same proportion as the law would convey | such portion thereof as in the judgment of the same to them in the absence of any my said trustees can safely be distributed will by me, reserving only the burial place where my wife is now buried, and a strip of land two feet in width adjacent thereto on the west, north and east of said burial spot, and I hereby set aside said burial place (spot) and said two feet of land adjacent thereto forever as a resting place or burial spot for my wife and myself; said burial place joins Columbia Cemetery on the northwest corner, which said cemetery is in section 10, township 1 north, range 1 east, Willamette meridian. "My will is and I direct that my estate shall be divided into six (6) shares or parts of equal value, to be disposed of in the following manner, viz: First. I give, devise and bequeath to my son, Fred D. Love, one of said shares or parts. Second. I give, devise and bequeath to my son, Green C. Love, one of said shares or parts. Third. I give, devise and bequeath to my son, Lewis P. Love, one of said parts or shares. Fourth. I give, devise and bequeath to my grandson, William King, a son of my deceased daughter, Malinda J. Shepherd, one-third part of one of said shares or parts. Fifth. I give, devise and bequeath to my granddaughter, Matilda Shepherd, wife of James Shepherd, and a daughter of my deceased daughter, Malinda J. Shepherd, one-third part of one of said shares or parts. Sixth. I give, devise and bequeath to my great-granddaughter, Hazel King, who is a minor child, and a daughter of Albion King, deceased, who is a son of my deceased daughter, Malinda J. Shepherd, one-third part of one of said shares or parts. Seventh. I give, devise and bequeath to my daughter, Mary C. Stafford, one of said shares or parts. Eighth. I give, devise and bequeath to the children of my deceased son, William Love, one of said shares or parts of my estate to be divided among said children as follows: To L. W. Love, the one-fifth part of said share; to John A. Love, the one-fifth part of said share; to Ulysses G. Love, the one-fifth part of said share; to Charles W. Love, the onefifth part of said share; to Frank P. Love, the one-fifth part of said share. be distributed and paid to the devisees pro rata, not oftener than two times in each twelve months. I direct that my trustees make final distribution of my estate on January 1, 1907, or as soon thereafter as practicable, and if my devisees can agree, said final distribution can be by division of my property by such agreement, but if they cannot so agree, then my trustees shall make a division of my property according to the shares and parts of shares in my estate and my devisees can cast lots for their several interests either in person or by their lawful representatives. Be it remembered, however, that in the administration of my estate by my executors, and before they close up my estate, and it passes to them as trustees, all personal property is to be sold, and the proceeds of such sale will belo: g to and become a part of my estate. "In their trust my trustees are hereby empowered to rent property and collect rents, make necessary repairs to property, pay taxes, or to be more explicit, they are empowered hereby to collectively do all acts that I could do were I living, necessary to protect and keep my estate intact for my devisees hereinl efore mentioned. Should a vacancy occur in my trustees, then the remaining ones or one are to act and carry out this trust. This is my only will, but I now refer to a canceled will made by me April 13, 1896, for the purpose of corroborating the idea that it was always my purpose to distribute my property equally between my several children and to the heirs of those of my children who had died, leaving children or grandchildren. "Be it remembered that reference to said canceled will shall not make it a part of this will, but only show what my intentions have always been toward my heirs. Reference to the fact in this will that I am the owner of and have made no deed to certain property, is because I have been informed, reliably, of one fraudulent deed to certain valuable property purporting to have been made by me and also have heard rumors of the existence of another fraudulent deed. "It is my will and purpose that my estate I pronounce and declare all such deeds or shall be kept intact and not distributed to deed as fraudulent; and any and all claims my devisees till January 1, 1907 (nineteen of any person or persons of having genuine hundred and seven). I direct that my ex- deeds or titles to any of the property hereecutors shall proceed to administer upon my inbefore described, are false and villainous, estate at once after my demise, and having and I hereby instruct my executors and in due time closed up my estate as executors, trustees to contest any such claims to the that then my estate shall pass to them as uttermost, that my property may be kept trustees, to be held in trust for my said | intact and saved to my lawful heirs as heredevisees till January 1, 1907, and managed in devised. And lastly, I do hereby revoke by them as such trustees til the time of all other wills heretofore made by me, and final distribution. I direct that my trustees, declare this and no other to be my last will T. T. Struble, Philo Holbrook and H. C. and testament, and desire that of this proof Breeden, from time to time as the receipts shall be taken