author: GRAVES, J.

text:
    G. H. WETTERAU et el. v. FARMERS & MERCHANTS TRUST COMPANY.
    Division One,
    December 30, 1920.
    1. QUIETING TITLE: Particularizing Defendant’s Claim. In an action brought under Section 2535, Revised Statutes 1909, and praying the court to -ascertain and determine the interests of the parties in the real estate involved, the petition may particularize as to the adverse claim of defendant.

      2. STREET IMPROVEMENT: Area Tax: Invalid. Ordinance: Gross Inequalities. An ordinance of. the City of St. Louis, although within the terms of the charter which requires the benefit district to be bounded by two lines, one of which is to be midway between the street to bb improved and the next parallel street on one side, and the other a line half way between the street to be improved and the next parallel or converging street on the other side, is void if it distributes the area tax in grossly unequal proportions, in blind obedience to the charter provision; and where there were parallel streets on both sides of the street to be improvea, but on one side the next parallel street was close to it, and on the other it was almost a half mile to the next parallel street, and plaintiff had a frontage of 254 feet on that side and it was assessed to a depth of 1248 feet, the inequalities were so gross as to render void an area tax of $4,107,19 assessed under the ordinance.
    3. -: -: -: Validity of Charter. The court will not declare void the old charter of St. Louis, which requires a benefit district for levying area taxes for street improvement to extend one half the distance from the street to be improved to the next parallel or converging street bn each side, as violative of the Fourteenth Amendment, but will declare void an ordinance pas'sed in pursuance to said charter provision if, under the physical facts, it fixes, a benefit district wherein gross inequalities of benefit taxes result.
    4. -: -: Cemetery Uses. Evidence that while plaintiff’s property is now used for cemetery purposes, it might, in the near future, have a different use and thereby call for streets to be run through it, is immaterial on the question whether the benefit district was laid off in such a way as to impose a grossly unequal area tax upon said property. The particular use of the property at the time, or its prospective future use, is. not a material question in determining whether the. ordinance fixing the tax according to area imposed gross inequalities upon properties in the benefit district.
    5. -: -: ———: Quieting Title: Lien or Cloud: Evidence. An action to declare title is equitable in character, if it aslts the court to find that a special tax bill is a cloud upon plaintiff’s title and to declare the title to be in plaintiff, free from the lien of such tax bill; and being equitable, it is triable ele novo on appeal, and any evidence improperly admitted by the trial chancellor may be excluded, without a reversal. •
    6. -: Invalid Ordinance: Estoppel. The owner of land does not by signing á petition asking that a certain kind of material be used in paving the street estop himself to question a subsequent ordinance so fixing the benefit district as to impose a grossly unequal area tax upon his property; nor does the fact that he paid two installments of such illegal tax estop him- to attack the validity of the ordinance.
    Appeal from St. Louis City Circuit Court—Hon. William T. Jones, Judge.
    Affirmed.

      Marshall & Henderson and Frank J. Wiget for appellant.
    (1) The circuit court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff. (a) As to the effect upon the property of the plaintiff of the increased growth of population and settlement in the neighborhood of plaintiff’s property. All of the testimony in this respect is purely speculative. The admitted fact remains that the condition of the plaintiff’s cemetery was the same in December, 1914, when the tax bill was issued, as it had been ever since it was. first established in 1857, exeept that plaintiff has lately established a new cemetery just across Gravois Avenue from the old, and that people preferred to buy lots in the new rather than in the old cemetery, (b) As to the history and experience in the City of St. Louis in respect to cemeteries becoming- unavailable by reason of the building up of the neighborhood: All of this was clearly incompetent. The plats and histories themselves were the best evidence of the facts, if the facts themselves were competent in this case, (c) As to the possible prolongation of streets through plaintiff’s property and the -effect thereof on plaintiff’s cemetery, and its availability in the future by reason of the prolongation or possible prolongation of streets through the same. All of this was clearly incompetent. No street had been opened through the cemetery from the time it was established in-1857 to 1914, when Gravois Avenue was improved. (d) As to the number of burials in plaintiffs’ cemetery within recent years. (2) There is no equity in the «bill. Equality in taxation is impossible. Equality of assessment does not apply to local assessments for' improvements levied upon property specially benefited thereby. 37 Cyc. 731; McCutcheon v. Railroad, 72 Mo. App. 275. The inequalities complained of in this case arise from the irregular depths of the lots abutting the improvement. All of the large tracts, with great depths, are similarly affected by the area tax. Many of the smaller tracts have not the same depths. In many instances the next parallel street is closer to Gravéis Avenue than is the case in other instances. There are converging streets in the district, which necessarily affects the area of abutting owners. These conditions are not created by the city, but by the manner in which additions to the city were formerly laid out. All of this produces inequality in the area assessment. But where all persons in the same class are treated alike, there is no inequality. Andrus v. Ins. Co., 168 Mo. 162; 37 Cyc. 731. If all city blocks were laid out in perfect parellelograms, no such inequality would be possible in fixing the area tax. If these' conditions produce irregularities which make the assessment void, then it follows that an area tax is unlawful, and this is true of every city in the United States. Yet an area tax has always been treated by the courts as a legal and just system of assessing benefits for street improvements. 28 Cyc. 1122; Collier v. 'Paving Co., 180 Mo. 362; State ex rel. v. St. Louis, 183 Mo. 237; State ex rel. v. St. Louis, 211 Mo. 591; Construction Co. v. Shovel Co.,' 211 Mo. 524. In short, the ingenuity of man has nevér devised a general or fixed rule for assessing special benefits for the improvement of streets that does not present inequalities. Besides this, “ The requirement of equality and uniformity applies only to taxes in the proper sense of the word, levied with the object of raising revenue for general purposes, and not to such as are of an extraordinary or exceptional kind, or to local assessments for improvements levied upon property specially benefited thereby,” 37 Cyc. 731; McCutcheon v. Railroad, 72 Mo. App. 275. (3) The circuit court erred in holding that the plaintiff is not estopped, (a) The rule is universal that “ if a person by his conduct induces another to believe in the existence of a particular state of facts, and the other acts thereon to his prejudice, the former is estopped, as against the latter, that that state of facts does in truth exist.” 16 Cyc. 680. (b) “Where a person with actual or constructive knowledge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and that others in reliance on such belief alters his position, such person is estopped from repudiating the transaction to the other’s prejudice.” 16 Cyc. 792. (c) Where a .property owner, after the contract was let for the improvement of a street, petitioned the council to substitute artificial, stone for natural stone, as had been provided by the contract, and the city did so, he is estopped to deny the validity of the tax bill. Brick Co. v. Hull, 49 Mo. App. 433. (d) Where an ordinance for an improvement is valid in its general scope, but unreasonable and oppressive as applied to a particular lot, the failure of the owñer of the lot to test the issue of the applicability of the ordinance to his lot before the contractor under annual contract to make the improvement has made the improvements es-tops himself from raising such issue against the contractor in a suit oh the spfecial tax bill. Hernán v. Ring, 85 Mo. App. 231. (4) The fixing of a benefit district and the apportionment of the benefits is a legislative and not a judicial question. Meier v. St. Louis, 180 Mo. 391; Grilsonite Co. v. Fair Assn., 231 Mo. -589; Mexico v. Lake-nan, 129 Mo. App. 180; Prior v. Construction Co.. 170 Mo. 451; Frend v. Asphalt Co., 181 U. S. 324'; Railroad v. Asphalt Co., 191 U. S. 433; Houck v- Drainage Disk, 239 U. S. 263.

