author: BOND, C. J.

text:
    THE STATE ex rel. BRUENTING REALTY COMPANY et al. v. WILLIAM O. THOMAS, Judge of Circuit Court, et al.
    In Banc,
    April 26, 1919.
    1. CONDEMNATION: Of Existing Viaduct: Incidental Rower. A provision in the charter of Kansas City, empowering the city by ordinance to establish, construct and maintain, for public use, any viaduct, bridge, or approach thereof or right-of-way therefor, upon the payment of just compensation to the owners of property taken for such purposes, is broad enough to include the incidental and implied power to condemn and acquire, for a public thoroughfare, land on which is an existing viaduct and the viaduct itself, now owned and operated by private persons as a toll way.
    2. -: -: Property Already Dedicated to Public Use. A viaduct or passageway, owned by a private corporation, which charges tolls for its use, though located within the corporate limits of a city, is not dedicated to a public purpose, and consequently the contention that .'the city cannot condemn property to public use which is already dedicated to a public purpose, is not applicable.
    2. -: Property Subject To: Personalty. Complex property, consisting of realty and personalty, franchises, leaseholds, etc., belonging to the owner of a viaduct, and every species of property the public needs may require and the government cannot lawfully • appropriate, are the subject-matter of condemnation for public use.
    4. -: Previous Agreement As to Value. An offer of sale to the city by the owners of the property authorized by the ordinance to be condemned, at a named price, is not conclusive upon the court or jury in ascertaining its value, and does not forestall a condemnation proceeding.
    5. -: Use By Street Railway. Provision in the condemnatory ordinance for the future use by a street car company of the viaduct to be acquired by the city, is no objection to the city’s right to maintain the proceeding. Such use does not change the public ownership or control of the property condemned.
    6. -: No Benefit to Property Assessed. The necessity, expediency and propriety of taking private property for public use through the exercise of the power of eminent domain are determinable by the municipal assembly of Kansas City, and whether the designated benefit district is specially benefited by the acquisition of a viaduct and the establishment of a thoroughfare is, by the charter, a question for the jury.
    7. -: Procedure: Prohibition. Prohibition lies only to prohibit a court from exercising a jurisdiction it does not possess or from exceeding its jurisdiction, and cannot be used to correct errors of law or to prohibit the court from committing such errors, and therefore the Supreme Court cannot on prohibition prescribe for the circuit court under what section of the city charter it should assess with benefits the particular property to be acquired in a condemnation proceeding. If the circuit court commits error in that respect the remedy is by appeal or writ of error.

      Prohibition.
    Writ quashed.

      Reinhardt & Schibsby for plaintiffs.
    (1) The city has no express power under the charter to condemn an existing viaduct and railroad and pay therefor by special assessments. Kansas City Charter, art. 1, sec. 1, pp. 95, 96, 97; art. 13, sec. 1, pp. 398 to 443; art. 6, see. 1, p. 252; art. 6, sec. 2, pp. 254, 255; art. 6, sec. 3, p. 260 ; art 6, sec. 17, pp. 279, 280; art. 8, sec. 28, pp. 351, 352; Kansas City v. Hyde, 196 Mo. 498. (2) The city does not have implied power to condemn an existing viaduct and railroad and pay therefor by special assessment. DeGeofroy v. Merchants Bridge Terminal Ry. Co., 179 Mo. 719; Kansas City Charter, art. 6, sec. 17, pp. 279-280; Kiley v. Oppenheimer, 55 Mo. 376; Leach v. Cargill, 60 Mo. 316; Westport v. Mastin, 62 Mo. App. 647; West v. Porter, 89 Mo. App. 153; St. Louis v. Koch, 169 Mo. 587; Dillon on Mum. Corp. (5 Ed.) secs. 237, 238, 1024, 1377, 1402; St. Louis v. Laughlin, 49 Mo. 568; St. Louis v. Kaime, 180 Mo. 320. (3) The city cannot condemn property for public use already dedicated for the same purpose. St. Louis v. Moore, 190 S. W. 867. (4) The city and the viaduct company have agreed upon a price for the viaduct contrary to the express provision of the charter, that a jury must ascertain and assess the damages. (5) The city is attempting to use its power of eminent domain to acquire private property to let and lease to private parties. (6) This is not a special benefit to the property in the benefit district, but an indirect method to raise money for the acquisition of the viaduct.

      John G. Park also for plaintiffs.
    (1) The power to impose special assessments is purely statutory and must be strictly construed. Leach v. Cargill, 60 Mo. 316; St. Louis v. Koch, 169 Mo. 587; Westport v. Mastin, 62 Mo. App. 647. Where the law is of doubtful meaning, the doubt must be resolved in favor of the taxpayer and against the board or sovereignty attempting to levy the tax. St. Louis v. Realty Co., 259 Mo. 126. (2) The only plain, explicit provision for the special assessments for viaducts is Charter, art. 8, sec. 28, p. 351. The word “constructing” in that section is the equivalent of “purchasing” or “providing.” State ex rel. Crow v. St. Louis, 169 Mo. 31; Schwabe v. Moore, 187 Mo. App. 79; City of Lincoln v. St. Ry., 67 Neb. 469; Gamble v. Water Co., 123 N. Y. 91, 9 L. R. A. 527; Thompson v. Railroad, 3 Sandf. Ch. (N. T.) 625; Seymour v. Tacoma, 6 Wash. 138; Ostrander v. Salmon, 20 Ida. 153. (3) The special scheme or plan provided in article 8, section 28, is preclusive. St. Louis v. Kaime, 180 Mo. 317; State ex rel. v. Clifford, 228 Mo. 194; St. Louis v. Transfer Co., 256 Mo. 476; Ackerman v. Green, 201 Mo. 231.