and admitted to probate as "In witness whereof I have hereunto set | claims thereto, this suit was instituted to my hand this 5th day of January, 1899. determine the issue, and the cause having [Signed] Lewis Love. [Seal.] "The above instrument was at the date thereof signed, sealed, published, and declared by the said Lewis Love as and for his last will and testament, in presence of us, who at his request, and in the presence of each other, have subscribed our names as witnesses thereto. [Signed] O. P. S. Plummer, Residing at Portland, Oregon. Edward Holman, Residing at Portland, Oregon." been tried, and the relief prayed for in the complaint granted, most of the defendants appeal from the resulting decree. Wm. M. Gregory and Dan J. Malarkey, for appellants. H. J. Bigger and Wallace McCamant, for respondent. MOORE, J. (after stating the facts as above). It is maintained by plaintiff's counsel that the will gave to their client an estate At the time the will was made, plaintiff in fee in the premises; that the codicil does was a widower, and two children of a de- not clearly evince an intention to abridge ceased daughter were his only living issue. such absolute interest; that the condition He subsequently remarried, however; but no stated therein, associated with the continissue has resulted from the union. A sup-gency of dying "without lawful issue born plemental testament was made, of which alive and living at the time of his death," the following is a copy: "I, Lewis Love, of does not mean the end of plaintiff's life at Portland, Oregon, do make this codicil to any time, but his decease prior to that of the my will. I hereby expressly confirm my testator, or before a partition of the real last will, dated January 5, 1899, excepting property. It is insisted by the defendants' in so far as the distribution of my property is changed by this codicil. First. I hereby will, decree and declare that the devise or legacy to my daughter, Mary C. Stafford, in my said will, shall be for her sole and sepa、 rate use, independent of her husband at all times, and that at her death the said devise or legacy to her shall go to her children, share and share alike. Second. I hereby will, decree and declare that the devise or legacy, in my said will, to my son, Fred D. Love, shall be for his sole and separate use, independent of his wife at all times, and that at his death the said devise or legacy shall go to his children, share and share alike. Third. I hereby will, decree and declare that the devise or legacy in my said will, to my son, Green C. Love, shall be for his sole and separate use, independent of his wife, at all times, and that in case of his death without lawful issue, born alive and living at the time of his death, then the said devise or legacy to him shall belong and go to the remaining devisees of my said will in proportion as they hold of the shares or parts of my said will. Lastly. I declare this is a codicil to my will, and that this is the only codicil that I have made, and I hereby declare my said will of date January 5, 1899, to be my last will and testament and also hereby re-affirm the same in every particular, except as modified by this codicil, which codicil is to be attached to the said will. Witness my hand and seal this 26th day of February, 1902. [Signed] Lewis Love. [Seal.]" counsel, however, that the clause in the codicil, "in case of his death," means plaintiff's dissolution at any time prior or subsequent to that of the testator or before or after January 1, 1907, when the land was to be divided, whereby they have possible interests in the real property involved, and that in rejecting their claims an error was committed. An irreconcilable conflict of judicial utterance exists as to the occurrence of a possible uncertain incident such as is referred to in In speakthe third clause of the codicil. ing of a similar testamentary direction, a text-writer says: "The general rule is that, where the contest is silent, the words referring to the death of the prior legatee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator." 2 Jarman, Wills (6th Ed.) 719. See, also, Rood, Wills, $ 653. Another author, referring to the same subject, observes: "The intention of testator that dying without issue may mean a death after the death of testator may also be inferred from other provisions in the will. Thus, a provision that, in case of the death of the beneficiary without issue, her share shall revert to the estate of testator, shows that he contemplates her death without issue after his own. So a provision that certain lands shall pass to testators sons after the death of testator's widow, provided that if either dies without issue his estate shall pass to another, shows that the death without issue meant a death after that of testator." Page, Wills, 798. In the excerpt last The testator died July 3, 1903, and, his quoted it will be observed from the allusion will and codicil having been probated and to a testator's "estate," which means the propthe estate settled, the trustees set off to erty he might leave at his death, and from plaintiff the real property described in the the reference to a testator's "widow" which complaint. Several of the devisees execut- necessarily signifies her expected survivored to plaintiff deeds of any possible inter- ship, the intention is deduced that the conest, they might have in his allotment; but, tingency specified is