      Holland, Rutledge & Laskly and Oliver J. Miller for respondents.
    (1) A single legislative rule for fixing benefit districts in a city for special assessments for street improvements, alike for platted and unplatted districts, by providing that the district line be drawn half way between the improved street and the next parallel street, no matter how far distant that street may be, and, although the property may be subdivided and platted on one side of the improvement so that the next parallel street is far distant, is repugnant to the Fourteenth Amendment to the Constitution of the United States. Cast v. Schneider Granite Co., 240 U. S. 55; Embree v. Kansas City District, 241 U. S. 419; Norfolk Water Co. v. Norfolk, 246 Fed. 650; Withnell v. Bush Const. Co., 243 U. S. 663; Commerce Trust Co. v. Blakely, 274 Mo. 52. (2) An area assessment which distributes a local tax in grossly unequal proportions, not because of special considerations applicable to the parcels taxed, but in blind obedience to a supposed charter rule, is invalid and violates the Fourteenth Amendment of the Constitution of the United States. Commerce Trust Co. v. Blakely, 274 Mo. 52; Gast v. Schneider Granite Co., 240 U.'S. 55; Commerce Trust Co. v. Keck, 223 S. W. 1057. (3) The ordinance and the charter provision on which it is based are void because unconstitutional. If unconstitutional they are void in so far as they affect the area tax of respondents’ land. Cases cited, supra. (4) The location of property in the district and not its use determines its taxability for local improvements. (5) There can be no estoppel as to an illegal tax. Commerce Trust Co. v. Keck, 223 S. W. 1057; Perkinson v. Hoolan, 182 Mo. 189; Mayes v. Adair Co., 194 S. W. 58; Ford v. Phillip, 159 Mo. App. 482; Wheeler v. Poplar Bluff, 149 Mo. 36; McCormick v. Moore, 134 Mo. App. 669; Perkinson v. McGrath, 9 Mo. App. 26. (6) There can be no estoppel against persons who never had the right or opportunity to be heard either with reference to the necessity or extent of the improvement, the boundary of the taxing district or any feature of the tax. ’Collier-v. Paving Co., 180 Mo. 362, 390; Commerce Trust Co. v. Keck, 223 S. W. 1057. (7) The court mil take .ju-. dicial notice of the fact that with the growth of a great city its unsubdivided and unplatted tracts Will be cut up into blocks and lots, and that such tracts used as cemeteries will share and have shared the same fate. 15 Ruling Case Law, 1084; Commerce Trust Co. v. Blakely, 274 Mo. 52; Granite Co. v. Fleming, 251 Mo. 210.
   GRAVES, J.

The petition is in two counts. The first count appears to be under Section 2585, Revised Statutes 1909, in that it prays for a determination of interests in the real estate involved. This count particularizes as to the adverse claim of the defendant, which is not unusual in actions under the statute, and which is permissible under the statute. The adverse claim of the defendant is that it holds certain unpaid, or partially unpaid, tax bills for improvements of a street touching’ the property of plaintiffs. Plaintiffs constitute the Board of Trustees for the German Evangelical Church of St. Paul at St. Louis, Missouri.

There was a proceeding to improve Gravois Avenue from Bates Street to Longborough Avenue. It was improved, and in the course of the proceeding, a benefit district was fixed in accordance with the city charter of the City of St. Louis. Upon the completion of the work special tax bill No. 3655 was issued against the property held in trust by the plaintiffs. In accordance with the charter provisions, one-fourth of the amount was charged upon a front-foot basis, and three-fourths upon ail area basis, and all within the strict letter of the St. Louis charter provisions. The frontage tax, so assessed was $492.56, and the area tax was $4,107.19.

The- tax bill was payable in six installments, two of which were paid prior to this action. The claim by plaintiff is, that as to it, the area tax is invalid, in that it violates the Fourteenth Amendment of the Federal Constitution, and Article II, Section 20, of the State Constitution. It is, in simple terms, an allegation that there was not equal protection to plaintiff, under the laws, both State and Federal. This question, and the question here involved is not unfamiliar to this court. The charge is, in the first count, that such tax hill is an apparent lien upon the property so held by defendants, and we are asked to determine the interests of the respective parties.

