Harwood, J.
In this action there is no controversy as to the facts. The questions involved which demand our consideration relate to the construction of a will, and the proper distribution to the devisees thereunder, acóording to the terms of the will and the law governing. In September, 1885, Walter F. Chadwick died in the city of Helena, in Montana Territory, where he had long been a resident. The deceased left a last will and testament, bearing date April 6, 1882, whereby he appointed the appellants, Benjamin H. Tatem, John C. Curtin, and William C. Bailey, executors thereof. This will was duly admitted to probate, and the executors entered upon the duties of its execution. By the terms of his will the testator devised to his wife, Norma D. Chadwick, all of the personal estate of testator after paying his debts, and an undivided two thirds of all real estate of which the testator died seised, excepting there*361from “all mining property, either quartz leads or lodes, or placer ground, or fire-clay lands, with water rights and mill sites.” Of the said mining property, quartz leads or lodes, placer ground, fire-clay lands, together with water rights and mill sites, the testator devised to his said wife one undivided half, and the other half thereof he devised to the respondents, to be distributed to them in share and share alike. After the execution of said will, and on the twentieth day of January, A. D. 1885, the testator, and his wife, Norma D., joining with him, made and executed a deed of conveyance of certain mining property described therein, then, and at the time of making said will, owned by the testator, to one Charles A. Broadwater, grantee. The consideration named in said deed was $37,500. At the time of executing said deed a certain contract or memoranda referring to the same was made and signed and acknowledged by said Walter F. Chadwick and his wife, Norma D., and said Charles A. Broadwater, which provides as follows: “The enclosed deed of the following described property, viz. [here follows a description of the property set forth in the deed]; also a contract for the conveyance of the Sixty-ninth lode, and another contract for the conveyance of the Little Sampson lode — all of said property being more particularly described in said deed —is hereby placed in escrow in the Montana National Bank. If Charles A. Broadwater shall place to the credit of Walter F. Chadwick, to the credit of his heirs, administrators, or assigns, the full sum of $33,750 on or before the first day of September, A. D. 1885, then and in that case the Montana National Bank is authorized to deliver the enclosed deed to Charles A. Broadwater or his order. In case the said Charles A. Broadwater shall not place, or cause to be placed, to the credit of said Walter F. Chadwick, his heirs, administrators, or assigns, the sum of $33,750 in said Montana National Bank on or before the first day of September, A. D. 1885, the bank is hereby authorized to deliver the said deed to Walter F. Chadwick or his order, his heirs or assigns. It is further agreed that no ore excavated by said Broadwater on or from said premises between the date hereof and the said first day of September, or until the payment of the sum above specified, shall be removed from the dump of said property; and that, in case of failure to *362pay said sum at tbe time specified, the same, and all moneys paid by the said Broadwater to said Chadwick, shall become forfeited, and said Chadwick may retain the same as liquidated damages; and said second party shall not create any liens on said property. It is further agreed that said Chadwick will clear the said premises of and from any and all encumbrance, if any there be, now existing and of record, done, caused, or suffered by him.”
Another contract was made at the same time, and in reference to the same transaction, signed by the testator, Walter F. Chadwick, and said Charles A. Broadwater, which provides as follows : “ That said parties of the first part [Chadwick and wife], for and in consideration of the sum of $33,750 to them in hand paid by the second party, the receipt whereof is hereby acknowledged, and for certain other considerations mentioned and expressed in an escrow agreement deposited with a certain deed of conveyance in the Montana National Bank of Helena, of the following described property, situate in Ten-Mile unorganized mining district, in the county and Territory aforesaid, viz. [here follows a description of the property described in the deed]; all of which property and premises are particularly described in said deed, which bears even date herewith, the same having been as aforesaid executed by said first parties to said Broadwater, and which said deed is to become effective on the compliance with the conditions expressed in said escrow agreement by said second party. ' Now, therefore, the said first parties hereby agree to and with said second party that, upon compliance with and the fulfillment of the conditions named and expressed in said escrow agreement to be done and performed by said second party, the said deed so deposited shall be delivered to said second party, and the title to said property and the premises therein described shall be and become absolute in said second party, his heirs, etc., according to the covenants and provisions in said deed contained.”
