving many children, some young and unable to work, and others grown up and educated, it would not in many cases be improper to say that those grown up and educated were already provided for, as he might have expended on their education as much as would be left to the younger and weaker, or in the language of the said 20th section, they already had an equal portion of the testator’s estate bestowed upon them byway of advancement. But did no evil exist under the old law to remedy which, a change in the law might have been necessary? With some few exceptions our statutes make a very good will for those who neglect to make one for themselves. But in most of the cases where men die, leaving a will and children by two wives, it may be safely asserted that the children of the first wife are left unprovided for, and under the construction of the statute here contended for by the defendants, will continue to be left unprovided for, unless indeed it be a provision to mention his name in the will by way of reminding him that an unnatural father had remembered in his last moments to leave the last token of unkindness. This is no small evil. Personal property is the favorite of the State. Our legislative bodies, in spite of preconceived prejudices, have been compelled to allow executors and administrators in many cases to sell real property to pay-debts, and to retain the personal. (See Rev. Code, p. 107.) Married women are allowed with certain formalities to sell the lands that descend to them, and when the father dies intestate, in almost every instance the land is sold on application to the Circuit Court, because the quantity is so small that it cannot be divided in kind, without great prejudice to the owners. (See Rev. Code, c. p. 611, sec. 4.) Thus the real estate of the wife becomes personal esla’e and vested absolutely in the husband. Even if a Court of Chanceiy could pursue the money thus raised, and treat it as real property and keep it for the wife’s use, the cost of suits would in many cases amount to as much as the principal. The property then of the first wife, whether it be real or personal, becomes generally the absolute property of the husband ; he marries a second, or perhaps a thiid wife, and the children of the last wife take the whole. The cases of those who may be reduced to want are those which a legislative body might reasonably be supposed to contemplate with most anxiety. Our institutions, -republican in their character, do not seek to extend the empire of the father over the child beyond the age of twenty-one years. If he wish it he must acquire such empire by gentle means. Had the Legislature wished to enable the father to hold the power here contended for, as a rod over an undutiful child, nothing could have been easier than to copy the'old law into the Revised Code; as the statute is now worded I cannot hut conclude that great violence is done to language when this construction is put upon the words not provided for.” In my opinion the judgment of the Circuit Court ought to be reversed.  