*1 108' thing and one lowering “beams

of his observation involved the ’’ he had that, that from such observations íike another —stuff ought for opinion clamps to have been used formed the screw pulley tank attaching segment purpose respect screw-clamps testimony ir- chains. His the use of and should have excluded. relevant been respondent may on another trial As establish able usag’e competent evidence, he will be common contended for af- judgment of opportunity so. The court forded to do circuit All is reversed and the cause remanded. concur. Dalby Appellants, John N. al. 5 S. W.

Thena Ewart et et al., (2d) 428. One, March

Division 1928. O rri C5* *2 B. M. appellants. Niakols for

Ill *4 Eliot, Boyle Blayney Bedal, Priest, Moloney, Nagel & & E. Robert Carter, Turney Kirby, Buder, Buder & Jones & & Karold R. respondents. Small for *5 by plaintiffs an action instituted under C. This is

SEDDON,- alleged (Sec. 525,'' 1919) paper writing a R. to establish statute S. Sublette, will and testament of Solomon P. after the be the last City rejected, had of St. and refused Probate Court Douis of, alleged will. action was October probate said The commenced on defendants 1907, against filing certain individual of a 7, the individual defendants petition which and were Sublette, n only at law of said Solomon P. alleged to heirs b’é alleged only Upon under said' as will. as well beneficiaries City of jury ‘Louis, in the Court of- St. a Circuit trial before a establishing writing paper the last plaintiffs had a verdict as judgment P. was Sublette, and and testament of said Solomon verdict December 1907. said oh Subse entered accordance during term court which quently,' at such was re and verdict stranger judgment entered, Terry, was and tlie thereon one turned therein, suggesting he and other action, filed a motion to the claiming probate will, of said to own parties interested were city large valuable tracts of located hold and land title purchasers Sublette, under said Solomon P. Louis,- as heirs and St. judg verdict and said circuit court to set aside the praying the issues, and new trial of the and to order a entered aforesaid ment -to said lands affected claimants'of he other .title in said ac appearance as defendants their allowed to enter by an order court, of its own motion and circuit said tion. judgment term at which during at the same of record entered establishing judgment that said verdict and entered, directed naught such held, for and from order aside be set said resulting in court,- an affirmance this plaintiffs appealed to which (See Peniston, Ewart v. 233 Mo. 695, m.svby this court. order steps complete procedural recital of-the facts and full and contains'a stated.) hereinabove of the ‘Circuit Court 29, 1926, plaintiffs, leáve January On bring- petition, action an said amended City Louis, filed of St. making National Lead parties plaintiff, ing in additional *6 Company; Anheuser-Busch, Incorporated;. St. Smelting Louis & Refining Company; Hydraulic-Press Brick Company; Evens & How- ard Fire Brick Company; and Carondelet Foundry Company (cor- .parties porations), defendant. petition The amended was further by amended interlineation July on 6, appears 1926. It from the al- legations of said petition amended claim to be all of the heirs of Samuel Sublette, Joseph Hill Burton Sublette, Stablette and Littleberry Sublette, deceased, who only were the heirs of Philip A. Sublette, who deceased, was the father of the Solomon P. Sublette. The allegations salient of peti- the amended as tion, by amended interlineation, are as follows: “Plaintiffs cause of action state for that Solomon P. Sublette, C.ounty Louis, City of St. now Louis, resident of of S't. Missouri, county about, to-wit, August in said on or 30, 1857; died that on, day to-wit, April, 1856, County 15th of St. Louis, P, lifetime, his the said Solomon Sublette made and executed signed testament, writing, will and said testator, last attested request thereto, witnesses who subscribed their names two at the presence,- in his which will said testator and said in words figures following, to-wit: “ man, I, Sublette, 'In name of God and Solomon P. of the my Missouri, dispose County Louis, property of St. State of , follows: “ paid. just That all ‘First. debts be “ my Bequeath wife, Frances, personal to beloved all ‘S'econd. Louis, property Counties of St. Jackson and real estate Cole, property bequeath elsewhere, and her death all said at single my (Fannie), and if daughter, Frances she dies my brother, Pinkney Sub- issue, and without W. unmarried single if and unmarried and without lette, living, and at his death my my of kin on father’s bequeath I said next my testament. side. This will and last “ my day April, hand and seal, this 15th ‘In witness whereof Louis, farm near St. Missouri. on SolomoN P. Sublette. “ ‘Witnesses: “ Smith, ‘E. C. “ Thompson.’. S. ‘James to-wit, on Sublette, of said Solomon P. after the death