supposed to occur after others of them having asserted adverse the testator's death. In the case at bar it will be remembered that the codicil declares | could incumber the land by incurring exthat, if plaintiff die without lawful issue him penses for the support of the family (Id. surviving, "then the said devise or legacy to 7039), thereby endangering all the real prophim shall belong and go to the remaining dev-erty, except the homestead, to sale on execuisees of my said will in proportion as they tion (Id. § 221). The plaintiff could also hold of the shares or parts of my said will." convey the premises to her in fee. Id. § As the remaining devisees could not take any 7036. The possible consequences suggested estate or interest in the testator's property could be partially thwarted by construing the until his death, the word "hold," as used in gift to plaintiff "for his sole and separate the third clause of the supplemental testa- use, independent of his wife at all times," ment, manifests an intention that the decla- as manifesting an intention on the part of ration of the contingency of plaintiff's death the testator to bestow a life estate only. As without issue meant his decease subsequent all property of the judgment debtor, except to that of the testator. If, however, the the homestead, is liable to execution (L. O. condition of death without lawful issue living L. § 227), it follows that, if plaintiff acquired related to January 1, 1907, when the real a life estate in the real property, such interproperty was to have been partitioned, it est might be subjected to all the incidents may be supposed from the testator's ad- indicated, except dower, so that, in all other vanced age when the will was made that he particulars, the attempt to restrict the rights could not reasonably have expected to live of plaintiff's wife was almost unavailing. until that time, and that at his departure the The codicil makes no arrangement for plaindevisees would have become vested with an tiff's lawful issue in case they survive him; estate in the lands which thereafter they but, if he took a fee in the land, no provicould hold within the meaning of that word. sion to that effect was essential. A devise of real property is deemed to be a gift of all the testator's estate in the premises subject to his distribution, "unless it clearly appears from the will that he intended to devise a less estate or interest." L. O. L. § 7344. "All courts and others concerned in the execution of last wills shall The limitation over is not indefinite, but have due regard to the directions of the will, takes effect at plaintiff's death without lawand the true interests (intent) and meaningful issue him surviving. 17 A. & E. Enc. L. of the testator in all matters brought before | (2d Ed.) 564. If he took a fee in the lands, them." Id. § 7347. such interest would formerly be reduced by the limitation over, upon a definite failure of issue, to an estate in fee tail. Hill v. Hill, 71 Pa. 173, 15 Am. Rep. 545. It has been suggested, however, that the statutes of this state, permitting alienation of whatever interest a grantor has in real property, impliedly repealed the statute de donis, which ancient enactment converted estates in fee simple conditional into estates in fee tail. Rowland v. Warren, 10 Or. 129. [2] If he were given a life estate, however, and his grandchildren took a fee conditional with a remainder over as an executory devise in case of their death prior to his, and such was the testator's intention, his purpose might in the greater part be effectuated. [1] In the examination of a manuscript, in order to ascertain the intention of a party, courts will take into consideration the ability of the person who drew the instrument correctly to express the terms, objects, and purposes desired. Thus in Saunders v. Saunders' Adm'r, 20 Ala. 710, 716, in construing a marriage contract it was held that the intention of the parties was to be gathered from an examination of the entire agreement, though the conclusion reached was contrary to the express provision of a particular clause; the court saying: "This rule we apply in the present case with the less hesita-heritance are not essential in Oregon to cretion, for the reason that the settlement bears upon its face the most palpable marks that it was drawn by a person who was not only entirely ignorant of legal forms, but incapable of expressing his meaning with clearness and precision." In the case at bar the testimony shows that the codicil was written by a person evidently unable to express in proper legal form the testator's directions. If the third clause of the supplemental testament transferred an estate in fee to plaintiff, his wife has an inchoate right of dower in the premises, which interest, if she survives him, will become a life estate of an undivided one-half unless she is lawfully barred thereof. L. O. L. § 7286. If the absolute estate to her hus [3] The absence of the word "heirs" from the codicil does not necessarily imply that a life estate only was given, for words of in ate or transfer an estate in fee simple (L. O. L. § 7103), so that, if plaintiff took by the codicil an absolute estate, any attempt to limit a fee upon such a fee will not be sanctioned. It is argued by plaintiff's counsel that the third clause of the codicil is so different from the first and second, which were employed by the testator to cut down the