The second count is for the recovery of the area tax already paid in the two installments above mentioned. The front-foot portion of the tax. is not questioned, but tender of the remainder thereof is made, and an allegation that the same was refused.

The answer is voluminous, but the questions therein raised are few and simple. These can best be noted in the course of the opinion.

Reply placed in issue the new matter in the answer.

Judgment nisi was for plaintiff, on the first count of the petition, and defendant, the holder of the tax bill, has-appealed.

This shortly outlines the case.

I. The whole trouble in this case grows out of the area tax assessed against the property held by the plaintiffs. As indicated briefly in the statement, the City of St. Louis passed an ordinance for the improvement of • G-ravois Avenue, between Bates Street and Loughborough Avenue. This action was under the old charter of St. Louis, and the ordinance fixing the benefit district was within the terms of the charter provision, which provision has been before this court so often that it is a familiar face-. Under it, is drawn the lines of a benefit district; the city authorities, when they came to a block of land, as is involved here, were authorized to included in the benefit district such portion of such tract, as would fall within two lines, named in the charter provisions. That is to say, the charter provisions contemplated that one line would be the street to be improved, and the other line (fixed for determining area) would be a line half way between-the street improved, and the next parallel or converging street. This on the theory, as was time here, that these were parallel, or converging streets on both sides of the street to be improved. If these were not parallel or converging streets upon both sides, then another rule prevailed, not necessary to mention here. The property of plaintiffs had a frontage of 254 feet on Gravois Avenue, and was (for area ■tax) assessed to a depth of 1,248 feet, the half way line between Gravois avenue, and Morgan Ford road, the next parallel street, some half mile from Gravois. By the old charter it was contemplated that- one-fourth of the improvement, cost should be on the front-foot basis, and throe-fourths on the area basis of the district of benefits to be formed. The plaintiffs contend that this fixed a ratio of 1 to 3, but in' this they may be in error. For the vital questions in this case, this matter is only incidental. In the instant case the frontage tax was $492.56, and the area, tax $4,107.19, making the ratio 1 to 9 rather than 1 to 3. The district area, however, might include property not fronting, and therefore those ratios are only incidentally of value here. The real question here is the inequalities, in areas for taxation occasioned by the ordinance, fixing the. benefit district, following in literal terms the provisions of the charter, Article VI, Section 14, of the Revised Code of St. Louis (1921) by Rombauer, p. 365-6.

We have passed the point wherein we can say that gross .inequalities in' area taxes, or assessments for benefits, can be overlooked upon the theory that absolute equality cannot be secured in cases of this kind. [Gast Realty & Inv. Co. v. Schneider Granite Co., 240 U. S. 55.] We cannot expect absolute equality, but we must not tolerate such gross inequalities as will amount'to “distributing a local tax in grossly unequal proportions, not because of special considerations applicable to the parcels taxed, but in blind obedience to a rule that requires the result.” [See Gast case, supra.] It is not necessary to go into the details of the inequalities of the area tax called for by the ordinance before us. It will suffice to say that an examination of the plat showing the areas within the taxing’ district, or benefit district, if yon so'desire to call it, are as grossly disproportionate as in the Gast case, supra. There were parallel or converging streets upon both sides of Gravois Avenue, but upon one' side they were close to Gravois Avenue, whilst on the other side, where plaintiff’s property was located, it was a half mile to the parallel or converging street. This physical fact made wide divergencies in the areas to be taxed, and in the area taxes which followed.

It is true that we will not declare the old St.Loms charter void, as violative of the Fourteenth Amendment of the Federal Constitution, but we will declare an ordinance, passed in pursuance of the charter provisions void if, under the physical facts, the ordinance fixes a benefit district wherein gross inequalities of benefit taxes results. [Ruecking Const. Co. v. Withnell, 269 Mo. 546.] Such a case we have before'us, and we must rule, in obedience to the rule in Gast’s case, that so much of the ordinance before us as fixed the area tax in this benefit -district is void, as violative of the constitutional provision, supra.

This would end the case, but for other matters urged by appellant, which we will note. .

II. Complaint is made about the admission of certain evidence tending to show that whilst the property of plaintiffs was now used as a cemetery, it might, 'in the near future, have a different use, an¿ thereby call for streets to be run through the same. This testimony is not material on the question considered in the paragaph preceding. The particular use of the property, at the time, nor the prospective future use, can add but little light upon the real question at issue. Whilst this action is one to declare title, it is really equitable in -character, because ,in declaring title the court is asked to find that this tax bill is a cloud upon plaintiff’s title, and to remove such cloud, and declare absolute title, in trust, to be in plaintiffs, all of which was done. In equity we can here discard the improper evidence, and determine the case upon such evidence as we think was properly admitted. So there is no substance in the objections to admitted evidence.

III. It is further contended that the plaintiffs are estopped from denying, the validity of the ordinance. This plea is dependent upon the following facts. January, 14th public hearings were had before the Board of Public Improvements, on the theory that it was proposed to improve Gravois Avenue by the use of wooden blocks for the street pavement. February 13, 1914, the property owners, including one of the plaintiffs, who signed the name of the cemetery association by him as president, petitioned the Board of Public Improvements to have the street improved by the use of vitrified bricks instead of wooden bricks. All this was before the passage of the ordinance for the improvement of Gravois Avenue.

On March 4, 1914, the ordinance' was passed, Nothing in the petition signed by plaintiffs authorized a grossly disproportionate fixing of the area taxes to be paid for the improvement. This petition referred to th,e class of material to be used, and nothing further, Plaintiffs did thereafter pay two installments of the combined' tax. By this, we' mean that the payments .covered both the front-foot tax and the area tax. Upon these facts rest the pleaded estoppel. .

