#### Ida Crecelius, Respondent, *v.*Henry Horst et al., Appellants.

May 4, 1880.

1. In construing a will, the testator’s intention governs, and that construction should be given which prevents a failure of the gift.

*2. A*devise to a class, though as tenants in common, will not lapse by the death of one of the devisees before the testator, but the survivors take the whole.

Appeal from the St. Louis County Circuit Court, Edwards, J.

*Reversed and dismissed.*

E. *&*E. L. Gottschalk, for the appellants :

The intention of the testator governs in the construction of wills.— *Turner*v. *Timberlake,*53 Mo. 371; *Gaines*v. *Fender,*57 Mo. 346 ; *Oarr*v. *Dings,*58 Mo. 406 ; *Smith*v. *Hutchinson,*61 Mo. 83; *Allison v. (Jlarey,*63 Mo. 279. This being a residuary bequest to a class of persons, — viz.: to. the children of his first wife, — the death of one of said residuary legatees before that of the testator, causes no lapse of said bequest, but the survivor answering the description of the class, takes the *whole*residue. — 2 Redf. on Wills, 175, sect. 30 ; *Jackson*v. *Roberts,*14 Gray, 546 ; *Schaffer*v. *Kettell,*14 Allen, 528.

J. A. Beal, for the respondent:

A legacy to two persons, *52one of whom dies before the testator, lapses and is distributed as in cases of intestacy. *—Martin*v. *Lachasse,*47 Mo. 591; 2 Williams on Ex. 1083, 1084. Where the bequest is to several persons as tenants in common, thei’e is no right of survivorship. — 2 Eedf. on Wills, 168, sect. 17.

Hayden, J.,

delivei’ed the opinion of the court.

This is a suit in ejectment. The case was submitted to the court below on an agreed statement of facts, from which it appears that William Crecelius was the owner, in fee, of the land in controversy ; that by his first marriage he had two children, Catherine, one of the defendants, and John William; and by his second marriage one child, Ida, the plaintiff; that his will, after the preliminary clause, was as follows : “I give and bequeath to my daughter Ida the sum of one dollar. My wife, Theresa Crecelius (formerly Donald), shall only be entitled to such share in my estate as the laws of Missouri allow her, and no more. I give and bequeath all the residue and remainder of my estate, real, personal, and mixed, which may be left after the payment .of my just debts, funeral expenses, and this dower right of my wife, to my children, John William Crecelius and Catherine Christine Crecelius, to have and to hold the same unto my said children, their heirs, and assigns forever, share and share alike.” The testator then appoints an executor.

John William Crecelius died without issue in 1872, at his father’s house, and while a member of the family. The testator died in 1874, leaving his widow, the mother of Ida, the plaintiff, and two surviving children, Ida, and the defendant Catherine. The widow elected under the statute to take a child’s share in the estate. The court below found the issue .for the plaintiff, ascertaining her interest as one-fourth part, found the value of the rents, and gave judgment accordingly.

If the intention of the testator is to be the controlling guide in construing this will, the plaintiff should not recover. *53Apart from any technical rule, that intention, as between the parties here concerned, is plain. The first sentence of the will proper embodies that language which is the typ-' ical expression of an intention to disinherit. The second sentence confirms the first by the use of language towards the mother of the plaintiff, the wife of the testator, which shows the feeling which the testator cherished towards this branch of his family. She is to receive what the law allows her, and no more. The testator then turns to a distinct class of persons, whom the language of the will itself places in antagonism with his second wife and her daughter. The objects of the testator’s bounty are this second class, who. are, indeed, spoken of by name, but who are described as his children. These form a distinct class, being his children by his first wife, and to this class all the residue and remainder of his estate is given.

It is true that in this residuary disposition of his property, the two children are to take share and share alike, and that thus they would take as tenants in common, not as joint tenants. Gen. Stats. 1865, p. 443, sect. 12; *Hall v.*Stephens, 65 Mo. 676. But the facts of this case are very-different .from those of the cases cited. The question is here between the survivor of a class who were made residuary devisees, and not an heir generally, or a specific devisee, but one who was' expressly disinherited by the testator. On the one hand are the objects, and the only objects of the testator’s bounty. On the other, is one'as to whom are used only words of exclusion. To hold that the devise to John William lapsed, and his share went to the next of kin, would here doubly defeat the testator’s intention. It is perfectly clear that the testator intended to dispose of all of his property by will, for all is disposed of by one residuary clause. This intention is defeated, if we suppose a lapsed devise. But here the supposition of a lapse would result in making the plaintiff the recipient of the testator’s property, when he, by apt and express words covering the *54whole ground, excluded her from being such. The reasons which induced the decision in *Jackson*v. *Roberts,*14 Gray, 546, apply with added force to this ease. Though the children of the first wife were named by the testator, and not described merely as a class, the intention in the case at bar, that nothing should go to the plaintiff, is beyond all doubt. The fact that the present was a devise of real estate, and not a legacy, cannot affect the intention, while the circumstance that it was a residuary devise strengthens the case of the defendants.

As the doctrine that a testamentary disposition lapses, by the death of the devisee, in the lifetime of the testator, is often productive of hardship, and frequently tends to defeat the intention, the doctrine is not now extended beyond the cases which fall clearly within the rule. *Martin*v. *Lachasse,*47 Mo. 592. The doctrine is, moreover, opposed to the leading principle that a testamentary disposition should be so construed as to prevent the gift from failing, and here again militates against the modern guide, the intention of the-testator, and tends to produce the anomaly of partial intestacy. Heuce the greater disposition to inquire, not merely whether the testator named the individuals, but. whether from the whole will it appears that he regarded them, and intended to provide for them as a class, and not merely as individuals. Where a disposition is made to a class, though as tenants in common-and not joint tenants, the death of one or more'of the devisees, before that of the testator, will not cause a lapse, but the survivors will take the whole property. *Jackson*v. *Roberts, supra; Schaffer*v. *Kettell,*14 Allen, 528*; Stires*v. *Van Rensselaer,*2 Bradf. 172 ; *Viner*v. *Francis,*2 Cox Ch. 190; *Cort*v. *Winder,*1 Coll. 321; *Lee*v. *Pain,*4 Hare, 250.

To the objection that whatever the intention was, at all events the testator did not, in fact, dispose of the share of John William, but after the death left it as a lapsed devise, the reply is, that it is the intention which governs ; that the *55will, in effect, classifies its objects ; that it prefers the children of the first wife, of whom the defendant is the survivor *;*and that, moreover, the burden is upon the plaintiff, who is expressly excluded, to make out her title, else the case is with the defendants.

. The judgment is reversed and the cause dismissed.

Judge Bakewell concurs ; Judge Lewis is absent.