      E. M. Harder, City Counselor, M. A. Fyke and J. C. Petherbridge, Assistant City Counselors, for defendants.
    (1) The Legislature has expressly conferred upon Kansas City the power of eminent domain. Secs. 9754, 9762, R. S. 1909. The charter expressly provides for the condemnation of property, real, personal or mixed, for public purposes, and to pay for such’property by special assessments. Sec. 1, art.' 1, Charter 1908; Pars. 2 and 3, sec. 1, art. 3, Charter 1908; Art. 6, Charter 1908. (2) A municipality, like Kansas City, operating under a special charter, has all the necessary implied powers to fully carry out and effectuate its express powers. Water Co. v. City of Aurora, 129 Mo. 575; State ex rel. v. Walbridge, 119 Mo. 383; Chambers v. St. Louis, 29 Mo. 543; Hafner v. St. Louis, 161 Mo. 34; Haeussler v. St. Louis, 205 Mo. 656; 4 McQuillin, Munic. Corp. pp. 3080', 3084; Cunningham v. Ponca, 27 Okla. 858. (3) The property sought to be condemned is not dedicated for public use-in law or in fact; it is a private enterprise owned, operated and maintained as such by private parties for hire, over which the municipality has no jurisdiction and in which the public has no interest and cannot use and enjoy except on payment of the sum exacted by the private owners thereof. Although the property may be devoted to a public or semi-public use for hire by private parties, as in this case, yet it may be condemned by the city for the same or another public use, if it is in the interest- of the public to do so. The private right must yield to the public interest in such matters. 4 McQuillin, Munc. Corp. pp. 3131, 3136; Tacoma v. Nisqually Power Co., 57 Wash. 420; West River Bridge Co. v. Dix, 6 How. (47 U. S.) 507; Re Brooklyn, 143 N. Y. 596; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685. (4) The ordinance on which the proceeding is based is not indefinite and uncertain; nothing could be more specific and definite, as to( just what the city is trying to do. Under the ordinance, the city is seeking to acquire by condemnation proceedings, for public use, only such property, real, personal and mixed, franchises, easements, contracts and leasehold interests, which are authorized by its charter and the law. Sec. 1, art. 1, Charter 1908; 4 McQuillin, Munc. Corp. pp. 3125, 3126; Christy’s Adm’r. v. St. Louis, 20 Mo. 143; Cooley’s Const. Lim. (3 Ed.) sec. 526; Pittsburg C. C. & St. L. Ry. Co. v. Wolcott, 162 Ind. 399; Lewis Em. Dom. (3 Ed.) sec. 412; Stein v. Chesapeake & Ohio Ry. Co., 132 Ky. 330; Pac. P. Telegraph & Cable Co. v. Oregon Ry. Co., 163 Fed. 969; State v. Sheffield & Thompsonville Bridge Co., 81 Conn. 56; Re Brooklyn, 143 N. Y. 596; Red River Bridge Co. v. Clarksville, 33 Tenn. (1 Sneed) 176; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Cooley’s Const. Lim. (5 Ed.) sec. 341. (5) Use by street cars is not illegal or. improper. Haeussler v. St. Louis, 205 Mo. 684. (6) Special benefits are questions of fact for the jury. Par. 4, sec. 3, art. 6, p. 260, Charter 1908. (7) If the city has the power to construct a viaduct, then it has the power to acquire one already constructed, if suitable for public use by the municipality. Schwabe v. Moore, 187 Mo. App. 74; State ex rel. v. St. Louis, 169 Mo. 31 Akers v. Kolkmeyer, 97 Mo. App. 520; Thompson v. Railroad, 3 Sandford Ch. (N. Y.) 656; Gamble v. Water Co., 1231 N. Y. 91; City of Lincoln v. Lincoln Ry. Co., 67 Neb. 480; West River Bridge Co. v. Dix, 6 How. (47 U. S.) 507; Long Island Water Co. v. Brooklyn, 16'6 U. S. 685; Re Brooklyn, 143 N. Y. 596; Brady v. Atlantic City, 53 N. J. Eq. 440; Dick v. Scarborough, 73 S. C. 150. (8) Improvements on lands condemned are a part of the realty and must be paid for as such and in' the same manner as the lands. Kansas City v. Morse, 105 Mo. 519; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Finn v. Gas & Water Co., 99 Pa. St. 631; Mills on Em. Dom. 223. (9) The necessity, expediency or propriety of acquiring private property for public use through the exercise of the power of eminent domain, by a municipality, is a legislative function for its legislative body to determine and perform and is not a judicial question for the courts to decide, unless the legislative body has acted fraudulently or corruptly. Kansas City v. Bird, 98 Mo. 215; Kansas City v. Mastín, 169 Mo. 80’; St. Louis v. Brown, 156' Mo. 545; Aldrich v. Spears, 101 Mo. 400; City of Hannibal v. Railway Co., 49 Mo. 480; Cape Girardeau v. Houck, 129 Mo. 607; Field v. Barber Asphalt Co., 194 U. S. 6118; De Witt v. Duncan, 46 Cal. 342; Lent v. Tillson, 72 Mo. 404; Wolzen v. San Francisco, 101 Cal. 15; Ill. Cr. Co. v. Chicago, 141 Ill. 586; Ellison v. Allen, 62 N. Y. S. 274; Durham v. Rigsbee, 141 N. C. 128; Chicago & N. W. Ry. Co. v. Cicero, 154 Ill. 656; Chicago & A. R. Co. v. Pontiac, 169 Ill. 155; Chicago & N. W. Ry. Co. v. Morrison, 195 Ill. 271; Dunlap v. Mt. Sterling, 14 Ill. 251.
   BOND, C. J.

On December 12, 1918, the city of Kansas City passed an ordinance to condemn certain lands, rights-of-way, and a steel, iron and concrete viaduct constructed thereon, extending from Minnesota Avenue in Kansas City. Kansas, to and connecting Bluff Street at the intersection of Sixth Street, in Kansas City, Missouri, known as the Inter-City Viaduct. The total length of the main structure is one mile and a half, and the length of the approach is eighteen hundred and fifty-eight feet.

Provision has been made in Kansas City, Kansas, to acquire that portion of the land, rights-of-way and viaduct thereon lying in the State of Kansas for use as a public street and trafficway.

In the present proceeding Kansas City, Missouri, is seeking to acquire that portion of the viaduct and property on which it is located, which lies in the State of Missouri, for use as a public street and trafficway, so that by the two proceedings in the two states a free public highway shall exist between the two cities.

The property and structure sought to be appropriated cost about three millions of dollars. It could not be duplicated to-day for less than about four millions. The two cities and the property owners have carried on negotiations for converting it into a public trafficway, which culminated in October, 1918, in a proposal by the owners of the property to sell it to the two cities for $1,775,900, fifty-six per cent of which was to be paid by Kansas City, Missouri, and forty-four per cent to be paid by Kansas City, Kansas. Thereafter to achieve public intercommunication between the two cities by the appropriation of this viaduct, an ordinance. authorizing its condemnation was enacted by Kansas City, Missouri, and filed as the basis of that proceeding in Division Number Four of the Circuit Court of Jackson County, .Missouri. The machinery of that court being thus set in motion (Kansas City v. Smith, 238 Mo. 1. c. 330), certain persons owning property in the benefit district fixed by the ordinance moved .to dismiss the proceeding, upon the overruling of which the present application was filed by them to prohibit the said court from further proceedings for alleged lack of jurisdiction.'

Owing to the importance of the matters involved, the circuit judge before whom the case was pending in Kansas City, Missouri, and the City of Kansas City and its counsel filed an answer entering their appearance, waiving the issuance of a preliminary writ, consenting that the petition might he treated as an alternative writ, and praying a special hearing of the matter on the merits and alleging, in said answer, among other things, the proper institution of proceedings to condemn, the issuance of an order of publication, notifying all persons concerned that the cause was returnable January 25, 1919, for the purpose of impaneling a jury as provided in the charter of said city.

The answer further alleges that the property sought to he condemned is owned by a viaduct company, under a franchise running for thirty years,- that said company filed in the circuit court its answer and waiver of right to remove the viaduct and improvements located on the lands sought to be condemned for a public street and trafficway by the ordinance filed in that court, and consenting that the property might he condemned by Kansas City, Missouri, as prescribed in its ordinance upon payment of just compensation. The answer further avers:

“5. That the power of ominent domain possessed by Kansas City and the various provisions of its charter relating to such matters, and the laws of Missouri give to said city full and complete power to condemn the property in question as and for a public street and highway; that Division No. Four of the Circuit Court of Jackson County, Missouri, at Kansas City, has jurisdiction of the parties and the subject-matter in said proceedings and has full power, authority and jurisdiction, under the charter of Kansas City, and the Laws of this State, to proceed to try and determine the matters and things in said cause, and that said court has full power, authority and jurisdiction to impanel a jury of six disinterested freeholders of Kansas City, as it did on the 25th day of January, 1919, in- said proceeding, for the purpose of ascertaining and determining the damages and benefits, and has full power and jurisdiction to hear evidence in said cause and proceed to award damages and assess benefits as proposed and contemplated therein against the property defined in said proceeding; that the city not only possesses the power to condemn and appropriate for public use a private viaduct already constructed, but that it has power, in said proceeding, to levy and assess the cost thereof upon the various tracts and parcels of land in the benefit district described and set forth in said Ordinance No. 35,965. That said structure as it now stands is not a public highway, but a private highway, owned and operated by private parties, for which they charge a toll to whoever uses it; that said structure is suitable and usable as a public highway, connecting as it does with a public street in Kansas City, Missouri, and with a public street in Kansas City, Kansas, and if acquired by the two cities, as contemplated, it will be the main public thoroughfare and highway between said cities, which can and will be used by the public as a public street and thoroughfare by pedestrians and all kinds of vehicles, between the two cities.
“The rentals from the use of said viaduct by the street car company will not go into the general funds of the city, but that the same will go into a special trust fund for the purpose of repairing, keeping in repair and the reconstructing of the viaduct whenever needed, as shown by copy of Ordinance No. 35,267 of Kansas City, Missouri, authorizing such contract; a copy of said ordinance is hereto attached and marked Exhibit No. 2 and made a part hereof; á copy of said contract is hereto attached and marked Exhibit No. 3 and made a part hereof.
“Defendants deny that Kansas City, Missouri, has entered into a contract with the owners of the viaduct for the purchase thereof, at a stipulated figure, which in any way could possibly bind the court or jury in determining the true value of said property and the just compensation to be paid therefor, and that all that Exhibit D, attached to plaintiff’s application, amounts to is a mere proposal only on behalf of the owners of the property, to take so much for it, if paid within a certain time and upon certain terms. The amount so. fixed in said written option or proposal amounts merely to an offer to sell the property for that amount, and does not necessarily, and cannot under the Kansas City Charter, and the law, bind the court or jury in fixing the amount of compensation to be paid for said property, in said proceedings sought to be condemned.
“Defendants further answering, deny the alleged legal effect of each, all and every statement, allegation and averment in said application made or contained.
“Wherefore, defendants having fully answered, pray that a writ of prohibition herein be denied and plaintiff’s application and petition be dismissed.”