The said deed and contracts were placed by the parties thereto in the custody of the said Montana National Bank, to be disposed of according to the conditions set forth in said contracts. The transaction and the papers remained in this condition until near the time for the fulfillment or forfeiture on the part of Broadwater, when, on the 18th of August, 1885, said Walter F. *363Chadwick and Broadwater entered into a third agreement in writing respecting the transaction. The effect of this third agreement was to redace the sum to be paid on the final taking up of said deed by Broadwater from the sum of $33,750 to the sum of $22,500, and to extend the time within which Broad-water might pay said last-mentioned sum from the first day of September, 1885, to the first day of January, 1886. While the transaction remained in this state, and on the twenty-eighth day of September, 1885, the said Walter F. Chadwick died, leaving his last will and testament, with the provisions aforesaid; and thereafter, on the thirty-first- day of December, A. D. 1885, the said Broadwater deposited in the said Montana National Bank, and paid to said executors the said sum of $22/500, in fulfillment of the conditions of said transaction on his part; and thereupon said bank delivered to said Broadwater said deed. Now a contention has arisen between the executors and Norma D. Chadwick, the appellants, on the one side, and the other devisees, respondents, on the other, as to the proper distribution of said sum of money arising from said sale of mining property, under said will. The appellants claim that this entire fund should go to the widow, Norma D., under the provisions of the will giving her the personal property; while the respondents contend that this fund should be distributed as provided under the will for the division and distribution of said mining property, of which they claim the testator died the owner; that is, one half thereof to the widow, Norma D., and the other half thereof to the other devisees in equal shares.
In the absence of statutory provisions the solution of this question would be attended with much difficulty. There are, however, statutory provisions which have a bearing upon this contention, and these provisions command the first consideration by the court. The statute of this State in reference to the execution and revocation of wills, at sections 461 and 463, Probate Practice Act, provides as follows: “Sec. 461. An agreement made by a testator for the sale or transfer of property disposed of by a will previously made does not revoke such disposal, but the property passes by the will, subject to the same remedies on the testator’s agreement for a specific performance, or otherwise, against the devisees or legatees, as might be had against the tes*364tator’s successors, if the same had passed by succession.” “Sec. 463. A conveyance, settlement, or other act of a testator by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation, but the will passes the property which would otherwise devolve by succession.” If the transaction between the testator and Broadwater only amounted to an agreement for the sale or transfer of the said mining property, then the position taken by appellants cannot be sustained. Again, if the transaction in question amounted, in the language of the statute, to “a conveyance, settlement, or other act of the testator, by which his interest in the thing previously disposed of by his will is altered, but not wholly divested,” the position taken cannot be sustained.
The question is, did the transaction amount to a complete divestiture of the title by the testator? We think not. Where was the title to this property while Broadwater had the option to purchase? Can it be said it was vested in Broadwater? The deed lay as a dormant instrument in the custody of the bank, without efficacy as a conveyance, until a certain condition was performed by Broadwater, and a delivery of the deed was made to him by the bank. The conditions were such that, if Broad-water did nothing, the title remained in the testator, and passed by his will to the devisees; but, if he performed the conditions, that is, paid the sum of $22,500 within a certain time, and obtained from the bank a delivery of the deed, then the title thereby passed to him. It is frequently asserted by the decisions of courts, and by eminent authorities, going back as far as Lord Coke, that the general rule is that au instrument delivered in escrow takes effect only on the performance of the conditions and the second delivery, and is not operative until the conditions are performed and the second delivery is made. This doctrine is decisive of the question under consideration. If the deed is inoperative until the performance of the conditions, it follows that the estate is “ not wholly divested,” and passes by the terms of the will.
In answer to this line of reasoning, counsel for appellants invoke the aid of authorities where it is held that to prevent injustice, or to prevent the defeat of the plain intention of the parties, courts of equity will allow the second delivery of the *365escrow to take effect by relation from the time of the first delivery. Let this be granted, and does not the proposition carry with it the conclusion that the act which consummates the divestiture is the performance of the condition and the second delivery? And this second delivery may be given so great a force as to be allowed to relate back in its effect to the first. But this doctrine of relation, which in some of the decisions is called a “ fiction,” is the exception to the rule applying to escrow instruments, and hot the general rule.