‘.‘That Probate Court -presented was 14, 1896, the said will December Missouri, proof Louis, probate, for and due City St. P. Sub- said S'olomon and of the fact that the the same execution was making of the said mind at the time lette was of sound presented probate court, to Said that on said said date rejected. probate was said court . . . Sublette,

“Plaintiffs further aver that Frances widow of Solomon given in Sublette, P. said will a whom life estate, died September, (Fannie) the said E'sther Frances Sublette *7 1861, infancy, single, May' 16, on in died unmarried and without Pinkney issue, and that the said "W. Sublette died after the death Sublette, issue; of unmarried and without Esther Frances . . corporate defendants The above-named demurred to the amended following grounds: upon petition, the petition amended That said second does not facts

“1. state suf- a of action. to constitute cause ficient probate plaintiffs are not interested’in the

“2. of al- That leged in petition pro- will forth said second amended set under 525, of Missouri, 1919, Revised Statutes under visions of Section 1899, 4622, Missouri, of Section Revised Statutes of provisions competent-to bring are, therefore, not this suit. jurisdiction subject-matter That the court has no of of “3. action. this probate not interested in plaintiffs

“4. That the are plaintiffs’ petition, because will forth in amended even alleged set' will S'olomon to be the last testament of paper so referred alleged from the face of the said will and appears it on Sublette, P. (Fan- petition that Frances allegations of said amended Sublette, acquired, upon P. the death nie) of said Solomon , daughter to Sublette, simple an absolute in P. title fee of S'olomon said ancestors, plaintiffs herein nor their and that neither the property, claim, in they petition, as set forth said amended ac- through whom under will.” quired any interest said said petition, demurrer said amended sustained the The circuit court' further, court, plead open declined to whereupon plaintiffs, dismissing plaintiffs. the action at the cost judgment was entered allowed entered, plaintiffs were judgment of dismissal From so. n appeal to this court. a statutory action establish purely a instant suit I. The allegations by of their plaintiffs, will, and therefore rejected statutory re strictly within the bring themselves petition, must action; right of necessary to confer quirements action, cause petition states no otherwise, the 674; 246 Gruender McQuillin, v Mo. rel. ex [State (Sec. 1919), under 525, R. S. The statute 267 Mo. Frank, 713.] v. action, the instant seek to maintain plaintiffs which the by virtue purpose has for its requires that a suit which specifically by terms its has been of a will which and establishment object proving rejected probate” “person must be interested instituted a “person interested in the statute, such will. The words of the judicially probate defined been construed and have will,” person a “a pecuniary this court to mean who has direct interest question as in the final determination of the whether the instru Mo. Reuther, v. ment is the last of the decedent.” [Braeuel 603, 604; Frank, 718; 713, Gruender State v. Mo. ex rel. v. McQuillin, 246 Mo. Teckenbrock 674, McLaughlin, 246 Mo. 711, 719; Alderson, Watson v. 146 Mo. It therefore fol 343.] that, allegations, plaintiffs’ petition lows unless the herein dis plaintiffs pecuniary close that a direct final interest question alleged paper writing determination whether the Sublette, bring is the of Solomon so within plaintiffs last P. parties designated “person(s) the class of i. statute, e., in ” probate purported will, petition terested fails to .such the. action, state sufficient to of- facts constitute cause and the trial ground. rightly petition court sustained the demurrer alleges petition constitute, herein are, “all *8 Joseph Sublette, Sublette, of the of S'amuel Burton Hill heirs Sub- Littleberry only Sublette, deceased, who the of lette and were heirs of Phillip Sublette, deceased, latter whom of A. the was.the father Sublette, deceased, probate P. of last will and Solomon the whose ’’ sought. paper writing, testament is herein Under the instrument or alleged petition the the last will and in be testament of Solomon Sublette, purported disposition P. testator to- make the of all of his following (1) my in personal, the property, real and manner: “to (2) my at her death” wife, daughter, Frances, beloved “to n (3) (Fannie),” “and if single dies she im- Frances. my married and brother, Pinkney without Sublett, W. if liv- ing,” (4) single at death, “and and unmarried and my issue my ... next kin of on father’s respec- side.” The persons tive deaths of the by mentioned purported name in s.everal the alleged are in petition the to have following occurred on the dates: Solomon P. Sublette, August the testator, 30, 1857; Frances Sublette, widow of testator, 1857; September, (Fan- Esther Frances nie) -Sublette, daughter testator, May 16, 1861; Pinkney W. Sublette, (exact brother testator date alleged) not after the death- (Fannie) Esther Frances Sublette. Hence, according to the allegations petition, of the persons all the by mentioned in name purported the will of P. Solomon Sublette survived the testator. apparent It is from allegations the petition of the plaintiffs- do not claim to be the heirs of Frances Sublette, widow of alleged testator, or of (Fannie) Esther Frances daughter Sublette, of alleged Pinkney or of W. Sublette, brother of alleged testator, but that they claim solely as the heirs of Philip A. Sub- lette, deceased, who was the alleged father of the testator; and, therefore, if plaintiffs any have pecuniary direct interest in the estab- lishment of alleged will, they it is an because take in- estate or in terest property the devised under and concluding virtue in words the first paragraph sentence the second item or will, viz., my “to my plaintiffs next of kin on father’s If side.” do not an take in estate property devised under and virtue of the alleged will, if such will any be if, on other hand, established^ pers'ons one of the in mentioned name alleged took, said and became with, vested an absolute and in indefeasible said estate property devised during lifetime, his or plaintiffs her then no pecuniary probating alleged interest and establishment of the writing paper last will they of Solomon Sublette, P. do designated by not fall within parties the class the statute as entitled rejected to institute an Consequently, action to establish a will. reviewing sustaining the action trial court the demurrer to plaintiffs’ necessary petition, it becomes for us to construe the second paragraph alleged plain- the' will in order to determine whether tiffs take under the estate or interest in the devised bring par- if the will established, be so as them within class of designated by ties statute.

