Bernero v. St. Louis Union Trust Co.

230 S.W. 620, 287 Mo. 602, 1921 Mo. LEXIS 176

• Court: Supreme Court of Missouri
• Decided: April 30, 1921
• Status: Published

Opinions

DAVID E. BLAIR, J.

Statement. The record in this ease on 'appeal was lodged in Division One of this court and on assignment fell to one of the commissioners of that division. His opinion reversing and remanding the judgment of the trial court was not adopted as the opinion of Division One and the cause was transferred to Court in Banc and has been here argued and sub-"We adopt in toto the statement of facts and contentions of the parties made by the learned commissioner in his opinion, which is as follows:

I. “Appeal from the Circuit Court of the City of St. Louis. Suit to quiet title. This case involves the construction of the will of Louis Bernero, who died in St. Louis on August 8, 1904. Plaintiff claims title under said will, but lost in the lower court. Said Louis Bernero left surviving him his widow, Theresa Bernero, also Manuel!o Bernero (the father of plaintiff), whom the testator refers to in his will as his adopted sou. They had no children of their own. At one time he was engaged in the wholesale cigar business in St. Louis with his brothers Joseph and Augustino, who, however, returned to their native country, Italy. This was prior to 1880. In 1880 Louis Bernero and his wife visited his brother Augustino in Italy. Augustino was married at the time and had a large family of children, amongst others the said Manuello, who was then about three years of age. By agreement with his parents, Louis Bernero agreed to take said Manuello back to the United States with him and raise and educate him as his own child — in effect, to adopt him. In pursuance of his agreement, he and his wife returned to St. Louis, taking Manuello with them. They raised, educated and treated him as their son and he lived with them until the death of Louis Bernero in 1904. Manuello was then about twenty-seven years old and single. The relations between him and the testator seem always to have been amicable and affectionate. Manuello and the Avidow were made executors of his Avill without bond. The tAVo brothers of Louis Bernero also survive him. On November 30, 1904, after the death of said Louis, Manuello married Lorraine Thompson, the mother of the infant plaintiff, Louis Bernero, and the curatrix of his estate. Shortly after the death of .Louis Bernero the elder, his Avidow Theresa, by a Avritten document dated April 10, 1905, formally adopted said Manuello as her child. This document recited his parol adoption by Louis Bernero and his wife in 1880. Manuello Bernero died April 4, 1.910, leaving the infant, plaintiff Louis, then about four or five years of age, as his only child and his widow Lorraine him surviving. On July 15, 1911, a little over a year after Manuello died said Theresa departed this life, leaving a will dated June 25, 1910.

“At the time of his death and when he made his will, the property of said Louis Bernero, consisting mostly of real estate, but some $30,000 or $40,000 in money, Avas probably worth $400,000 or $500,000. It was all in the City of St. Louis. The property involved in this controversy is a piece of business pi'operty in Block 172 of said city, at the southwest corner of Washington Avenue and Ninth Street and is particularly described in paragraph five of the will of said Louis Bernero. At the time aforesaid said property in question here aaus worth some $200,000 and constituted about one-half in value of his estate, or about as much in value as was given to the widow absolutely by his will. When said Theresa Bernero died her property consisted, so far as shown by the record, of the property she had received from her husband’s estate. She left surviving her besides the plaintiff, the child, and Lorraine Bernero, the widow of her adopted son Manuello, her sister Clotilda Longinotti and the eleven children of her said sister mentioned in her will and who, with the defendant trust company, are the defendants in this case. Said Clotilda with her family had for many years lived in the State of Arkansas. There was also a niece, the daughter of a brother mentioned in her will.