These facts do not show estoppel. Had all of the plaintiffs signed the petition for vitrified brick, rather than wooden blocks, there would have been no estoppel from the act. In such case they had the right to assume that a valid, lather, than an invalid, ordinance would be passed. These acts were not such as would amount to estoppel. [Commerce Trust Co. v. Keck, 223 S. W. l. c. 1057; Perkinson v. Hoolan, 182 Mo. l. c. 194.]

Nor is the act of paying two installments of the illegal area tax one 'which will estop the plaintiff from denying the validity of the remaining area tax. [Perkinson v. Hoolan, supra, and Mayes v. Adair County, 194 S. W. l. c. 59.] The mere act of paying a part of an invalid tax, standing alone, does not constitute estoppel. This defense will not avail defendant in this case.

IV. The foregoing covers all substantial issues in this case. Since the case of Gast Realty & Inv. Co. v. Schneider Granite Company, 240 U. S. 55, a case taken up from the judgment of this court, this court has has been more limited in its pronouncements as to special tax cases' from the City of St. Louis. Whilst the Federal court did not hold the St. Louis charter provisions void, it did hold that its strict application in some cases would produce such unjust and unequal.résults, as would bring the particular ordinance under the ban of the Fourteenth Amendment. It ruled the ordinance void in the Gast case, and for the same reason we must *so rule the ordinance void in this case, in so far as the area tax is concerned.

The case was well tried nisi, and the judgment will be affirmed.

All concur.


source: Caselaw Access Project

author: SMALL, C.

license: Public Domain

text:
    ALLIE L. WOOLEY v. JOHN T. HAYS et al., Appellants.
    Division One,
    December 30, 1920.
    1. WILL: “To My Lawful Heirs:’’ Per Capita or Per Stirpes. Testator, a bachelor, having three brothers and seven nephews and nieces by three deceased sisters, by his last will gave and bequeathed his property “to my lawful heirs, share and share alike.” L Held, that he devised the property per capita and not per stirpes, and that the three brothers and the seven nephews and nieces took a one-tenth interest each in-the estate.
    2. -: Interpretation: Oral Testimony. A will' is required to be in writing, and therefore parol testimony as to what the testator said as to his intention, either before or after the will is made, or as to what the scrivener meant by the words used, is incompetent.
    3. -: -: Lawful Heirs: Latent Ambiguity. The use of the words “to my lawful heirs” in the will devising testator’s property creates no latent ambiguity. The word “lawful heirs” are certain in their meaning; in fact, the Statutes of Descents and Distribution fixes and defines their meaning.
    4. -: -: Circumstances. The circumstances surrounding the testator when he had made his will, such as the amount and character of his property, his relations with his kindred who are the natural objects of his bounty and their situation, are admissible -in evidence for the purpose of placing the court as nearly as may be in the testator’s shoes, so that his true intent and meaning, shown by his will and viewed as he viewed it. can be ascertained and followed.
    5. -: -: Aided By Other Cases. Precedents are of little value in the interpretation of a will, because each will and the circumstances under which it was made are generally different from every other will and the circumstances surrounding its maker. But the primary meaning of certain words and phrases by repeated ruling may become so fixed as to compel the conclusion reached in other cases that they were used in the will in - hand in their established sense.
    6. -: “To My Lawful Heirs:” “Share and Share Alike:” Class. It is well established that where the testator devises his property to ‘ ‘ my heirs, ” or to “ my lawful heirs, ’ ’ without more, they take per stirpes or per capita the same, as if the testator had died intestate. But where the devise is to the testator’s heirs or lawful heirs, “share and share alike,” or where other words imparting an equal division are used, the “heirs” or “lawful heirs,” although related in different, degrees of consanguinity to the testator, as brothers and sisters and nieces and nephews, are treated as constituting but one class of devisees, who will take per capita. unless by the will they are separated into different classes, or' it uses other expressions showing a different intent.
    7. -: -: -: Intent: Statute. The statute (Sec. 583, R. S. 1909) commanding that “all courts and others concerned in . the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator,” requires the court to disregard mere technicalities and artificial rules of construction, and to follow the real spirit and intent of the testator, as shown by the whole will and the circumstances; but it also requires that every word and phrase of the will be given effect, lest its intent and meaning be missed, and unless the court is satisfied that no special effect was intended to be given to a particular word or phrase and its use was a mere formality signifying nothing, or its meaning was qualified or neutralized by other provisions, it must be given its usual legally esta,bished meaning-.
    8. -: -: -: -: Circumstances. Where testator’s three brothers were old men and financially well provided for, and the children of three of his deceased sisters were young and comparatively poor, and the grandchildren of another deceased sister named Barber were well provided for, it cannot be held that the sole purpose of his will, by which he devised all his property to “my lawful heirs, share and share alike, except John W. Barber and William F. Barber, heirs of my sister Clarissa, who I give the sum of one dollar each, they having been amply provided for,” was to simply disinherit the Barber boys, and to permit his property to descend otherwise per stirpes, but not per capita, although he made no special legacies; but by devising his property generally to his lawful heirs, share and share alike, his intention was .to attach to the words used their usual, legally established meaning, which was that the three brothers and the seven children of the three deceased sisters were placed in one class, and each took an equal portion or, one-tqnth of his estate.
    Appeal from Nodaway Circuit Court.—Hon. John M. Dawson, Judge.
    Affirmed.