On the filing of. this answer, the applicants for prohibition in this court moved for a judgment thereon and that the temporary writ of prohibition be made absolute.

I. It is insisted by relators that there is a distinction between the acquisition of property by Kansas City for condemnation proceedings for the construction of a viaduct, and the acquisition of property uPon which a viaduct has already been con-constructed for the use of the same as a public street or trafficway. According to the theory of relators, the city has no power to levy assessments for the latter purpose, although it would have full power to establish a benefit district and tax the property comprised therein for the purpose of acquiring by condemnation land whereon to erect a viaduct for use, as a public thoroughfare.

Powers of a municipal corporation are derived from its charter and consist (1) of express grants, (2) powers necessarily or farily implied in or incident to those expressly granted, and (3) powers essential to accomplish objects for which the municipal corporafcion was created and established. [Dillion, Municipal Corporations (5 Ed.), sec. 237.] These specifications of the powers of public corporations have been uniformly approved in this State. Hence any exercise of the faculties of a municipal corporation falling within either of these definitions and classifications, must he held valid. Under the Constitution (Sec. 6, art. 12) and the statutes (R. S. 1909, secs. 9764, 9762, 9688) and the charter of Kansas City (K. C. Char. 1908, sec. 1, art. 1, pars. 2, 3 ; sec. 1, art. 3, and art. 4), Kansas City, Missouri, is invested with the power of eminent domain for the condemnation of property for public purposes and invested with power to' levy special assessments for that purpose. All these sources of authority are within the judicial cognizance of this court. Section 1 of Article 6 of its charter empowers Kansas City to provide by ordinance for the establishment, construction and maintenance for public use, any via* duct, bridge or approach thereof or right-of-way therefor, upon the payment of just compensation to the owners of the property taken for these purposes, to be ascertained by a jury of six disinterested freeholders. It is, therefore, beyond question (and is conceded by relators) that Kansas City would have power by condemnation, to acquire the land on which to build a viaduct for public purposes. We see no valid reason why it is not an obvious corrollary of this principle that it should have the power to acquire by the same method, property whereon a viaduct is situated which is suitable in every way as a public thoroughfare. If it might acquire the land and levy assessments to pay for it and also for the erection of a superstructure, why could it not pursue the tantamount alternative of condemning both land and a proper viaduct thereon? How could the owners 'of property within the benefit district be hurt, provided the existing viaduct was acquired at a sum not greater than it would cost to build a new one? The charter expressly authorizes condemnation to establish and maintain a “viaduct.” The method proposed in the present instance accomplishes the same public object. Why is it not, therefore, strictly within the scope of the powers of a municipal corporation, which enables it to do anything which is implied in or incidental to the powers expressly granted or essential to the purpose of its organization? Things that are substantially alike cannot be essentially different. No injury could be inflicted by the present proceeding, which would not be suffered if the land alone had been condemned. The verdict of th’e jury as to the actual value of both the land and the viaduct will determine the amount of benefits assessable. It cannot be assumed that such verdict as to the value of the viaduct will exceed the sum for which another could be built. Hence that verdict will furnish a complete protection to all property owners in the benefit district.

Our conclusion is that the present proceeding in the circuit court will work no injury to the owners of property in the benefit district, and that it is within the implied and incidental powers granted in the charter of Kansas City.

II. Having reached the conclusion that the city (Kansas City, Missouri) is vested with’ the implied power under its charter to institute and conduct the proceedings for condemnation of the property described in its ordinance, it is only necessary to rule upon the other contentions made by relators in support of the present application. Among these is the suggestion that the city cannot condemn property for public use, which is already dedicated to a public purpose. It is enough to say in answer to this, that the record conclusively shows that the viaduct in question is not dedicated to a public purpose, but is a passageway owned by a private corporation which charges a toll for its use.

It is also suggested that the ordinance is indefinite and uncertain. The object of the condemnatory ordinance is the acquisition by the city of complex property consisting of real and personal prop-erty> franchises, leasehold interests, etc., belonging to the owner of the viaduct. That these are the subject-matter of condemnation is clear under the following statement of the law:

“Every species of property which the public needs may require and which government cannot lawfully appropriate, under any other right, is subject to be seized and appropriated under the right of eminent domain. Lands for public ways, timber, stone and gravel with which to make or improve the public ways; buildings standing in the way of contemplated improvements, or which for any other reason it becomes necessary to take, remove or destroy for the public good; streams of water; corporate franchises; and generally, it may be said, legal and equitable rights of every description, are liable to be thus appropiated.” [Cooley, Const. Limit. (3 Ed.) see. 526; Christy’s Admr. v. St. Louis, 20 Mo. 143; Lewis Eminent Domain (3 Ed.), sec. 412; Cooley, Const. Limit. (5 Ed.) p. 341.]

A careful consideration of the terms of the ordinance satisfies us that they are reasonably certain in intent and import and susceptible of practical enforcement.

It is further suggested that the city and the viaduct company have agreed as to'the value of the prop-, erty to be condemned and therefore nothing is left for the jury to ascertain or to assess. The record shows that an offer of sale of the property at a fixed price, apportionable between the two cities of the respective states, has been made This is not conclusive upon the court or jury in ascertaining the value of the property. Neither is the provision of. the ordinance for the future use of the public trafficway by a street car company open to objection. It has been expressly decided that such a use does not change the public ownership and control of the property condemned. [Haeussler v. St. Louis, 205 Mo. l. c. 684.]

As to the claim that the designated benefit district is not specially benefitted by the improvement purposed, the answer is that that question is for the WW under the charter of Kansas City. The necessity, expediency and propriety of taking private property for public use through the exercise of the power of eminent domain, in cases like the present; is determinable by the local legislature of the particular municipality desiring to make the improvement, in the absence of fraud or corruption. See cases cited in defendant’s brief.

III. The learned counsel for the property owners in the benefit district (who are not parties to the record and who appeared by permission) concedes the right of the city to acquire the existing viaduct by condemnation proceedings under its charter and “to impose special assessments to pay for it,” the only contention made on th'eir behalf being that the trial court should order an assessment of the property in pursuance of the provisions of -Section 28 of Article VIII of the Charter of Kansas City.. The present application being one for prohibition lies only for want or excess of jurisdiction on the part of the trial court. Any errors of law which it might make or which might occur in its rulings in the course of the proceedings sought to be prohibited, are not correctible by a writ of prohibition, but could only be reviewed on appeal or writ of error. It is not the province of this court, in an application like the present, to indicate tp the trial court in advance what steps it should take, in the exercise of the jurisdiction rightfully lodged in it, to conduct a condemnation proceeding on the part of the city to enforce the ordinance originating it. We have held that it has jurisdiction so to do, under the provisions of the charter of Kansas City. In the exercise of that jurisdiction the trial court is free to exercise its own judgment in the first instance as to the interpretation, construction and application of the provisions of the charter of Kansas City governing the assessments of benefits. The points made by the learned counsel as to the preclusive applicability of the particular section (Sec. 28, Art. VIII, Char. K. C.) is one, therefore, which must he addressed primarily to the learned trial judge. It is not to he assumed that he will fall into error in disposing of that question; hut should he do so, we could not stay his hand by our writ of prohibition without confusing a want or excess of jurisdiction with the erroneous exercise of rightful jurisdiction. The fact that we have decided there was no lack of jurisdiction nor excessive exercise thereof by the institution of the suit of Kansas City to acquire the existing viaduct ■ (which conclusion is conceded to he correct by the learned, counsel who has intervened) makes it our duty to relegate the cause to the trial court for further proceedings not inconsistent with the views herein expressed.