“By his will Louis Bernero first made certain specific bequests to charity aggregating $1200. He next devised .to his brother Joseph a lot at the northwest corner of Ninth and Morgan Streets in St. Louis, which is not treated by the parties as of great value. The remaining portions of his will are as follows:

“ ‘5. I give and devise unto my beloved wife, Theresa Bernero, the realty owned by me in block number one hundred and seventy-two (172) of said City of St. Louis, at the southwest corner of Washington Avenue and Ninth Street, having a frontage of forty-nine (19) feet six (6) inches, more or less, on the south line of Washington Avenue, by a depth southwardly along the west line of Ninth Street to the north line of St. Charles Street, and bounded west by property now or late of the Tutt estate; to have and enjoy for and during the term of her natural life, and at the time of her death the same to pass to our adopted son, Manuello Bernero, if he shall survive her, to have and enjoy during his natural life, and at his decease to pass to and vest in fee in his children if any fie have, or their descendants, but in default or failure of such direct heirs, children or grandchildren him surviving, .then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs; if, however, my said wrife shall survive said Manuello, then she, said Theresa Bernero is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testa mentary disposition of same, then said realty, upon her death, shall vest in my right heirs, if she shall survive said Manuello; I authorize and empower my said wife during her .lifetime, and if said Manuello shall survive her and enter upon the enjoyment of sáid realty, then said Manuello during his lifetime, to lease said realty thus bequeathed to them for life as aforesaid, successively, on such terms as they severally deem proper, each exercising such right during her or his life-tenancy, for leasehold periods not exceeding twenty-five (25) years each.

“ ‘6. I give and bequeath unto our faithful domestic, Louisa Gazzolo, the sum of Five Hundred Dollars.

“ ‘7. All the rest, residue and remainder of my estate, real and personal, wheresoever and whatsoever, I give and devise unto my beloved wife as her absolute estate, free from conditions or restrictions.

“ ‘8. I nominate and appoint my said wife and said Manuello Bernero executors of this my last will and testament, and in the event of the death of either before my own decease, then I constitute the survivor sole executor hereof; I desire and direct that no .bond be required from them, or either of them for the due administration of my estate, and I further empower and authorize them, or the survivor of them, as such executors or sole executor to sell and dispose of any of my realty, excepting said parcels situated in blocks numbers one hundred and seventy-two (172) and one hundred and seventy-five (175), specifically devised as hereinabove set forth.

“‘In Testimony Whereof, I have hereunto set my hand at said City of St. Louis, this nineteenth day of May, A. D. 1900. ' .

“ ‘Louis Bernero/ ”

“Augustino Bernero, the brother of the deceased husband of said Theresa and the father of Manuello, with several other sons and daughters, survived the said Theresa. By her will she bequeathed to said Augustino the sum of $2000, and to each of his sons and daughters, the same amount, aggregating in all $16,000. She also made several charitable bequests aggregating $2,500. By her will she bequeathed to the plaintiff Louis Bernero (or to a trustee for him) the sum of $10,000. The will of said Theresa gave her niece, the daughter of a brother, $3000 and to a former servant, $200. Her said will also contained a provision, that if any of the beneficiaries should either directly or indirectly contest her will, or attempt to have it set aside, or its provisions defeated, such beneficiary should take nothing under her will, but the bequest- made in his or her favor should be annulled. By the eleventh clause of her will said Theresa devised the property in question to the defendant trust company in trust for the eleven children of her sister Clotilda, on certain terms and conditions. This was followed by a residuary clause, giving her said sister Clotilda the residue of her estate.

“Prior to this suit, the plaintiff, by next friend, instituted a suit to contest the will of said Theresa in which final judgment was rendered sustaining said will. No appeal was taken.

“In the case at bar the lower court found and decreed that plaintiff had no interest in the property sued for, but that it belonged to defendants, the children of said Clotilda Longinotti, and their trustee, defendant trust company, under will of Louis Bernero and of Theresa his widow.

“The lower court filed a written memorandum of its opinion which, so far as regards the construction of the will of said Louis Bernero, is as follows:

“ ‘I can see nothing to be accomplished by filing an extended memorandum in connection with my decision in this case.

“ ‘After careful consideration of the arguments of counsel in the case of those portions of the briefs filed that appeared to me at all relevant to the issues raised, my mind is not left in any doubt but that under the construction that must be placed on the language of- this will, the plaintiff has no interest or estate in the property in question.