It is contended, also, by appellants, that if the title remained in the testator until the conditions were performed and the second delivery was made, the testator having died some months before the second delivery, the effect is that the title remained in the deceased until the condition was performed, and then passed from him to Broadwater, which is not consonant with reason, or with the rules of law; that if the testator died seised of said mining property, September 28, 1885, and the title did not pass to Broadwater until the second delivery, December 31, 1885, the title passed from the deceased on the latter date, which could not be, as the title could not remain in the deceased during the period from September 28 to December 31, 1885, and then pass from him to Broadwater. Hence the title had to pass, if at all, from the first delivery. This position will not stand the test of legal rules and reason. When the testator died, his will became operative, and by virtue of the will and the law the title passed to the devisees, subject to such conditions as the testator had placed upon it in his transaction with Broadwater. (Comp. Stats. [Prob. Prac. Act] §§ 461,463.) The testator had not only made a will touching the property in question, but he had placed other conditions upon it, by virtue of which it might or might not pass away from him or his devisees. The law joins these two provisions together, and provides that both shall have effect upon the property. The will passes the property to the devisees, subject to the conditions. The conditions being fulfilled, the act of the testator carries the title away from the devisees to another. This conforms to the statute quoted supra. These provisions were evidently enacted to change a rule of long standing, by which, if real property be devised, and after the execution of the will, the testator makes a contract to sell the *366same; this was construed as a revocation of the will as to such property, and the further rule that such a transaction wrought a conversion of such property from real to personal estate. We are of opinion that the case at bar is controlled by the statute. Chancellor AValworth, in the case of Knight v. Weatherwax, 7 Paige Ch., 182" court="None" date_filed="1838-05-01" href="https://app.midpage.ai/document/knight-v-weatherwax-5548360?utm_source=webapp" opinion_id="5548360">7 Paige, 182, places this construction upon a similar statute existing in New York. He had to view the same question here under consideration, and he says: “ Whether the two lots were to be considered as real or personal estate after the making of the agreement to sell the same, the interest of the testatrix therein passes to the objects of her bounty, as specified in the first clause of her will, in the same manner as if that agreement had not been made; subject to the complainant’s right to a specific performance of the contract, upon payment of the purchase money and interest, according to the terms of his agreement.”
We v/ill now consider the two remaining questions brought up for our determination by this appeal. First. The appellants claim that said “Norma D. Chadwick is entitled, in addition to the legacies and bequests in.her behalf contained in said will, to a dower interest of, in, and to all lands and real property of which the said Walter F. Chadwick died seised, which dower interest should first be carved out of said real estate, prior to the distribution thereof to the devisees in said will.” Second, That all property mentioned in the said will was at the death of the testator “community property,” and by reason thereof said wife, Norma D., was entitled to one half of all of said property, in addition to the property devised to her by said will. Here are two claims put forth, predicated upon the proposition that, under the law as it then existed, the widow is entitled to dower, and in addition thereto is entitled to one half of what is termed “ community property.”
Proceeding in the order stated, first as to dower. In 1876 (Laws 9th Sess. p. 63) the legislative assembly of Montana passed an “ act concerning dower,” which provided what interest in the lands of the husband the wife should be endowed of; when dower should attach; the manner by which it coulcl be claimed and enforced, or relinquished, or superseded by other benefits; and, in general, the act covered and controlled the subject of dower. While it is not directly disputed that this act *367has continued in force since its adoption, still this point is brought to the attention of the court, and should be determined. It does not appear that said act concerning dower has ever been expressly repealed; but the question arises as to whether it has been repealed by implication; and this arises from the fact that two general compilations of the statutes of Montana have been made since the passage of said act, in neither of which has it appeared. The first compilation of 1879, known as the “Revised Statutes of Montana,” does not incorporate said “ act concerning dower.” ~We must now examine and determine whether the repealing clause embodied in section B, chapter Ixx. of the Revised Statutes, repealed the “Dower Act.” Section B is as follows: “All acts of the legislative assembly passed prior to said twenty-first day of February, 1879, or on said day, any portion of which is embraced in any section of said codification, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such codification having been repealed or superseded by subsequent acts, or not being general and permanent in their nature; provided, that the incorporation into said codification of any general and permanent provision taken from an act making appropriations, or from an act containing other provisions of a private, local, or temporary character, shall not repeal, or in any way affect, any appropriation, or any provision of a private, local, or temporary character, contained in any of said acts, but the same shall remain in force; and all acts of the legislative assembly passed prior to or on said last-named day, no part of which are embraced in said codification, shall not be affected or changed by its enactment.” Proceeding to the Compiled Statutes of 1887, we find the repealing section (2072, ch. cxxiv.) is verbatim with that of the Revised Statutes of 1879, except the change in date. It is unnecessary, however, to consider the latter compilation, except by way of illustration of this subject, for two reasons: First. All the facts involved in this consideration arose prior to 1887. Secondly. In 1887 Congress passed an act providing for dower to the widow in this and other Territories; thereby placing the question beyond repeal by our legislative assembly while we remained in a territorial condition. Act of Congress entitled “An act to amend an act entitled ‘An act to amend section 5352 *368of tbe Revised Statutes of the United States, in reference to bigamy, and for other purposes;’ approved March 22, 1882.” (24 Stats, at Large, 635.)