It necessarily results that the preliminary writ of prohibition granted in this case must he quashed. It is so ordered.

All concur except Woodson, J., not sitting.


source: Caselaw Access Project

author: BOND, C. J. PER CURIAM:

license: Public Domain

text:
    GRATIA B. GILLILAN, Appellant, v. LORENZO GILLILAN et al.; ANNIE F. CARR et al., Appellants.
    In Banc,
    May 16, 1919.
    1. PRIMOGENITURE: Fee Tail: Oldest Son: Statute. If the will devised land to a son and the heirs of his body subsequently born and there were no such heirs and in consequence the estate on the ■son’s death reverted to the testator’s estate, the land did not vest in the testator’s oldest son or his oldest son. The land so devised when it reverted to the common source did not, by the statutory abolition of fee tails, descend to the oldest son by the rule of primogeniture. The statute (Sec. 2872, R. S. 1909) in declaring that, after the death of the person who by the common or statute law of England might be seized in fee tail in lands, “the remainder shall pass in fee simple absolute to the person to whom the estate-tail would, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the eommon law,” cannot be held to be a recognition of the rule of primogeniture. ' That rule has long been abolished in this State.
    2. WILL: Estate Tail: Converted Into Fee Simple by Failure of Issue. Testator by the fifth clause of his will devised certain land “to ihy son. George W. Gillilan and to his heirs hereafter born to him; this devise however, in behalf of my son George W. Gillilan shall be to the exclusive use and benefit of my son George and the heirs of his body hereafter born, excluding his present wife, Martha I. Gillilan and her three children, Orna V., Anna F. and Independent N., from all benefit or interest or part whatsoever in my estate; I do hereby to make my will' clear of all doubt declare that it is my intention, and I do hereby disinherit and exclude the said Martha I. Gillilan 'and her three children, from all interest or part whatever in my estate.” Held, that the words employed. created an estate in fee tail special in George and the heirs of his body thereafter born, and consequently upon the death of George without such issue his will devising the land to his second wife was inoperative, since he had only a life estate; and the contingent remainder to the unborn heirs lapsed and reverted to testator’s estate, and since he, by a subsequent residuary clause of the will devised the remainder of his estate to his two sons, the said George, and John D., in equal parts, he devised to them such reversionary estate, of which one-half went to the children of George by his wife Martha, subject to the dower rights of the second wife.
    3. -; _.-: -; Defeasible Estate: Heirs for Children: Intention. A devise to a son and “to the heirs of his body hereafter born to him” for the “exclusive use and benefit of my said son and the heirs-of his body hereafter born,” and specifically “excluding his present wife and her three children” and declaring “it is- my intention and I do hereby disinherit his present wife and her three children,” did not create a defeasible estate in fee in the son which became absolute upon failure of subsequent issue to him, nor can the word “children” be substituted for the word “heirs” and by that substitution the devise be held to be a defeasible estate to the son which became absolute when no children were thereafter born. The word children may be substituted for heirs where such substitution is necessary to carry out the paramount purpose and dominant thought of the testator manifested by the language employed; but where the intention is clear and unmistakable, as is this case, no such substitution is permissible.
    4. -: Contingent Remainder: Lapse: Reversion, Where a will by one clause devises land to a son and the heirs of his body thereafter born, the contingent remainder to the unborn heirs, upon failure of issue, lapses, and the estate reverts to the testator, which by a subsequent residuary clause may be devised to named devisees.
    5. -: -: -: Presumption of Further Devise. The presumption that the testator, having made a devise of specific property, did not intend, upon the lapse thereof, to make a further devise, does not arise when he did, in fact, by a residuary clause make such further devise.
    6. -: Reversionary Estate. A reversionary estate is the subject of a valid devise.
    Appeal from Daviess Circuit Court. —Hon. Arch B. Davis, Judge.
    Affirmed.

      E. M. Harber, A. G. Knight and J. W. Peery for appellant Gratia B. Gillilan.
    (1) The words “heirs” or “heirs of the body” will be construed to mean children whenever the context shows that such was the intention of the testator or of the grantor. The manner in which the words are used in the fifth clause of the will in question show clearly that they mean children. Waddell v. Waddell, 99 Mo. 345; Heady v. Hollman, 251 Mo. 638; Eckle v. Ryland, 256 Mo. 424; Maguire v. Moore, 108 Mo. 272; Fanning v. Doan, 128 Mo. 323; Rothwell v. Jameson, 147 Mo. 601; Cross v. Hoch, 149 Mo. 341; Brown v. Tuschoff, 235 Mo. 458; Johnson v. Calvert, 260 Mo. 454; 4 Words and Phrases (1st Series), pp. 3269-3270; 2 Words & Phrases (2 Series), pp. 840-850; 2 Words & Phrase'S (2 Series), pp. 861-864 ; 2 Underhill on Wills, par. 616; Adair v. Adair, 30 Ky. Law. Rep. 856. (2) The fifth clause of the will being read as a devise to George W. Gillilan and his children thereafter born to him, there are several views which may be taken under the authorities as to the interest devised to him. (a) There are cases in this State which hold that under a devise he would take the fee as tenant in common with the children thereafter born. Hamilton v. Pitcher, 53 Mo. 334; Allen v. Claybrook, 58 Mo. 124; Hall v. Stephens, 65 Mo. 670; Reed v. Painter, 129 Mo. 680. (b) Under the following cases it could well be argued that he took the fee irrespective of whether children were born. Rines v. Mansfield, 96 Mo. 394; Small v. Field, 102 Mo. 104; Tygard v. Hartwell, 204 Mo. 200; Rothwell v. Jameson, 147 Mo. 601; Carter v. Long, 181 Mo. 701. (c) The true rule, however, is that he took á defeasible fee subject to be divested upon the birth of children; and as none were born it remained in him. Tindall v. Tindall, 167 Mo. 218; Davis v. Ripley, 194 Ill. 390; Boehm v. Baldwin, 221 Ill. 59; Reed v. Welborn, 253 Ill. 338; Rothwell v. Jameson, 147 Mo. 601. (3) The law favors the vesting of estates and in the absence of words expressing a clear intent to the contrary the estate will be construed to vest at the earliest possible time and immediately upon the testator’s death. Tindall v. Tindall, 167 Mo. 255; Deacon v. Trust Co., 271 Mo. 687. (4) A testator will not be presumed to have intended to create an estate-tail which is forbidden by statute if any other reasonable construction can be given to the will. Combs v. Eversole, 23 Ky. Law Rep. 932. (5) If the court should hold that the fifth clause of Nathan Gillilan’s will did create an estate-tail (and we contend it did not), then we concede that the interest in reversion therein would pass under the residuary clause of the will, and the decree of the trial court should in that case be affirmed. 40 Cyc. 1950; Youngs v. Youngs, 45 N. Y. 254; High’s Estate, 136 Pa. St. 222; Moran v. Moran, 65 Am. St. 443, 39 L. R. A. 204; - Givens v. Ott, 222 Mo. 395; Sandusky v. Sandusky, 261 Mo. 351.