      Cook & Cummins for appellants.
    (1) The evidence of H. "W. Montgomery as to the instructions given to him by the testator for drawing the will and as to the declarations made, to him by the testator as to what disposition he intended to make of his property, was all competent and was therefore improperly excluded. Riggs v. Meyers, 20 Mo. 243. It is well settled law that for the purpose of determining the object of the testator’s bounty or the subject of disposition or the quantity of interest intended to be given by his will, the court may inquire into every material fact relating to the person who claims to be interested under the will and the property which is claimed as the 'subject of dispisition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling it to identify the property or thing intended by the testator, or to determine the quantity of interest he has given by his will. Wigram on Wills, 51; Creasy v. Alverson, 43 Mo. 13; Thomson v. Thomson, 115 Mo. 56; Gordon v. Burris, 141 Mo. 602; Willard v. Darrah, 168 Mo. 660. In every case the court is entitled to be placed in pos-. session of all the information which is available of the circumstances of the estate and family of the testator when he made his will, to the end that the court may be in his situation as nearly as may be and may interpret and understand the will as he would if he were living and his will be not .defeated by the palpable error of the scrivener. McMahan v. Hubbard, 217 Mo. 638-40; Willard v. Darrah, 168 Mo. 667. In the last mentioned case for the purpose of identifying a devisee parol evidence of the scrivener, who wrote the will, was admitted to solve a latent ambiguity, produced by extrinsic evidence in the application of the terms of the will to the object of the testator’s bounty. Its effect is Pot to establish an intention different in essence from that expressed in the -will, but to let in light to effectuate the will and true intent and meaning of the testator. Willard v. Darrah, 168 Mo. 672; McMahan v. .Hubbard, 217 Mo. 638. The intent of the maker in either a deed or will, should govern rather than technical rules of the law. His intent is the pole star of construction. Johnson v. Calvert, 260 Mo. 442; R. S. 1909, sec. 583. Many cases at the present time are breaking away from the strict and inflexible rule and are allowing the use of evidence to show in what sense the testator used the words. 14 Encyc. Evidence, 511,; Kohl v. Frederick, 115 Iowa, 517; Robb’s Estate, 37 S. C. 19; Smith v. Kimball, 62 N. H. 606; Gould v. Chamberlain, 184 Mass. 115; Hoffner v. Custer, 237 111. 64; Wolfe v. Hathaway, 70 Atl. (Conn.), 645; In re Wheeler, 32 App. Div. 183, 52 N. Y. Supp. 943. (2) A latent ambiguity arises when the writing upon its face appears clear and unambiguous but there is some collateral matter which makes the meaning uncertain. 17 Cyc. 676. Farol or other extrinsic evidence is always admissible to explain a latent ambiguity in any written instrument. The reason given for the rule is that as the ambiguity is raised by .extrinsic evidence, the same kind of evidence must be admitted to remove it. Í7 Cyc. 676-7; Schreiberv. Osten, 50 Mo.'516. (3) In the construction of wills, though we are not to disregard authority of decisions as to the interpretation, the construction of them is so much governed by the language, arrangement and circumstances of each particular instrument, which is usually very unskillfully and incoherently drawn, that adjudged eases become of less authority and are of more hazardous application than decisive upon any other branch of the law. 4 Kent, Com. 534, 535; Lomax v. Lomax, 6 L. R. A. (N. S.) 954. That rule permits the use of extrinsic evidence to explain a latent ambiguity after it is made to appear. Mudd v. Cunningham, 181 S. W. 388-9; Riggs v. Meyers, 20 Mo. 243; Willard v. Darrah, 168 Mo. 670; McMahan v. Hubbard, 217 Mo. 640. (4) The true intent and meaning of the testator can be best ascertained by the courts and those concerned in the execution of wills by putting themselves, so' far as may be in the place of the testator and reading all his directions therein contained in the light of his environment at the time it was made. Hall v. Stephens, 65 Mo. 670; Noe v. Kern, 93 Mo. 373, Suydam v. Thayer, 94 Mo. 33; Munro v. Collins, 95 Mo. 33; Small v. Field, 102 Mo. 104; Long v. Tims, 107 Mo. 512; Murphy v. Carlin, 113 Mo. 117.