“ ‘Plaintiff’s counsel b.egin with the proposition that there is an apparent inconsistency arising from the language of the will. There is an inconsistency only if the first part of the paragraph in question is construed as plaintiff would have it construed. Taking this clause by itself the . construction plaintiff contends for is a forced construction, albeit one that might be resorted to; if necessary, to harmonize it with other provisions in the will. The other clauses of this paragraph are plain, exceedingly plain. No authority is cited, or can be cited, justifying the placing of a forced construction on one provision of a will, or other instrument for the purpose of creating an inconsistency. Consider what the result of the adoption of such a principle would be. A will could hardly be drawn without some clause in it susceptible of different constructions. Disregarding the intent of the testator as disclosed by other provisions of the will, a construction would be placed on it out of harmony with the other, provisions. Then the court would have to resort to interpolations or forced constructions of such other provisions to avoid inconsistencies, with the result that the effect given to the will would be very different from the intent of the testator.

“ ‘It is to avoid any such result that the courts take as one of the fundamental rules in construing wills that the whole instrument, including all its provisions and the general scheme of the testator as disclosed thereby, must be considered in construing each and every provision thereof.

“ ‘Applying this rule to the will in question, it is apparent to me that the remainder to the children or descendants of Manuello Bernero was made conditional upon Manuello surviving his mother — that is, upon his being alive at the time of her death.

“ ‘The suggestions of plaintiff’s counsel — ingenious as they are, and plausibly presented — have not raised a doubt in my mind as to the effect of the language of this clause of the will.’

“Moving for a new trial without avail, the plaintiff appealed to this court.

Contentions of Appellant. II. “Appellant’s learned counsel contended below and contend here, that by the fifth clause of the will of Louis Bernero, the plaintiff, as the only child of Manuello Bernero, the adopted son of said Louis, the said Manuello and Theresa, the widow of said Louis Bernero being dead, was the owner in fee simple and also entitled to the possession of the property in dispute. That the whole will of said Louis Bernero, viewed in the light of his circumstances and family connections at the time he wrote his will, satisfactorily shows an intention to make the plaintiff the owner of the fee in said property upon the expiration of the successive life estates given to his father and adoptive grandmother by said fifth clause. That to carry out such intention thus ascertained the court must, if necessary, interpolate or imply the words, ‘and he leaving no children,’ or ‘and he leaving no issue,’ after the word ‘Manuello’ in the first and last parts of the provision of the said fifth clause giving the widow power of appointment concerning said property. Otherwise, said fifth clause would be repugnant to itself and defeat the intent of the testator, as shown by the whole of said clause and will, which was to devise said property to the children of said Manuello at his death, if any he should have, without regard to whether he survived the testator’s widow or she survived him.”

Contentions of Respondents. III. “The respondents’ learned counsel say, there is no repugnancy betyreen the prior language giving the children their estate and the latter provision giving the widow the power of appointment. That by virtue of the prior language the children of Manuello were only to receive an estate on the contingency that their father survived his fostermother, which did not happen. That this is too plainly and repeatedly written in the will to be gainsaid and is clearly the true intent and meaning of the testator, as shown by the whole and every part of the will and surrounding circumstances. That the perfectly clear language of the last provisions giving them nothing, but giving the widow the power of appointment in the event she survived their father, is in harmony with and not repugnant to the -language of the prior gift to the children and makes clear any uncertaintly as to the testator’s intent in such prior language to give said children the estate only upon the condition and contingency that their father survived his foster-mother. Hence, plaintiff has no interest in the property in question. ’ ’

Construing Will: Interpolating Words. IY. The learned Commissioner then proceeded in his opinion to state many reasons, why the will of the testator Louis Bernero should be construed as contended for by appellant, and came to the conclusion that the interest of the child Manuello was not contingent on Manuello surviving Theresa, but became a vested remainder which could not be defeated by the subsequent provision in paragraph five of testator’s will, giving Theresa power of testamentary disposition of the property in case she survived. Manuello. With this conclusion the majority of the judges are not in accord.