      Clinton A. Welsh for appellant Ann F. Gay.
    (1) The will of Nathan Gillilan, did not devise the five hundred acres of land in clause 9 of said will to either John D. Gillilan or George W. Gillilan, as residuary devisees. Hunter v. Patterson, 142 Mo. 321; Utter v. Sidman, 170 Mo. 299; Hatton v. Jones, 133 N. C. 399; Tiedeman, Real Property, sec. 885; 2 Woerner A. L. Admr., 967; 2 Cooley’s Blackstone, 112-114; -Sec. 2876, R. S. 1909; Buxton v. Kroeger, 219 Mo. 225; Christ v. Kuehne, 172 Mo. 119; O’Day v. Meadows, 194 Mo. 588; Aldridge v. Aldridge, 202 Mo. 565; Burris v. Page, 12 Mo. 359; Kinney v. Mathews, 69 Mo. 520; Phillips v. LaForge, 89 Mo. 72; Bone v. Tyrell, 113 Mo. 182; Gray v. Ward, 234 Mo. 291; Hall v. French, 165 Mo. 430; Chew v. Keller, 171 Mo. 225; See. 578, R. S. 1909; Secs. 2872, 2874, R. S. 1909; Tasson v. Newman, 62 Mo. 198; Muldow v. White, 67 Mo. 470; Emmerson v. Hughes, 110 Mo. 627; Sec. 7, p. 220, R. S. 1845; Brown v. Tuschoff, 235 Mo. 458; Maguire v. Moore, 108 Mo. 273; Chew v. Keller, 100 Mo. 369; Waddell v. Waddell, 99 Mo. 345; Roberts v. Crume, 173 Mo. 579; Heady v. Hollman, 251 Mo. 640; Eckle v. Ryland, 256 Mo. 448; Webb v. Archibald, 128 Mo. 304-305; 18 Am. & Eng. Ency. Law (2 Ed.), 763; 40 Cyc. 1949; 1 Hnderhill on Wills, p. 449, sec. 335. (2) The plaintiff Gratia B. Gillilan is not entitled to recover in this case, either as the widow of George W. Gillilan, or under his will; for the reason that said George W. Gillilan had a life estate only in said five hundred acres of land and all his right, title and interest therein ended at his death. Warren v. Williams, 25 Mo. App. 22; Sec. 345 R. S. 1909; Phillips v. La Forge, 89 Mo. 75; Waddell v. Frazier, 245 Mo. 401; Hauser v. Murray, 256 Mo. 97; DeLassus v. Gatewood, 71 Mo. 381; Dickerson v. Dickerson, 211 Mo. 493; Garrison v. Young, 135 Mo. 207. (3) The defendants, Independent N. Gillilan and Anna F. Carr, were not entitled to recover any interest in said five hundred acres of land in this case as the heirs of George W. Gillilan. First, for the reason that said George W. Gillilan did not acquire any right, title or interest in said land under said clause 9 of said will, as a residuary devisee. Second, for the further reason that said parties defendants did not ask the court in their answers for any decree under said clause 9 of said will. Third, for the further reason that both of said defendants were expressly disinherited by the will of Nathan Gillilan from having any right or interest in his said' estate as his heirs. (4) Ann F. Gay and those answering with1 her by way of cross-bill, and who are claiming as owners in fee simple their respective shares of said land amounting to two hundred and fifty acres, as heirs of Nathan Gillilan, deceased, under the laws of the State of Missouri, relating to descents and distributions, were and are under the law and the facts in' this case entitled to recover their respective shares claimed by them in their answer and cross-bill. 13 Cyc. 647-649; Rodney v. Landaw, 104 Mo. 258; Hauser v. Murray, 256 Mo. 73; Utter v. Sidman, 170 Mo. 294; Garrett v. Wilson, 252 Mo. 708; Schmueker’s Estate v. Reel, 61 Mo. 597; State v. Baird, 271 Mo. 9; Sullivan v. Garesche, 229 Mo. 507; Thomas v. Anderson, 245 Fed. 642; Thompson on Wills, sec. 305; 2 Cooley’s Blackstone, 162; Frame v. Humphry, 164 Mo. 346; Perry v. Strawbridge, 209 Mo. 621; Sec. 332, R. S. 1909; Elsea v'Smith, 273 Mo. 405; Sec. 2877, R. S. 1909; Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 250 Mo. 545; Ross v. Presbyterian Church, 272 Mo. 106.

      Nat G. Crusen for respondent Lorenzo J. Gillilan.
    (1) When the testator has interpreted a particular clause of his will, the courts when called upon will follow such interpretation. State ex rel. v. McVeigh, 181 Mo. App. 581; Small v. Field, 102 Mo. 129. (2) The court may take into consideration in construing this will, that it was drawn by a lawyer, who knew the meaning and effect of the technical words used. Cross v. Hoch, 149 Mo. 338; 40 Cyc. 1399 and 1432, n. 20. (3) Having in mind the rules of construction and the intentions of the testator, the will of Nathan Gillilan by the fifth clause thereof, devising to “my son George W. Gillilan and to his heirs hereafter born to him,” the land in controversy “this devise and bequest, however, in behalf of my said son George shall be to the exclusive use and benefit of my said son George and the heirs of his body hereafter born” created, what at. common law would be an estate tail. 2 Blackstone Comm. 144; 4 Kent. (13 Ed.) p. 9; 16 Cyc. 608; Wash-burn on Eeal Prop. (6 Ed.) p. 83, sec. 173; Tiedman on Eeal Prop. (Enlgd. Ed.) see. 44, p. 33; Burris v. Page, 12 .Mo. 358; Chiles v. Bartleson, 21 Mo. 344; Phillips v. LaEorge, 89 Mo. 72; Wood v. Kice, 103 Mo. 329; Emmerson v. Hughes, 110 Mo. 627; Farrar v. Christy’s Admrs., 24 Mo. 468; Bone v. Tyrell, 113 Mo. 175; Godman v. Simmons, 113 Mo. 127; Clarkson v. Clarkson, 125 Mo. 385; Hunter v. Patterson, 142 Mo. 310; Rozier v. Graham, 146 Mo. 352; Reed v. Lane, 122 Mo. 311; Utter v. Sidman, 170 Mo. 297; Miller v. Ensminger, 182 Mo. 195; Frame v. Humphrey, 164 Mo. 336; Cox v. Jones, 229 Mo. 64; Gray v. Ward, 234 Mo. 297. (4) This devise being to particular heirs (to the heirs of body hereafter born) and not to the heirs generally created and estate tail special. 16 Cyc. 009b; Tiedeman on Eeal Prop. (Enlgd. Ed.), sec. 48, p. 36; Washburn on Eeal Prop. (6 Ed.) p. 92, sec. 200; Phillips v. La Forge, 89 Mo. 72; Reed v. Lane, 122 Mo. 315; Eozier v. Graham, 146 Mo. 359; Summett v. Realty & Brokerage Co., 208 Mo. 513; Gray v. Ward, 234 Mo. 297. (5) The fact that an estate tail may be barred should have no weight in construing a will to determine if an estate tail is created. Middleswarth v. Collins, 1 Phila. (Pa.) 139. (6) Under the laws of the State of Missouri in force at the time of the execution of the will of Nathan Gillilan, and at the time of his death, the said Nathan Gillilan could and did devise by his last will his real estate and all .interest therein. * See. 535, R. S. 1919; Sec. 2787, E. S. 1909; - Brown v. Fulkerson, 125 Mo. 400; Godman v. Simmons, 113 Mo. 130; Clark v. Sires, 193 Mo. 502; Smith v. Sweringen, 26 Mo. 567; 40 Cyc. 1048. (7) All estates that are transmissible, either by operation of law or by act of the owner, are held devisable. Redfield on Wills (4 Ed.), p. 388. (8) Having carved out an estate in the fifth clause of his will to George W. Gillilan and the heirs of his body to be born to him thereafter, there remained in testator a reversion. 4 Kent (13 Ed.), p. 10, 381; 2 Washburn on Real Prop. secs. 1508, 1511; Tiedeman, p. 381; ^Williams on Real Prop. (17 Ed.) p. 303.- (9) What was a mere possibility in a donor of a conditional fee, was turned into a reversion by Statute de bonis (13 Edw. 1). 4 Kent, 12; 3 Bacon, Abridgment, 431. (10) A reversion is devisable, descendable and alienable, in the same manner as an estate in possession. 16 Cyc. 662; 40 Cyc. 1048; 2 Washburn on Real Prop. secs. 1509, 1510; Underhill on Wills, sees. 47, 49. (11) A devise of a reversion passes under a residuary clause. 2 Jarman on Wills, 240. (12) A grant of estate after fee tail in same instrument creates a vested remainder. Williams on Real Prop. (17 Ed.) 303, 304, and 312 to 323; 16 Cyc. 649. (13) The reversion remaining in a testator of a will after estate tail may pass by the same instrument, or the residuary clause of a will to such persons as the testator may designate. Steel v. Cook. 1 Mete. (42 Mass.) 283; Farrar v. Christy’s Admrs., 24 Mo. 453; Wood v. Kice, 103 Mo. 329; Miller v. Ensminger, 182 Mo. 195; Watson v. Watson, 110 Mo. 164; High Est., 136 Pa. St. 222; Craig v. Craig, 3 Barb. ch. 76; In re Mapes, 55 Hun, 606, 7 N. Y. Supp. 872, 125 N. Y. 728; Lamb v. Lamb, 131 N. Y. 227; Irwin v. Zane, 15 W. Ya. 646; 40 Cyc. 1566; Faust Admrs. v. Burner, 30 Mo. 414; Cos v. Jones, 229 Mo. 64; Davis v. Callahan, 78 Me. 313. (14) A man may have an estate tail and the reversion in fee upon failure of issue, but the estate tail will remain intact. 1 Wash-burn on Real Prop. (5 Ed.)', p. 113; Tiedeman on Real Prop. (Enlgd. Ed.) sec. 51; 16 Cyc. 669. A devise may be made to life tenant and same person as remainderman. 2 Redfield on. Wills, 417. (15) All void and lapsed legacies inure to the benefit of the residuary legatee. 40 Cyc. 1944;, Bradford v. Leake, 137 S. W. 96; Moran v. Moran, 65 Am. St. 443, 39 L. R. A. 204; Givens v. Ott, 222 Mo. 395; Dozier v. Dozier, 183 Mo. 137; Faust v. Birner, 30 Mo. 137.