The question, then, is, did the repealing clause in the Revised Statutes of Montana of 1879 repeal the “act concerning dower,” approved February 11, 1876, supra? The terms of such repealing clause, when carefully considered, are very clear, and show exactly what was intended to be repealed. “All acts of the legislative assembly passed prior to the twenty-first day of February, 1879, or on said day, any portion of which is embraced in any section of said codification, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof.” So far, the repealing clause has not touched the “act concerning dower.” The subsequent portion of that clause, down to the proviso, is explanatory of what went before, in these words: “All parts of such acts not contained in such codification having been repealed or superseded by subsequent acts, or not being general and permanent in their nature.” A proviso is here inserted in the section, which does not affect said “act concerning dower ”; and the section closes as follows: “ And all acts of the legislative assembly passed prior to or on said last-named day, no part of which are embraced in said codification, shall not be affected or changed by its enactment.” It is clear that no part of the “act concerning dower” is embraced in said codification; and therefoi’e we think it follows, without doubt, that said act is not repealed, but has stood in full force, although from some cause it was not incorporated in said codification. We have nothing upon which to base even an inference that it was the intention of the legislature to repeal this “act concerning dower.” It was the law in full force when said codification was made, and the subject of dower is entirely wanting in the compilation of 1879- Repeals by implication are not favored by the law', and the strong leaning of the courts is against the doctrine. (Potter’s Dwarris on Statutes, 154-160, and eases there cited.)
Sections 6 and 7 of said “act concerning dower” are decisive against the position that said Norma D. is entitled to dower in addition to the devise and bequests under the will. Said sections provide as follows: “Sec. 6. Every devise of land, or *369any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands, and her share in the personal estate. Sec. 7. When a woman shall be entitled to an election under this act, she shall be deemed to have taken such ^devise, unless within one year after the authentication or probate of the will she shall deliver or transmit to the court of probate of the proper county a written renunciation, which may be in the following form, to wit: ‘I, A. B., widow of C. D., late of the county of-, Territory of Montana, do hereby renounce and quit all claims to the benefit of any bequest or devise made to me by the late will and testament of my said deceased husband, which has been exhibited and proved according to law (or otherwise, as the case may be); and I do elect to take, in lieu thereof, my dower or legal share of the estate of my said husband;’ which said letter of renunciation shall be filed in the office of the probate judge, and shall operate as a complete bar against any claim which such widow may after-wards set up to any provision which may have been thus made for her in the will of any testator, in lieu of dower; and by thus renouncing all claims, as aforesaid, such widow shall thereupon be entitled to. dower in the lands, or share in the personal estate, of her husband.” It appearing by the record that the widow, Norma I)., has not renounced her rights under the will, but, on the contrary, has taken thereunder, she is barred from now claiming dower.
Upon the question of “community property,” we find no difficulty in determining the rights of the appellant, Norma D. Chadwick, under the facts presented in this case. The provision relied upon by the appellants is found in section 551, Probate Practice Act, as follows: “ Upon the death of the husband one half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and, in the absence of such disposition, goes to his descendants equally, if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation.” It is claimed by appellants that the whole *370estate which the testator devised and bequeathed was “community property.” While we do not here decide or imply that the appellants’ position as to what is “community property” is correct, it would appear that, if appellants’ position is conceded for the purpose of this discussion, it would not change the rights of the widow, Norma IX, as she has, by virtue of the will, more than one half of the whole estate. We nowhere find provisions that would entitle the widow to one half by virtue of the statute and any part of the other half, which is otherwise disposed of by will. The statute implies the contrary by declaring that the “other half is subject to the testamentary disposition of the husband,” supra. We are clearly of the opinion that the few, vague, and indefinite allusions of the Probate Practice Act in reference to community property do not apply to the case at bar in such a way as to change the rights of the devisees under the will in question. We therefore do not feel called upon, in this action, to trace the question further, to determine what application these few statutory references to community property might have to other cases. This species of property right, called “ community property,” is certainly not indigenous to this jurisdiction; and, as an exotic, it has not been transplanted with sufficient root to develop a form having definite attributes or symmetrical proportions. The judgment of the court below is affirmed, with costs.
Blake, C. J., and De Witt, J., concur.