Appellant’s counsel count much on the English case of Abbott v. Middleton, reported in 21 Beavan, 143, as decided by the Master of Rolls, and in 7 House of Lords Cases, 68, as decided on appeal. The will in that case-provided for an annuity of two thousand pounds to testator’s wife, made provision for a daughter and grandchildren and made the son residuary legatee and provided that on the death of the widow the sums provided for her annuity should become the property of the son during his life, and then the principal sum to go to his children, “ ‘but in case of my son dying before his mother, then, and in that case, the principal sum to be divided between the children of my daughters, the deceased Jane Ricketts and Mary Paxton, and of my now surviving daughter, Eliza Middleton (should she leave any issue-), in equal portions to each.’ ”

The Master of Rolls, at page 149, said:

“In my opinion, the two clauses of this sentence, as they stand, are inconsistent and repugnant. The first branch gives an estate to the children, the second takes it away, and the introduction of the words ‘without leaving a child’ after the word ‘dying,’ in the second branch of the sentence, would, in my opinion, make the two branches of the sentence uniform and consistent.”

When the case came before the House of Lords on appeal, the Lord Chancellor at page 83, said:

“ ‘That where there is a clear gift, it can oiily be altered and retracted by the most plain and unambiguous and unequivocal words, and the court will, in dubio, justly prefer that construction of any subsequent clause which will make it consistent with the intention plainly expressed in the preceding part. .

“ ‘Here there is, first, a plain and unequivocal gift, and then there are words immediately following which at once produce an inconsistency, and therefore an ambiguity in the dispositions of the will.’ ”

Lord St. Leonards, concurring, at page 92, said:

“You are not at liberty to transpose, to add, to subtract, to substitute one word for another, or to take a confined expression and enlarge it, without absolute necessity. You must find an intention upon the face of the will to authorize you to do so. .

“And we must stop there with this observation, that the property is actually given without any doubt or ambiguity to the. son’s children, so that if it is to be taken away from the children we must find clear words to effect that object.”

The interpolation of words in the Abbott case was sustained on the ground that there was a clear gift to the son and his children and the subsequent provision was repugnant to that gift and tended to cut it down. It may be noted in passing that Lord St. Leonards at-the outset admonished their Lordships “that ‘hard cases make bad laws,’ and I, therefore, made a covenant with myself to guard myself as much as I could and to keep within what I consider to be the strict rules of law applicable to a case of this kind.” Both the Lord Chancellor and Lord St. Leonards expressed themselves as having no moral doubt as to the testator’s intention.

Appellant cites Nichols v. Boswell, 103 Mo. 151, l. c. 158, wherein Macearlane, J., quoting from a New York case, said:

“'Where one estate is,given in one part of an instrument in clear and decisive terms, such estate cannot he taken away, or cut down, by raising a doubt upon the extent, or meaning, or application of a subsequent clause, or by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that estate.’ ”

In that case this court interpolated in a will the words “undisposed of” to carry out the intention of the testator. The use of such words was employed only because the court found there had been a devise in “clear and decisive terms,” which could not be defeated by subsequent words less clear and decisive.

So in Briant v. Garrison, 150 Mo. 655, the word “through” was substituted for “between” to prevent the defeat of the “manifest intention” of the testator. In McMahan v. Hubbard, 217 Mo. 624, words were supplied so “that the instrument may not perish and the manifest intent of the parties be not defeated by the palpable error of the scrivener.” In Den, Nelson et ux. v. Combs, 18 N. J. L. 27, the words “under age and without lawful issue” were supplied to effectuate the evident intention of the testator and to prevent the defeat of the clear and definite devise made in the will. In Young v. Harkleroad, 166 Ill. 318, the words “without such heirs” were interpolated in the will -there under consideration. Referring to the words used in the will it was said: “The remaining portion of the sentence (quoting) taken literally, directly contradicts what has just been said. ’ ’