      Culver & Phillip for respondent Mary Lee Hays.
    (1) By the fifth clause of the will the testator devised the land to George Gillilan “and his heirs thereafter born to him” and declared that the land should be for the exclusive use and benefit of George “and the heirs of his body thereafter born.” This created a fee tail special which the statute converted into a life estate in George with remainder in fee to his bodily heirs thereafter born. Hall v. French, 165 Mo. 430; Phillips v. LaForge, 89 Mo. 72; Gray v. Ward, 234 Mo. 291; Hunter v. Patterson, 143 Mo. 310. (2) The “polar star” in the construction of wills is the intention of the testator. McCune v. Goodwill, 204 Mo. 337; Gannon v. Pauk, 200 Mo. 85. (3) Where a testator uses in his will technical words or terms or words having a definite legal signification, he will be presumed to have used them in that sense, and the will will be so construed unless a clear intention to the contrary is apparent from the context. 40 Cyc. 1398; Drake v. Crane, 127 Mo. 85; Dodson v. Kertland Coal Co., 150 S. W. 6; Sample v. Smythe, 105 S. W. 415; Young v. Amburgey, 87 S. W. 802; Underhill on Wills, 651. And where, as here, it appears that the will was drawn by a skilled lawyer, that fact should be considered by the court in determining whether certain words were used in their technical sense. 40 Cyc. 1399. (4) “Heirs of his body” means “heirs born of his body;” and is therefore synonymous with “heirs born to him.” All of these terms include not only children, but all persons in the line of descent capable of inheriting from the ancestor, and exclude collateral heirs. Emerson v. Hughes, 110 Mo. 631; Houghton v. Kindall, 89 Mass. 72. (5) The words, “ to George and'to. his heirs hereafter born to him,” would have created a fee tail at common law, eyen if they had been further qualified by the words “by his wife Martha.” Gray v. Ward, 234 Mo. 291; Phillips v. LaForge, 89 Mo. 72; Speight v. Askins, 102 S. W. (Term.) 74; Fanning v. Doan, 128 Mo. 327. (6) It was not necessary to add the words “for life” to limit the estate devised to George to a life estate. Cross v. Hoch, 149 Mo. 343. (7) Cases in Illinois are governed partially by the statutes of that State. The rule in Shelley’s case is in force in that State, but it is abolished in Missouri. See Bailes v. Davis, 241 Ill. 536; R. S. 1909, sec. 578. (8) Under the ninth clause of the will George and John took the reversion left in the testator after the devise created by the fifth clause, (a) The interest left in the testator was a reversion, a present vested’interest, which he could and did devise. 30 Cyc. 1474, n.’ 40; Tiedeman, Real Prop. p. 381; 2 Washburn, Real Prop. (6 Ed.) sec. 1611; 4 Blaekstone, 175; Payne v. Beale, 4 Denio (N. Y.), 411; 2 Washburn, Real Prop. (6 Ed.) sec. 1509; 4 Kent; pp. 354, 355. (b) All reversions are vested. 30 Cyc. 1473, N. 39; Brown v. Brown, 93 N. E. 357. (c) They maybe conveyed by deed or devise, and will go to the donor’s heirs if he dies intestate. 2 Washburn, Real Prop. (6 Ed.) sec. 1510; 16 Cyc. 662; Wingate v. James, 22' N. E. 736; Akers v. Clark, 65 N. E. 296; 3 Washburn, Real Prop. (6 Ed.) sec. 2246. (d) The presumption is that a testator does not intend to die intestate as to any part of his property, and a will should be so construed as to dispose of all of his property, if it is susceptible to such construction. McMahan v. Hubbard, 217 Mo. 637; Meiners v. Meiners, 179 Mo. 614; Duboraw v. Duboraw, 67 Kan. 139. (e) That the residuary clause is broad enough to include the reversion in the five hundred acres is certain. That the' testator had a reversion that he could devise is equally certain. That the presumption is that he did not intend to die intestate as to any part of his property, and that the residuary clause must be construed to devise the reversion if it can be, is settle^. And that it did carry the reversion is not open to serious debate under the decisions of this court. Givens v. Ott, 222 Mo. 395; Watson v. Watson, 110 Mo. 164; Sandusky v. Sandusky, 261 Mo. 351; Youngs v. Youngs, 45 N. Y. 254; Bradford v. Leake, 137 S. W. 96; Smith v. Smith, 141 N. Y. 34; Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 538; 13 Amer. & Eng. Ency. Law, 51, n. 4; Harrison v. Foote, 30 S. W. 838; Bowen v. Boyd, 9 Watts & S. 123; 40 Cyc. 1950, 1565, 1564, 1265. (f) The devise in the ninth clause to George and John was not the devise of a. remainder after the devise of the remainder in fee to George’s bodily heirs thereafter born, but in lieu of it. Two remainders in fee may be so limited as to take effect, the one being a substitute for, and not subsequent to, the other. Chapin v. Nott, 67 N. E. 833. (g) The vesting of the fee in Geo-rge and John under the residuary clause was not contingent upon the death of George without bodily heirs thereafter born. On the death of the , testator the reversion immediately passed to and vested in George and John, subject to be divested by the death of George leaving such heirs. Therefore on the death of John one-half the fee passed to his children, ■ and on the death of George his one-half of the fee passed under his will to the plaintiff. Gilpin v. Williams, 25 Oh. St. 295; Harrison v. Weatherly, 54 N. E. 243; Coots v. Yew-ell, 25 S. W. (Ky.) 597; Bell’s Estate, 147 Pa. St. 389;' Peterson v. Jackson, 196 111. 40; Chapin v. Nott, 203 Ill. 341; Strokes v. Van Wyck, 3 S. E. (Va.) 391; In re Yenyon, 20 Atl. (E. I.) 297.
   BOND, C. J.