      Shinabarger, Blagg & Ellison for respondents.
    (1) The court did not err in excluding and rejecting the testimony of the scrivener, H. W. Montgomery, as to the instructions given him by the testator, and the testimony of James T. Hays as to declarations of the testator made shortly after the execution of the will, because all this testimony was hearsay, and tended to contradict and impeach the written will and to substitute therefor the parol testimony of these two witnesses in violation of Sec. 537, R. S. 1909, which prescribes the formalities to be observed in the execution of a will, (a) The intention of the testator must be gathered from the four corners of the will itself, without recourse to extrinsic evidence,, unless the language of the instrument is ambiguous, or provokes an ambiguity when applied to the external facts—and even then the evidence is admissible only to explain the will, and not to contradict it. 30 Am. & Eng. Ency. Law (2 Ed.), pp. 673-81; 40 Cyc. 1427-36; Gibson v. Gibson, 219 id. W. (Mo.) 565; Middleton v. Dudding, 183 S. W. (Mo.) 443; Griffith v. Witten, 252 Mo. 641; Brown v. Tuschoff, 235 Mo. 456; Lehnhoff v. Theine, 184 Mo. 357; Roberts v. Crume, 173 Mo. 579; Krechter v. Grope, 166 Mo. 391; Webb v. Hayden, 166 Mo. 46; Hurst v. Yon De Yeld, 158 Mo. 247; McMillan v. Farrow, 141 Mo. 62; Garth v. Garth, 339 Mo. 452; Mersman v. Mersman, 136 Mo. 256; Nichols v: Boswell, 103 Mo. 157; Thompson v. Ish, 99 Mo. 170; Hall v. Stephens, 65 Mo. 677; Ashbury v. Shain, 191 Mo. App. '672; State ex rel. v. McYeigh, 181 Mo. App. 582; Snyder v. Toler, 179 Mo. App. 381; Missouri Baptist Sanitarium v. McCune, 112 Mo. App. 337. (b) The will contained no ambiguities, patent or latent. (2) The expression “lawful heirs” means the same as heirs at law or heirs. Hockaday v. Lynn, 200 Mo. 471; Harrell v. Hagan, 147 N. C. 113, 12 Am. St. 539; Wool v. Fleetwood, 136 N. C. 460, 67 L. R. A. 444; Stisser v. Stisser, 235 111. 207. (a) The word heirs has a definite meaning. In Re Cupples Estate, 199 S. W. (Mo.) 556, 557; Tevis v. Tevis, 259 Mo. 37; Waddle v. Frazier, 245 Mo. 401; Rosier v. Graham, 146 ÍVIo. 360: Jarboe v. Hay, 122 Mo. 354. (b) And when used in a will the word “heirs” is to be given its usual legal significance except where the context compels some other interpreta ■ tion. 30 Am. & Eng. Ency. Law (2 Ed.), p. 671.; 40 Cyc. 1459; Gillilan v. Gillilan, 212 S. 'W. 355; Tevis v. Tevis. 259 Mo. 37; Eckle v. Ryland, 256 Mo, 447; Brown v. Tuschoff, 235 Mo. 449; Roberts v. Crume, 1.73 Mo. 572; Records v. Fields, 155 Mo. 321; Drake v. Crane, 327 Mo. 103; Emmerson v. Hughes, 110 Mo. 630; Maguire v. Moore, 3.08 Mo. 273; Walker v. Peters, 339 Mo. App. 688. (c) The fact that two living persons, John W. Barber and William F. Barber, are excepted from the class desinated by the will as “lawful heirs,” does not call for an interpretation of the word “heirs” different from iff usual legal significance. Minot v. Harris, 132 Mass, 529: Keeler v. Exrs.' of Keeler, 39 Yt. 556. (d) A devise to “heirs” or the members of one designated class “share and share alike” entitles the individuals indicated to take per capita, or equaffy. 30 Am. & Eng. Ency. Law (2 Ed.), pp. 731-3; 40 Gyc. 1490 1492-4; Allison v. Chaney, 63 Mo. 284; Preston v. Brant, 96 Mo. 552; Maguire v. Moore, 108 Mo. 267; Rixev v. Stuckey, 129 Mo. 377; Garesche v. Levering Co., 146 Mo. 436; Records v. Fields, 155 Mo. 324; In re Mays, 197 Mo. App. 555; Bisson v. West Shore Railroad, 143 N. Y. 125; Kling v. Schnellbeckev, 107 Iowa, 636; Johnson v. Brodino, 108 Iowa, 594; Knutson v. Yidders, 126 Iowa, 511; Kean’s Lessee v. Hoffecker, 2 Harr. (Del.) 103, 29 Am. Dec. 342; Farmer v. Kimball, 46 N. H. 435, 88 Am. Dec. 219; Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 722; Dukes v. Faulk, 37 S. C. 255, 34 Am. St. 745; Mooney v. Purpus, 70 Ohio St. 57. (3)/Even if the will be regarded as ambiguous or of doubtful meaning, only such extrinsic evidence was admissible in aid of its construction .as would throw light on the situation and surroundings of the parties and thus enable the court to scan the will from the testator’s point of view. The testator’s intention must be ascertained from the will, scrutinized in the light of surrounding circumstances, and if from these a meaning is not discoverable such mean ing cannot be supplied by testimony as to what the testator said his inteñtions were. Mudd v. Cunningham, 181 S. W. (Mo.) 386; Snyder v. Toler, 179 Mo. App-. 376.
   SMALL, C.

Appeal from the Circuit Court of Nodaway County.

In this suit for partition, there is but one question for our determination, and that is, whether, by the will of John G. Hays, bachelor, deceased, he devised the lands to his three brothers and the children of three of his deceased sisters, per capita as contended by plaintiff, or per stirpes, as contended by defendants. The deceased had a fourth sister, Clarissa, who was also deceased, and left two children, John W. and “William P. Barber, to whom the testator gave the sum of one dollar, “they having been amply provided for.” There is no* controversy as to this provision of the will.

The will tó be construed, omitting the formal introduction and the last clause appointing the executors, is as follows:

“After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give and bequeath to my lawful heirs, share and share alike. Except John W. Barber and “William P. Barber, heirs of my sister, Clarissa, who I give the sum of one dollar each. They having been amply provided for.”

The defendants in their answer set up that it was the intention of the testator that the three brothers and the children of the three deceased sisters should take per stirpes; that the will was written during the last illness of the testator, and within a few hours of his death. That W. H. Montgomery, a banker and friend of the deceased, drew the will and was not familiar with the technical meaning of legal phrases. That the testator informed the scrivener that he desired his estate equally divided among his brothers and sisters, except as to his deceased sister, Clarissa, whose heirs were to have one dollar each, because they were already provid-.. cd for. That said scrivener undertook to follow the testator’s instructions and to .so word the will as .to divide the estate in six equal parts among the testator’s three brothers and three deceased sisters, and that said scrivener believing that the three living brothers and three deceased sisters would, in law, constitute the lawful heirs of the testator, and for the purpose of carrying out the instructions of the testator wrote the will in the words hereinbefore sot out, and the testator executed said will in the confident belief that the meaning of the words of his will was such as, in law, would carry out his intention to divide his estate into six equal parts, one share to each of his three living brothers and one share to the respective heirs of each of his three deceased sisters. That by the use of the words “lawful heirs” in the will, such intention of the testator was not clearly expressed, and such failure was caused by the mistake of the testator and the scrivener as to the technical meaning of the words “lawful issue.” "Wherefore, the defendants prayed that the will be construed to devise the property per stirpes, and that it be so divided, etc.

On the trial, W. H. Montgomery, over the plaintiff’s objections and subject'to the reservation on the part of the court to strike out his testimony if the court concluded it was inadmisssible, testified substantially as follows on direct-examination: That the testator told him that “he wanted his property divided among his family, with the exception of John and Will Barber, who were provided for as it was, and that when he ‘ (Montgomery) wrote the will and used the words ‘lawful heirs’ he used the words to designate the brothers -and sisters of John'G-. Hays, testator, and was attempting to caiuy out the instructions of said Hays, as he understood them, and witness put the words ‘lawful heirs’ in said will to mean the brothers and sisters of said Hays, or their representatives.”