fee-simple estate given by the will to Mary C. Stafford and Fred D. Love, that a purpose is disclosed to devise to Green C. Love more than a life estate. A comparison of the first and second clauses with the third will show that the differences observable are in the phrases "that at her death" and "that at his death" in the former, and "that in case of his death" the condition, "without lawful issue, born | the first taker, in express terms or by implialive and living at the time of his death, cation, is not applicable where the gift is then the said devise or legacy to him shall clearly of a less interest." belong and go to the remaining devisees of my said will in proportion as they hold of the shares or parts of my said will." No attempt will be made to reconcile the conflicting decisions or to determine the weight of authority upon the question of death of a devisee in connection with some collateral fact, supposed to happen either before or after the death of a testator, but the decision of this cause will be placed on what is believed to be the purpose of Lewis Love respecting the objects and the extent of his bounty. [6] The intention of a testator is the guide in construing the terms of his last testa ascertained, it controls the disposition of his property. Shadden v. Hembree, 17 Or. 14, 20, 18 Pac. 572; Jasper v. Jasper, 17 Or. 590, 593, 22 Pac. 152; Portland Trust Co. v. Beatie, 32 Or. 305, 309, 52 Pac. 89. [4] The testimony shows that when the codicil was made plaintiff was 52 years old and his wife 46, and for the time of their joint lives, or during his life if he should survive her and remarry, the law will presume the possibility of issue. Hamilton v. Sidwell, 131 Ky. 428, 115 S. W. 204, 29 L. R. A. (N. S.) 961, and note on the rule in Shelly's Case, 29 L. R. A. (N. S.) 961, 1021. In view of such presumption, it is unreason-ment, and, if his design can reasonably be able to suppose that the testator desired to exclude this son's lawful issue from taking the share to which each would be entitled if living at the time of plaintiff's death. As such issue would take a proportion of the share set off to Green C. Love, based on the ratio determined from the number of his children, his grandchildren would take the part of their mother by representation and not a full share in case other lawful issue survived plaintiff's death. These possible conditions and the manifest purpose of the testator to prevent plaintiff's wife from acquiring an estate in fee or a dower right to any part of the land evidently induced the difference noticeable in the codicil respecting the devises to Mary C. Stafford, Fred D. Love, and Green C. Love, each of whom in our opinion took only a life estate. If, after giving a fee to plaintiff, the will had also included the third clause of the codicil, it is possible that a presumption might be invoked that the condition of dying without living issue would be construed to mean the death of plaintiff before that of the testator, so that on the happening of the latter event the absolute estate would have become vested in Green C. Love of which he could not have been deprived on account of any failure of issue him surviving. But, however this may be, the legal principle thus adverted to can, in our opinion, have no application to the case at bar, for in so far as the codicil conflicts with the will it is the last expression of a testamentary disposi tion of property, revoking the will to the extent of the disagreement in their provisions and preventing a construction of their terms with reference to each other. [5] It will be remembered that the will directed the executors to sell the personal property and settle the estate, after which, as trustees, they were empowered to lease the real property, collect rents, make necessary repairs, and pay taxes; but, as they were required to protect and keep the real estate in- [7] Examining the will and codicil as each tact for the devisees, they were impliedly dovetails into and thus necessarily becomes prohibited from selling any part of the prem- a part of the other, and regarding plainises. We conclude, therefore, that they never tiff, who is the first taker, to have been the took the legal title to, but held the posses- favorite object of the testator's bounty, and sion of, the land, and that their duties were as such entitled to the benefit of every imfully discharged when they had divided the plication in his favor, but considering the premises into six parts of equal value and conflicting provision of the codicil as revokset off the several shares to the devisees en- ing the will pro tanto, we nevertheless betitled thereto who at the death of the tes-lieve that the term "use," as employed in tator and prior to such apportionment took, the supplemental testament and as modified as tenants in common, a vested estate in fee in the real property. The rule of construction prevailing in most states of the Union is that a devise of a fee, coupled with a condition that if the devisee die without issue the estate is to go to others, means dying without issue in the lifetime of the testator, unless a different intention is manifest from the context of the will. "The presumption that the contingency of dying without issue," says the author of the exhaustive note to the case of Lumpkin v. Lumpkin, 25 L. R. A. (N. S.) 1063, 1064, "is to be restricted to testator's lifetime being fundamentally limited to cases where an absolute gift is made to by its other provisions, clearly evinces an intent on the part of Lewis Love to give to plaintiff a life estate only, since that word, when applied under similar conditions, generally means the transfer of an interest in land of that duration. 