I. Suit to determine title to five hundred acres of land in Daviess County, Missouri. •

The case was tried and submitted on an agreed statement of facts setting out in detail the relationship of -the parties and the history of the title. The material facts are as follows:

On December 17, 1882, Nathan Gillilan, the common source of .title, died testate, owning a large amount of property, including the five hundred acres in suit. His will was contested, but was finally established' and recognized as valid, and we quote the two clauses thereof covering the devise of said land:

“Fifth. It is my will and I do hereby give, devise and bequeath to my son George W. Gillilan and to his heirs hereafter born to him, the following described real estate, situated in Daviess County, Missouri, to-wit [description omitted]; this devise and bequest however, in behalf of my son George W. Gillilan shall be to the exclusive use and benefit of my said son George and the heirs of his body hereafter born, excluding his present wife Martha I. Gillilan and her three children, Orna V., Anna F., and Independent N., from all benefit or interest or part whatever in my estate; I do hereby, to make my will clear of all doubt declare that it is my intention, and I do hereby disinherit and exclude the said Martha I. Gillilan and her three children, from all interest or part whatever in my estate.
‘ ‘ Ninth. It is my will and I do hereby provide that after the payment of the several legacies and bequests aforesaid out of and from my estate, the remainder of my said estate, if any, both real and personal, shall be the property of and belong to, and I do hereby give, devise and bequeath the same to my two .sons, George W. and John D. Gillilan in equal parts, share and share alike.”

Besides the two song mentioned in the above clauses of the will, said Nathan Gillilan left a son Robert L., a daughter Ann F. Gay, the four children of his deceased daughter Mary Jane Clendennen, and the four children of his deceased daughter Elizabeth Gillilan, all of whom, or their heirs, are parties to this suit:

In 1882 George W. Gillilan was granted a divorce from his wife Martha (who is mentioned in the fifth clause of the will above) and thereafter married Gratia Kirkland. No children were born of this marriage and at his death in 1914, George Gillilan left, by will, all his property to his widow, Gratia, the present plaintiff, with the exception of a bequest of .'$100 each to the two surviving children of his wife Martha. Suit was brought by these two children (Anna Carr and Independent Gillilan) to ■ contest this will, which contest was still pending at the institution of this suit.

In 1895, John D. Gillilan, the son mentioned in the ninth clause of the will of Nathan Gillilan, died, leaving as his sole heirs two sons, Lorenzo and Nathan, and a daughter, Mary Lee Hayes. Thereafter Nathan Gillilan sold his interest in the land in question (if any) by warranty deed to his brother Lorenzo. >

The trial resulted in a decree by which the court gave one-half of the five hundred acres in dispute to the two children of John D. Gillilan, deceased, (one-sixth to Mary Lee Hayes and two-sixths to Lorenzo Gillilan, he having purchased the one-sixth interest of his brother Nathan); and the other two hundred and fifty acres to Anna Carr and Independent Gillilan, the two children of George Gillilan, deceased, by his former wife Martha, -subject to the dower rights of the plaintiff Gratia Gillilan and the settlement of the contest of the will of George Gillilan.

Gratia Gillilan appealed because she did not get as devisee of her husband a fee simple title to one-half the land which was decreed to Anna Carr and Independent Gillilan (the children of Martha, the former wife of George Gillilan). Ann F. Gay and those answering with her appealed, claiming they alone should have title to''all the land as the only heirs at law of the late Nathan Gillilan, on the theory that the land in suit reverted to his estate upon the lapse of the devise in clause 5 of his will. Lucas R. Gillilan- appealed, claiming all the land as the oldest son of Robert L. Gillilan, the oldest son of Nathan Gillilan, under the common law doctrine of primogeniture. The remaining children of Robert L. Gillilan appealed, claiming equal participancy with said Lucas R. Gillilan.

II. It is contended on behalf of Lucas R. Gillilan that he, being the oldest child of Robert Gillilan, who was the oldest child of Nathan Gillilan, was entitled to the entire estate for the reason that by. the statutory abolition of tlle fee tail> the land so devised reverted to the common source (Nathan Gillilan) and then descended to him under the rule of primogeniture. The phraseology of so much of the present act (R. S. 1909, sec; 2872) relating to the vestiture of the estate after the death of the person who would have been the first tenant in tail under the English law, is claimed to be susceptible of the construction that it was intended to vest the ’fee in the oldest son of the life tenant • to the exclusion of his other children, since thi statute uses this language: “And the remainder shall pass in fee simple absolute to the person to whom the estate-tail woujld, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” [R. S. .1909, sec. 2872.] We do not think the act bears that meaning. The doctrine of primogeniture is contrary to the theory upon which this and other commonwealths were built. ( This fact is conceded in the opinion of the commissioner cited by appellant Lucas R. Gillilan. [Stockwell v. Stockwell, 262 Mo. l. c. 677.] All that the commissioner said in that case with reference to the-italicized clause above, is that it might furnish “a verbal reason” for a claim that the statute had adopted primogeniture in this State. He, however, immediately added that no such doctrine could exist in this country, citing, in support of his conclusion, Tiedeman on Real Property, sec. 474. To the same effect, Miller v. Ensminger, 182 Mo. l. c. 203.

No part of the common law which was “repugnant to” or “inconsistent with”.our Federal Constitution or State laws, was ever adopted as a part of the jurisprudence of this State. [R. S. 1909, sec. 8047.] J The doctrine of primogeniture is radically opposed to the spirit, if not the letter of both/[and what the learned commissioner meant by the terms “verbal reason” was probably a satirical or derisive allusion to an argument ’which might be made by a verbal play on the language of the statutes, hut which had no real substance.: The idea that any such preference in the descent of real property could co-exist in the laws of any of the states, with the axioms of the Federal Constitution guaranteeing equal protection of the laws to all persons and a republican form of government for each state, or with the social and political life modeled on these fundamental principles, is an unthinkable absurdity. Any intimations of a different import in any of the decisiohs of this court are hereby expressly disapproved. Our conclusion is that Lucas R. Gillilan has no claim whatever other than that possessed equally by his brothers and sisters.

III. The question which will decide the rights of the appellants in this case arise solely out of the view which we shall take of the intendment and effect of clauses five and nine of the will of Nathan Gillilan, deceased. The lawful intent of a testator is the key which unlocks the legal meaning of his last will and testament. The language used in clause five, supra, would have created an estate in fee tail special in five hundred acres of land devised to George W. Gillilan and in the heirs of his body born after the making of the will, according to the common law of England. The words employed contained terms of both procreation and limitation, and, therefore, fall strictly within the established rule defining estates in fee tail. [Gray v. Ward, 234 Mo. 291; Cox v. Jones, 229 Mo. l. c. 65; Hall v. French, l. 65 Mo. 430; Scudder v. Ames, 142 Mo. 210; Bone v. Tyrell, 113 Mo. l. c. 182; Phillips v. LaForge, 89 Mo. 72; Tiedeman, Real Property (3 Ed.), sec. 41, p. 49; 3 Bacon’s Ab^dgt. 428, 430*.] No estates in fee .tail,' general or special, have existed in this State since 1825, if ever. [R. S. 1999; secs. 2872, 2874, 578; Elsea v. Smith, 273 Mo. l. c. 413.] Neither does the rule in Shelley’s case exist either in deeds or wills.