In Baker v. Estate of McLeod, 79 Wis. 534, the words “and left no issue” were supplied by the court where the evident intent of the testator was to guard sacredly the interests of his motherless child. The words used in the will would have cast the estate upon a stranger, rather than the child of the daughter where she died without having attained the age of twenty-one. The court, at page 545, said:

“We fully agree with the statement of Mr. Justice Andrews that ‘it may be safely assumed that, where a will is dictated under the influence of family relations, it would seldom happen that a testator would intentionally cut off the issue of a son or daughter from taking the share of the parent in his estate for the benefit of collateral objects.’ ”

In the very late case of Thornbrough v. Craven, 225 S. W. 445, decided November 20, 1920, and not yet officially reported, this court En Banc had before it for construction a will wherein the testator in one clause unconditionally devised his land to his widow and in a subsequent clause directed that the undisposed portion of his estate (at the death of his widow) should be divided among testator’s brothers and sisters. In a contest over the land between the brothers and sisters of the testator and the collateral heirs of the testator’s widow this court held that the heirs of the widow took the land under the rule that the prior clear and decisive grant could not be defeated or cut down by subsequent repugnant provisions in the will of vague and general character.

Numerous cases are cited by appellant which we have carefully examined. In an opinion of any reasonable length it is impossible even to refer to them. To discuss fully the cases cited by counsel on both sides would extend this opinion to the dimensions of a treatise. It will be found that in all these cases, as in the ones we have referred to, the facts were that in the wills under consideration either a clear and definite provision was followed by a repugnant or inconsistent provision, not equally clear and definite, tending to defeat or cut down the prior one, or the provision sought to be sustained by the actual words used was against the manifest intention of the testator, as gathered from the entire instrument, or the exact wording, of vague and uncertain meaning, would have resulted in a disposition of the property devised utterly at variance with the natural instincts of the testator, such as the defeat of succession in title in the heirs of a favorite child of testator for the benefit of strangers. In no case which wo have examined, where the meaning* of the testator has been clearly and distinctly expressed in plain and unequivocal language, have the courts undertaken to supply or interpolate words not used by testator, however much the testator’s disposition of his estate may have appealed to the court as hard and Unnatural.

Testator's Intention Controls. All this court can do, after an examination of said cases, is to turn back to the will before us and carefully examine all of its provisions. Probably no ever ^rawn was exacRy Eke the one before us, and cited authorities are persuasive only and not controlling, because of different states of fact. As one learned judge has expressed it, “no will has a twin brother.” We must therefore study the provisions of Louis Bernero’s will, guided by the general principles laid doAvn by the courts and textwriters and in the light of the circumstances surrounding its execution, and all the time with the very highest regard for and closest attention to the language he employed.

The Legislature has laid down a fixed rule for our guidance in construing wills. Section 583, R. S. 1909 (Sec. 555, R. S. 1919), is as follows:

“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.”

The statute is only declaratory of well settled rules for construing wills laid down by the courts and expresses the common sense of the matter.

To give the will before us the meaning contended for by appellant, words not used by testator must be interpolated by us. The use of such words should never be resorted to except when clearly necessary to carry out the true intention of the testator and this intention must be gathered from the will itself and the whole of it and not because the disposition of his estate made by testator appears to the court to be an unreasonable, unnatural or harsh one. We quote with approval the language of respondents’ counsel in their brief and argument :

‘ ‘ The grave danger lies iu the likelihood of making a new will for the testator thereby instead of construing the language the testator has used. Prom an examination of a large number of authorities it may be laid down as a general proposition that the will on its face must show some contradiction or repugnancy, or that it is incomplete. It must then further appear from the face of the ivill itself that the testator has inadvertently or unconsciously omitted certain words or language which are necessary to make his intention clear. It must next’appear from the face of the will what words <or language have been omitted. It must also appear from the face of the will that the testator dearly intended to malee a disposition which the supplied words will effectuate.”