On cross-examination, the witness said: He did not know whether testator’s sisters, except the one (Belle) who died without issue, were dead or not at the time the will was written.

“Q. The point about it all is, that the directions that he gave you, as I understood your testimony, , prior to the making of this will, was that he wanted his property to go to his family? A. Yes, sir.

“Q; And you wrote the will and wrote it as it is here in evidence? A. Yes, sir.

“Q. And read it over to him, and he said it was all right without any changes? A. I didn’t change it any.

“Q. Didn’t I understand you to say that you asked him if it was all right? A. He said it was. There was no change made in the will.”

James Hays, a brother of the deceased, under same objection and reservation, testified: That immediately after making the will, the testator talked to him about it, and said, “It is all fixed, Jim. I cut out the Barbers. I want my estate to go to my brothers and sisters.”

The evidence further showed that besides the two Barber boys, grandchildren of the testator’s deceased sister, Clarissa, the testator left the following nieces and nephews: Mrs. A. C. Barber, only child of his deceased sister, Ann Coston; Allie L. Wooley, Ernest Hudson and Lillie Ferrell, only children of testator’s deceased sister, Mary Hudson; Richard Coston, Edith Baker and Mabel Bateman, only children of testator’s deceased sister, Mattie Coston. Testator’s surviving: brothers were: William R. Hays, James T. Hays and Joseph Hays. Joseph Hays was of unsound mind and in the insane asylum. The testator was about 72 years old at the time of his death and at the date of his will, February 19, 1916. He died in St. Louis, where he had gone on business and was suddenly taken ill and died of pneumonia. He was a farmer and lived on his farm with the family of the son of his brother Jatues, about one mile and a half north of Skidmore, Nodaway County. He lived there with his nephew about a year before he died; prior to that, his maiden sister, Belle, who died in 1915, kept house for him. None of the children of Mrs. Hudson lived in Nodaway County when testator died. One of them, Mrs. Wooley, lived in Kansas City, and another, Lillie Farrell, lived near Weston, Missouri, and the son lived somewhere north. They had been gone from Nodaway County from three to five years. They were on good terms with the testator. He went to see them several times. Two of the Mattie Coston children lived in Colorado, and one in the State of Washington. The two girls were married and had families; the boy was hot married. Mrs. A. C. Barber, the only child of testator’s sister, Ann Coston, lived at Skidmore. Testator was on friendly terms with his three brothers, as well as with Mrs. Barber. They visited one another frequently. Testator cared for his twin brother, Joseph, who was of unsound mind, most of the time, after he became insane, and had been his guardian. James T. was Joseph’s guardian part of the time, and secured a pension and increase of pension for him, of $18 per month. Joseph’s board cost $20 per month. The other two brothers, James and William, were comfortably situated financially. One of them, James, had seven children and four grandchildren. The other, William, had four children. Joseph was a bachelor and had nothing but his pension. The nieces and nephews, except the Barber boys, were in comparatively poor circumstances.

The abstract of the record does not show the value of the property of the deceased, but in their statement of th'e case, appellants’ learned counsel say, that he left a large tract of land in . Nodaway County, which respondent’s learned counsel say was worth, after paying all debts, about $45,000.

The circuit court in rendering its decree struck out the testimony of Montgomery as to the directions of the testator and his understanding and intention in the use of the words “lawful issue” in the will, and also struck out that part of the testimony of James T. Hays showing the declarations of the testator as to how he had disposed of his property by his will. Thereupon, the court ruled that in and by said will the estate in question was divided per capita, and that each of the testator’s brothers and each of his nieces and nephews received the same portion thereof, to-wit, one-tenth.

Failing to obtain a new trial, defendants appealed to this court.

I. A will is required to be in writing, and therefore' parol evidence as to what the .testator said as to his intention, either before or after his will is made, is clearly incompetent. Consequently, the lower court made no error in striking out the oral testimony of the witnesses, Montgomery and James T. Hays, which it excluded. [Hurst v. Von De Veld, 158 Mo. l. c. 247.]

In the cases cited by learned counsel for appellants, to-wit, Riggs v. Myers, 20 Mo. 243; Creasy v. Alverson, 43 Mo. 13; Thomson v. Thomson, 115 Mo. 56; Cordon v. Burris, 141 Mo. 602; Willard v. Darrah, 168 Mo. 660, and other cases, parol testimony was permitted to identify the property of the testator' or the correct name of a devisee, so as to put the court in the testator’s position in order to interpret the words of his will correctly. No parol testimony of what the testator said as to his intention or what the scrivener meant by the words used in the will was admitted. To admit such testimony would be to permit wills to be made by parol and would, in effect, repeal the statute requiring them to be in writing.

Nor do the words “lawful heirs” create any ambiguity—latent or otherwise. Those words are as certain in their meaning as any words of the English language can be. Indeed, the Statute of Descents and Distribution very clearly fixes and defines their meaning. Consequently, direct parol eAddence, such as was offered helow, Avas not admissible to explain or vary their import or use in the will in this case.

II. But the circumstances surrounding the testator Avhen he made his will, such as the amount and character of his property, his relations with his relatives who were the natural objects of his bounty, and their situation and circumstances, were admissible to place the court as nearly as may be in the testator’s situation so that his true intent and meaning, as shown by his will, viewed as he viewed it, can be ascertained and followed as required by our statute, Section 583, Revised Statutes 1909. [Hall v. Stephens, 65 Mo. 677; McMahan v. Hubbard, 217 Mo. 638-40; Willard v. Darrah, 168 Mo. 667.]