It is insisted, however, by the learned counsel for plaintiff Gratia Gillilan, that this court should take the view that clause five of the will of Nathan Gillilan devised a defeasible estate in fee to George W. Gillilan, which became absolute upon failure of issue to him, in which event the plaintiff would take all of the land under the devise to her in her husband’s will, in case it should be established in the contest suit still pending. We cannot concur in the view that the language employed in the devise in clause 5, supra, vested George W. Gillilan with an estate in fee of any kind. In support of that notion it is insisted-that the term “heirs” (twice mentioned in clause five) should be substituted by the term “children,” and that after such substitution it should be held that George W. Gillilan took a defeasible fee which became absolute when no children were thereafter born to him. [Tindall v. Tindall, 167 Mo. 218.] The answer to this contention is that the will, considered as a totality, does not evince a paramount purpose on the part of the testator so strong and controlling, to devise by clause five supra, a defeasible fee to his son George, as to make it our duty to carry out that purpose by substituting other language for that which the testator used in his will. We do not question the rule that the terms “children” and “heirs” may be construed to have been used the one for the other whenever such a construction is necessary to carry out the dominant thought of the testator as shown by the language employed in his will. We fully approve the statement of this rule in the cases cited by appellant “that, if the words used in the context warrant it, and such construction will carry into effect the manifest intention that moved the execution of the deed or the signing of the will, then such intention will be made effectual, and the words heirs will be construed as meaning children, and vice versa, and children as issue, grandchildren or descendants, if the justice or reason of the case requires it. [4 Kent (14 Ed.), 419; 3 Wash. Real Property (5 Ed.), 282; Haverstick’s Appeal, 103 Pa. St. 394; Warn v. Brown, 102 Pa. St. 347.]” We also agree to the statement of the rule cited by appellant, viz:

“The presumption that the words ‘heir of the body’ or ‘heirs of. the body’ are used in a technical sense, though it obtains in the large majority of cases, is not always conclusive. The law of construction that the intention of the testator, however expressed, must prevail,- will be enough to vary the meaning of those words, if it is apparent that the testator, though using the technical words, has used them in a non-technical sense.” 2 Underhill, Wills, sec. 651. To the saipe effect: Brown v. Tuschoff, 235 Mo. 458.

In this connection it must be carried in mind that the draughtsman of this will was an ex-judge and a traine.d lawyer, and as such was familiar with the technical meaning of the words and terms used. [40 Cyc. 1399.] The terms of the devise in clause five, supra, twice repeated, were, first, “to my son George W. Gillilan and to his heirs hereafter born to him;” second, “my said son George and the heirs of his body hereafter born,” etc. It has been shown that these terms in the strictest and eompletest sense create an estate in special tail, which, by the statute abolishing entails, became a life tenure in George W. Gillilan with a contingent remainder in fee in his direct descendants born after the making of the will. The case, therefore, in legal effect, is identical with the point in judgment in the case of Emmerson v. Hughes, 110, Mo. 627, where the life estate was conveyed to Mary R. Godman and “then to the heirs of her body arid assigns forever.” In that case Black, J., (Ibid. 630) said: “There is nothing in this deed from which we can say the word ‘heirs’ means children, and this being so, we must give to it its ordinary legal signification.” He then held that the deed created a contingent remainder in fee in the plaintiff, who was the granddaughter of the life tenant and fell within the description of “heirs of the body of the tenant for life.” There can be no reason in this case, ascribable to tbe paramount/-intent of the testator, for construing the term “heirs” to have been used when children were meant, which did not exist in that case. "We are unable, therefore, to follow the theory that such was the intention of the testator and his draughtsman when clause five of the will of Nathan Gillilan was executed.

Having reached that conclusion, it is only necessary to add that the case of Tindall v. Tindall, 167 Mo. 218, relied upon, in the event this court should substitute “children” for “heirs,” has no application. However it may be said of that case that the only point held in judgment (under the facts showing that the devisee, Mrs. Tindall, had six children) was what estate she took in these circumstances under the terms of a deed providing, in case of her death without issue, that the estate was “to descend to her heirs, at law.” The court accordingly held that upon the birth of issue the contingent remainder in these heirs became a vested one in fee. The observation that Mrs. Tindall would have taken a fee if no children had been born to her was, therefore, a mere dictum, with only the persuasive force of an utterance of a learned judge.

IV. The only remaining question presented by this appeal is what became of the estate remaining in Nathan Gillilan (which he had specifically devised in clause five of his will) upon defeat of that devise for lack of heirs thereafter born to George Gillilan, thereby causing a lapse of the contingent remainder to such heirs. In the solution of this question only two views are possible: first, that such a reversion in Nathan Gillilan passed to his descendants as in case of intestacy; second, that it was conveyed by the residuary clause of./the will supra. The latter is the view taken by the learned trial court and is the view taken as a dernier resort by appellant Gratia Gillilan (as shown in her brief) in case this court should take, as it does, the view that clause five of the will created an estate tail special at common law, which was changed by the statute into a life estate in the tenant in tail with a contingent remainder in fee in certain subsequent heirs of the body of the life tenant. In considering this question it must be realized that Nathan Gillilan had a right, not a mere possibility, of reversion after carving out so much of his estate as was devised' through the instrumentality of clause five of the will. The reversion so inhering in him was the proper subject of a grant by clause nine of his will if he so desired; otherwise it would descend to his heirs at law under the statute of descents and distribution as in case of intestacy. Conceding, as claimed for Ann F. Gay and other appellants appearing with her as general heirs at law of Nathan Gillilan, that upon the lapse of a specific ¡devise of realty, the law indulges a presumption that the testator did not intend to make a further devise, yet no such presumption arises when, he has made another devise. The question then presented is, what was his intention by the further devise ? Did he thereby intend to dispose of the property described in the lapsed devise? For, if so, the property must pass thereby. The dominant thought of the author of this will was to provide in the various ways therein shown, for his children and heirs. His secondary intent- was to exclude from the benefits of clause five of his will, the three children and the wife (soon afterwards divorced) of his son George W. Gillilan. Having excluded them from the purview of that clause, he apparently dismissed them from his thoughts and proceeded to dispose of whatever of his estate should remain after his previous bequests and devises. He did this by a further devise, to-wit: “The remainder of my said estate, if any, both real and personal, shall be the property of and I do hereby give, devise and bequeath the same to my two sons, George W. and John D. Gillilan in equal parts, share and share alike.” At the time this residuary clause was inserted in the will, Nathan was the owner of a right to reversion in the land which he had previously devised ip clause five of his will. This reversionary estate was the subject of a valid devise. We have reached the conclusion it was the intention of the testator to devise it by the terms''of clause nine of his will. The making of a will dealing with his entire estate and undertaking to dispose of all of it, disclosed his intention to die testate. Such is the logical and legal presumption which arises from the execution of a will purporting to dispose of the whole estate of . a testator. In the instant case the testator devised his property among his children and heirs in the manner specified in the various clauses of that instrument and then added clause nine to cover any residue. He never for a moment forgot the interests of George, for after having provided for him and his future heirs by a large devise of lands, in a manner which he had reasonable grounds to expect would vest the fee in the expected heirs, he ‘ continued to carry in mind the interests of George, and when he came to deal with the totality of his estate, he expressly provided that George and his son John should take what remained thereof in fee simple, share and share alike.

Our conclusion is that the terms and provisions of this will, taken in its full scope and purpose and in view of the attending circumstances, manifest that it was the distinct purpose and intention of the testator to dispose of all of his estate by the will in question, and by the residuary clause thereof to devise his reversionary rights, upon the lapse of the devise under clause five, to'his two named sons,' George W. and John D. Gillilan.

The judgment of the learned trial court was in accord with this view and, therefore, correct, and must be affirmed. It is so ordered.

PER CURIAM:

The foregoing opinion in Division is adopted by Court in Banc.

All concur, Graves, J., in result, except Woodson, J., absent.