Will Construed. Appellant’s fundamental error is in his assumption that Louis Bernero in one part of his will made an unconditional provision for the children of Manuello and then proceeded to provide for a contingency, to-wit, if Manuello should predecease Theresa, upon the improbable happening of which, that vested interest should be defeated. It is his contention that Manuello’s children took a vested remainder in the property, independent of Manuello surviving Theresa. The will is not fairly susceptible of such construction. In our opinion, in the plain, ordinary sense of the words used by testator, not only the life estate of Manuello, but also the remainder provided for in his children, were contingent upon Manuello surviving Theresa.

After providing for a life estate in Theresa the will made the following provision with reference to the premises in controversy: First, if Manuello survive Theresa (a) life estate to Manuello (with power to execute twenty-five year lease); (b) the remainder in fee to Manuello’s children; (c) if no children, then remainder to the .right heirs of testator.' Second, if Mannello does not survive Theresa, (a) right in Theresa to dispose of the property by will as she saw fit; (b) failure of Theresa to make such will, remainder to the right heirs of testator. Thus construed the will made provision for remainder in fee in the children of Manuello only on the contingency that Manuello survived Theresa. That contingency never having happened, the remainder never vested in Manuello’s children. This construction gives meaning to all the words used by testator and it makes it unnecessaiy that words be supplied or interpolated. It gives full consideration to the whole will and indicates an intention of the testator entirely different from that contended for by appellant. It results in the conclusion that not only the life estate in Manuello, but the dependent remainder in his child, are entirely contingent on Manuello surviving Theresa. This construction is supported by the general rule laid down in 2 Jarman on Wills, (6 Ed.) 1390-91:

“When a contingent particular estate is followed by other limitations, a question frequently arises, whether the contingency affects such estate only, or extends to the whole series. The rule in these cases seems to be, that if the ulterior limitations be immediately consecutive on the particular contingent estate in unbroken continuity, and no intention or purpose is expressed with reference to that estate, in contradistinction to the others, the whole will be considered to hinge on the same contingency; and that, too, although the contingency relate personally to the object of the particular estate, and therefore appear not reasonably applied to the .ulterior limitations.

“Thus, where an estate for life is made to depend on the contingency of the object of it being alive at the period when the preceding estates determine, limitations consecutive on that estate have been held to be contingent on the same event, for want of something in the will to authorize a distinction between them.”

It was not unnatural for testator, in the event Manuello died first, to empower his wife, the companion of his productive years, the sharer of the toil and economy of those years, and the partner in his prosperity, his confidante and adviser and whose devotion and fidelity he had no reason to question, to make final disposition of •his estate after she was through with it; The wisdom of his decision to rely on her judgment to make a disposition of the remainder of his estate in the way that appeared to her as tíie wisest and most beneficent in view of the then existing circumstances, cannot be questioned by us-. When testator died Manuello had not even married and he knew nothing of the character or disposition of the future mother of Manuello’s children. It was entirely reasonable to suppose that testator intended to provide for just the contingency 'that eventually did happen, to-wit, that with Manuello dead, testator’s widow might think it unwise to devise the property to appellant.

It is not the province of this court to rewrite the wills of testators in order to make-them conform to our notions of the proprieties and equities of the situation. The objects of the bounty of a competent testator, after observing certain restrictions due to the marriage relation, are entirely within.the discretion, even caprice, of the testator himself. It will not do for us to construe Louis Bernero’s will in the light of Theresa’s subsequent testamentary disposition or to say such disposition was contrary to the disposition the testator would have made had he been alive and in control of the estate at the date of Theresa’s will. It is enough that she had the power. Had Theresa made no testamentary disposition whatever of the estate, it wrould have availed appellant nothing since his interest in expectancy as a child of Manuello never became vested.

Construing Wills: Testator's Definition of Words Controls. Y. Appellant contends that the will of Theresa. Bernero is invalid under the rule against perpetuities. As w7e understand paragraph five this question can only be raised by a right heir of testator Louis Bernero. It appellant is not a right heir of such testator, within the meaning of his will, he is not in a position to nrge such alleged invalidity.