8 Words & Phrases, 7228; Brunson v. Martin, 152 Ind. 111, 52 N. E. 599; Spooner v. Phillips, 62 Conn. 62, 24 Atl. 524. 16 L. R. Á. 461; In re Metcalfe's Estate, 6 Misc. Rep. 524, 27 N. Y. Supp. 879. The deduction that plaintiff took only a life estate is strengthened by the provision of the codicil which treats the premises to be partitioned to him as remaining undiminished at his death, thereby im pliedly denying to him the right of aliena- It follows from these considerations that tion. The determination thus reached leaves the decree is reversed, and the suit disfor consideration the inquiry of who were missed. intended as the devisees in fee of the land, and what is the order of their respective BURNETT, J. I dissent from the opinion rights. of the majority of the court in this case. [8] It is a well-recognized legal principle All agree that except for the codicil Green that an heir at law can only be disinherit- C. Love takes an estate in fee simple. Uned by express devise or necessary implication. Bender v. Deitrick, 7 Watts & S. (Pa.) 284, 287. That the testator did not intend to exclude plaintiff's grandchildren from sharing his estate in case of the death of Green C. Love, if they or either survive him, appears to be manifest from a clause of the last will, to wit: "It was always my purpose to distribute my property equally between my several children and to the heirs of those of my children who had died, leaving children or grandchildren." Though neither of these great-grandchildren is named in the will or codicil, nor is any provision expressly made for them, we think it is fairly disclosed from the context of the codicil that, if either were living when plaintiff died, such survivor or survivors would take the real property or a part thereof in fee by implication. [9, 10] The term "issue," as used in the codicil, includes, among others, grandchildren (17 A. & E. Enc. L. [2d Ed.] 544), and since plaintiff's lawful issue of that degree were in esse when the supplemental testament was made, and as he took by the codicil only a life estate in the land, they, as remaindermen, became vested with a fee conditional at the death of the testator subject to such life estate and to the possibility of their interest being diminished by the birth of other issue, and to the remainder over by way of executory devise to the other devisees, in case these grandchildren or any other issue of plaintiff do not survive him (30 A. & E. Enc. L. [2d Ed.] 701; Still v. Spear, 3 Grant, Cas. [Pa.] 306; Sturges v. Cargill, 1 Sandf. Ch. [N. Y.] 318). less defeated by the supplementary testament, that estate continues. As to Mrs. Stafford and Fred D. Love, the testator left no doubts. No uncertainty is annexed to the certain event of the death of either of them. At their death, whenever that comes, there is the remainder to their children. But, as affecting the course of descent in the case of Green C. Love, the certain event of his death is turned into an uncertainty by the annexation of the condition that it shall be "without lawful issue born alive and living at the time of his death." These words should be considered only as a qualification in favor of the remaining devisees of the will, for they would have precisely the same potency in construing that document if Green C. Love had never married. We cannot say as a matter of law that the possibility of issue born alive to Green C. Love by his present wife is extinct. If such a child should be born and should outlive its father but die without issue before its mother, she would inherit from it. The will has not cut off her inheritable quality in such an instance, and why should it in others unless clearly so nominated in the testament? The words relating to the death of Green C. Love without issue are of use only to determine the dilemma of whether the fee goes to him or the "remaining devisees." By a natural construction of its language the third paragraph of the codicil passes the property therein mentioned either to Green C. Love or to those designated therein as remaining devisees. The descendants of Green C. Love are referred to only in the negative. They are not mentioned affirmatively as devisees. This conclusion, in our opinion, upholds The codicil casts no estate upon them. As the testator's intention as gathered from the will and codicil when viewed in their entireties where necessary, and considering the supplemental testament as a last will which revokes the prior will in so far as it conflicts therewith. If Lewis Love had designed that the remaining devisees should take as remaindermen, on the termination of plaintiff's life estate, and that the lawful issue of the latter who should be living at his death were to be excluded, there would have been no need to refer to such contingency; but the allusion to plaintiff's decease under the condition indicated shows a purpose that such issue, if surviving, should take the remainder, though not so expressly stated, and, if plaintiff should die without lawful living issue, the remaining devisees are to take the lands in fee as an executory his kindred existed when he made the will, |