III. It is true, that in will cases precedents are of little value, because each will and the circumstances under which it was made, are generally different from every other will and made under different circumstances. But the primary meaning of certain words and phrases by often repeated rulings of the courts may become so fixed as to compel the belief that in other cases such words and phrases were used in their established sense. The .whole difficulty in this case arises from the use of the words ‘ ‘ share and share alike ’ ’ in the second clause of the testator’s will. It seems that it is well established by the decided cases that where the testator devises his property to “his heirs” or “lawful heirs,” without more, they take, per stirpes or per capita, the same as they would had the testator died intestate. [30 Am. & Eng. Ency. Law (2 Ed.), p. 730, and cases cited.] But, where the devise is to the testator’s “heirs” or “lawful heirs,” “share and share alike,” or using other words importing an equal division, the “heirs” or “lawful heirs,” although related in different degrees to the testator, as brothers and sisters and nieces and nephews, are treated as constituting but one class of devisees who will take equally per capita, unless by the will they are separated into different classes, or there is something in the will showing a different intent. [30 Am. & Eng. Ency. Law (2 Ed.), p. 731, and cases cited; 40 Cyc. 1490; Records v. Fields, 155 Mo. 314, 324-5; In re Mays, 197 Mo. App. 555, 560-64; McIntire v. McIntire, 192 U. S. 116; Kling v. Schnellbecker, 107 Iowa, 636; Johnson v. Bodine, 108 Iowa, 594; Kalbach v. Clark, 133 Iowa, 215; Kean’s Lessee v. Hoffecker, 2 Harr. (Del.) 103; Farmer v. Kimball, 46 N. H. 435; Dukes v. Faulk, 37 S. C. 255; Mooney v. Purpus, 70 Ohio St. 57; Laisure v. Richards, 103 N. E. (Ind.) 679; Ramsey v. Stephenson, 34 Ore. 408; Walker v. Webster, 95 Va. 377; Richards v. Miller, 62 Ill. 417; Hill v. Bowers, 120 Mass. 135.] The rule is illustrated by the decision of this court in Records v. Fields 155 Mo. 314; supra. Thére, the will provided that the testator’s property should be “equally divided between the heirs of William and James, deceased,” both of whom were brothers of the testator. It was held that two classes of devisees were created; one, the heirs of William; and the other, the heirs of James; and they each took half of the estate; bnt that the children and grandchildren of William constituted but one class as between themselves and took equally per capita. In In re Mays, 197 Mo. App. 555, supra, the' St. Lonis Court of Appeals had occasion to consider the law on this subject quite thoroughly, and announces its conclusion, in which we concur, on page 561, as follows: “The common law rule prevailing throughout this country [is] to the effect that the settled legal construction of the words ‘equally to be divided,’ or equivalent terms, when used in a will, are to cause an equal division of the property per capita, and not per stirpes, whether the devisees be children and grandchildren, brothers or sisters, or nieces and nephews, or strangers in blood to the testator.”

IV. Appellants do not seriously deny that this is the usual rule established by the case-law, but contend that under our statute, Section 583, Revised Statutes 1909, which commands that “all courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them,” an extra injunction is placed upon the conscience of the court to disregard mere technicalities and artificial rules of construction and follow the real spirit and intent of the testator, as shown by his whole avíII and the circumstances. In this we concur. But, every word and phrase must also be given effect lest we miss the true intent and meaning of the testator—unless, indeed, we are satisfied that no special effect was'intended to be given to a particular word or phrase and its use was a mere formality signifying nothing, or its meaning was qualified or neutralized by other provisions of the will, which Ave cannot find is the case here.

It is suggested, in this case, that the sole purpose of the testator in making a will at all Avas simply to disinherit the two Barber boys, because*they were otherwise amply provided for, and that but for this fact the testator would have made no will, but permitted his property to descend according to law, in which case his lawful heirs would have taken per stirpes and not per capita; that he intended to make no change in the lawful course of distribution of his property after his death except as to the two Barbers; that he made no special legacies nor bequests whatever, but devised his property generally to his lawful heirs, share and share alike, and thereby intended it to go to them share and share alike per stirpes and not per capita. While the argument is plausible, it is not sufficiently firmly founded on the language of the will and the circumstances of the testator to take this case out of the general rule noted in the preceding paragraph of this opinion. Indeed, the language of the clause devising the property to his lawful beirs ‘ share and share alike,” except the two Barbers, who shall only receive one dollar, in itself bears some indication that the testator thought they would get an equal share under his will with the rest of his heirs, unless they were excluded. But, however that may be, clear it is, that they were excluded because they were “amply provided for.” The will expressly so states. The evidence shows that his surviving brothers were fairly well off financially, except the insane one, who had a pension which was nearly sufficient to support him at the asylum. He was an old man nearly 72 years'old, needed little in his unfortunate condition, and would not need-that little long. His “per capita” or one-tenth share, or $4,500, would with his pension, comfortably attend to his wants, no doubt, the remainder of his days. But all the nieces and nephews, except the Barbers, with all of whom, as well as his brothers, he was on perfectly good terms, were young and comparatively poor. Showing, as his will does, on its face, that he did not mean to give to them “that had” but to them “that had not,” we are unable to say that the testator did not attach to his words, “lawful heirs, share and share alike,” their usual legally established meaning, so that his nieces and nephews would each get an equal share with his brothers. We are, therefore, constrained to and do hold, that at the time he made his will he intended to have his “lawful heirs” take equally per capita, as a single class of devisees, and there is ■nothing in any provision of the will or the surrounding circumstances to the contrary. It is possible he would have distributed his property per stirpes or differently than he did had he taken further time and thought, but death was hurrying him out of the world when he made liis will, and after having it read over, he signed it, and let it go—as it was written. We cannot disturb it now.

The judgment of the circuit court is affirmed.

Brown and Ragland, CC., concur.

PER CURIAM:—The foregoing opinion of Small C., is adopted as the judgment of the court.

Blair, P. J., Graves and Goode, JJ., concur; Woodson J., dubitante.