Respondents insist that the case was tried below on , the theory that appellant claimed as a child of Manuello Bernero and that he cannot now he heard to say that he has some right, title or interest in the property hero involved as a right heir. It must not he forgotten that appellant’s petition asks that the title to the property be quieted as to respondents and that respondents have asked similar relief as against appellant. We think the court is therefore required to pas» on all questions affecting the title to the property as between the parties. It is true appellant bases his claim to the property primarily on his status as a child of Manuello claiming title vested in him by virtue of the first clause of paragraph five of the will. This claim we have disallowed. If appellant can claim as a right heir, it must he under the second clause of paragraph five. That clause reads “if, however, my said wife shall survive said Manuello, then she, said Theresa Bernero is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testamentary disposition of same, then said realty, upon her death, shall vest in my right heirs, if she shall survive said Manuello.”

If we assume for the sake of the argument that the will Theresa made is invalid because violative of the rule against perpetuities, then the same situation exists as if she had. failed to make testamentary disposition of the realty. In that event, Theresa being dead, the title vested in the right heirs of Louis Bernero.

We are convinced that appellant is not a right heir of Louis Bernero, the testator, within the meaning of the will. Testator has defined the term “right heirs” for us. Regardless of the meaning of that term in ordinary usage, appellant is expressly excluded by the very wording of the will. The line of succession in the title fixed by the testator under clause one of paragraph five is as follows: First, Manuello for life, if he survive Theresa; second, the children of Manuello, if any he have, or their descendants, “but in default or failure of such direct heirs, children or grandchildren him surviving, then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs.” The existence of children of Manuello at his death precluded any interest in the right heirs of testator and the use of the term “right heirs” in that connection clearly shows that appellant is not a right heir as that term was used by testator. Testator uses the words “right heirs” in the same sense in the second clause of paragraph five. Once having defined the term, the courts will give it the same meaning whenever used in the same instrument, unless it has been subsequently defined otherwise.

Appellant lias taken the position in his brief that the term “right heirs” means the same thing in both instances where it is used by testator. We quote from the foot of page 42 of appellant’s statement, brief and argument, as follows:

“There is a repugnancy between the provisions of the foregoing devise as written. ... On the other hand, the first- part vests the title iii the right heirs of the testator only if Manuello leaves no issue surviving him, while the second part vests the title in the right heirs, whether Manuello leaves issue or not.”

Clearly no repugnancy could exist on that account, unless the woi'ds were used in the same sense in both cases. We are further supported in-this view by appellant’s counsel. We quote from page 7 of appellant’s Reply to Argument of the Guardian ad litem of Gorinne Goodwin, et ah, as follows:

“It clearly appears by this provision that the Right Heirs meant by the testator Avere ‘the testator’s collateral heirs, and not the descendants of Manuello, and that the testator intended to classify the ‘Right Heirs’ by themselves; of course, the ‘Right Heirs/ meant by the testator in the second part of Clause 5, of his will, were the same class, or ‘Right Heirs; referred to in the first part.

But it may be said t-hat- Augustino Bernero, the natural father of Manuello, is a right heir of Louis Bernero and that appellant may have'some interest or title on that account. Sufficient answer to such contention is found in the fact appearing of record tliat Augustino Bernero accepted a bequest under the will of Theresa Bernero and elected to take thereunder and thereby accepted the terms thereof and for himself and his heirs thereby forever waived any claim against the validity of Theresa’s will. [Wood v. Conqueror Trust Co., 265 Mo. 511.]

. Appellant is not entitled to claim as a right heir of Louis Bernero and is not in a position in this case to question the validity of Theresa’s will. As to him it is a valid will whether it violates the rule against perpetuities or not. This makes an examination of the question of the validity of her will unnecessary. As against appellant, respondents were entitled to have their title quieted.

Finding no error in the record we conclude that the judgment of the trial court should be affirmed. It is so ordered.

All concur except Higbee, Jwho dissents in separate opinion, and Woodson, J., who dissents and concurs in separate dissenting opinion of Higbee. J.