¶1In a vigorous motion for rehearing appellant's counsel complains because our opinion affirms the judgment below on the ground that William Timberlake's adopted daughter, Beulah, was his "issue" within the meaning of his mother's will. Counsel asserts that point was not raised below or even considered by the trial court; and that it was not tendered as an appellate issue. It is true the judgment below for respondent was not based on that legal theory, but solely on the doctrine of the mooted Owens-Men and Millions decision discussed in the opinion; and it is also true that respondents' brief was addressed solely to the latter contention.
¶2Further it is the fact that the record brought up shows the appellant stipulated with respondents under Sec. 136 of the new Civil Code that he would make only two assignments of error on appeal, namely, that the trial court erred in adjudging that: (1) William Timberlake took a fee simple title to the land in controversy under his mother's will; (2) and did not take a defeasible fee, subject to be defeated by his subsequent death without issue. Appellant's counsel states in his motion that he prosecuted this appeal without charge because of his professional interest in the question whether the Owens-Men and Millions case states good law, and his conviction that it ought to be overruled.
¶3But we are unable to see that counsel's stipulations below were limited to that question. His first assignment thereunder broadly charged that the trial court erred in holding William took a fee simple title under and by virtue of the will. This was broad enough to cover the point on which our opinion decided the cause. And in his brief here, appellant said: "No claim [921] is made that William's adopted daughter is `issue' within the meaning of that term as used in the will, and indeed, no such claim can be made. Graves *576 v. Graves, 349 Mo. 722, 163 S.W.2d 544; Wyeth v. Merchant,34 F. Supp. 785."
¶4Counsel declares he put that statement in his brief as a "No Trespassing" sign to keep this court from wandering away from "the single issue thus tacitly marked out" — that is, the issue arising on the Owens-Men and Millions case. But we think appellant, himself, raised the question whether an adopted child could be "issue" within the meaning of the will, when he put that statement in his brief and cited authority on it. Furthermore, a lawsuit is not a mere contest between opposing counsel. The rights of the litigants are to be considered, especially in construing a will and carrying out the wishes of the deceased testatrix. And under Sec's 10b and 140(c) of the new Civil Code, and Supreme Court Rule 3.27, it has been held the appellate courts in their discretion may consider "Plain errors affecting substantial rights," though not raised in the trial court or preserved for review. Guerry v. Hicks, 355 Mo. 1222, 1225-6(1),200 S.W.2d 343, 345-6(2), 170 A.L.R. 391.
¶5On the merits, we remain of the same opinion, in view of the provisions of the will and the attendant facts stated. The motion for rehearing is overruled.