But issue determined in contend the sole to be alleged writing statutory or not is instant action whether argue that purported testator, they this court will of the and therefore interpret purpose will for cannot construe or Cox, in Cox v. of this court appeal. cite decisions this Plaintiffs Burris, v. 54; 110 Mo. Sinklear, Gordon 101 Mo. Owens v. support their 602; and Lilly Tobbein,

Mo. Mo. by plaintiffs are to cited above decisions contention. While the statutory and determined tried that- the sole issue effect *9 writing produced rejected will is “whether suit to establish although and it is said therein not,” or will of testator be statutory try and determine suit, cannot, in such the court that issues extraneous must leave such issues, but any or extraneous other precise yet action, different and in another determined to be discussed involved or suit not presented in instant question rulings recent clear, our under seems any decisions. It in cited v. ex rel. State Frank, v. and Reuther, Gruender in Braeuel within bring themselves must McQuillin, that supra, show petition facts which their requirement by alleging in statutory alleged of the probate” in the they interested “persons are that and may examine this court and that court will, and both the trial single determining alleged'will purpose for construe the in the interest pecuniary a direct- plaintiffs question whether the esr if will, purporting property to be devised tablished, so as to parties constitute eligible them under the statute to institute and maintain such action.

II. question The upon which the instant action turns, and upon which appeal this must be ruled and determined, is whether Esther Frances (Fannie) Sublette, daughter of the testator, under and language virtue of tile used in the will, became

vested with an and absolute indefeasible in estate fee Plaintiffs simple property. contend that the devised Esther daughter (Fannie) Sublette, testator, qualified Frances took a or property, in the which terminated defeasible fee devised at the time single death, being issue, of her and she then unmarried and without qualified property and that a or defeasible fee the devised there Pinkney Sublette, upon passed to 'W. of the shifted and the brother being death, qualified his testator, which fee terminated he absolute issue, without and ‘that the single and unmarried then in, passed to, and vested testa thereupon property fee the devised through plain whom under and side, father’s of kin next on tor’s Defendants contend that property. the devised claim title to tiffs purported testa daughter of the Sublette,' (Fannie) Frances Esther testator, absolute took an of the immediately death upon the tor, only subject property, simple devised in the fee estate indefeasible devise Sublette, and that the widow, Frances life estate of to the Sublette, The not take effect. Pinkney W. did limitation over or which the depends upon the time to question therefore of the solution Sublette) single dies Frances (i. Esther e., words, she “and Plaintiffs contend issue,” are referable. and without unmarried Esther to death of mean and refer construed must be such words issue, at and without unmarried Sublette,-'single Frances death, or, more testator’s occurring or after before time, whether the time of have reference such words particularly, words must be con that such daughter. contend Defendants single Sfiblette, Esther Frances and refer to death strued to mean occurring the death of testa before without unmarried and tor. that, death of the widow the provides at the alleged will daughter, go “my shall devised (See. 2265, R. S. statute clear,-under our (Fannie).” It is Frances the use and language purported

1919), that such inheritance, created “heirs,” words of inclusion or‘other of the word (Fannie), daughter, Esther Frances simple in fee estate words, if she succeeding “and except'as qualified' limited Pinkney brother, my issue, single unmarried and without dies *10 single and “if she dies 'Therefore, words; W.' etc. Sublette,” ’ ’ the death time of to the' issue, are referable unmarried and without daughter, tbe then the daughter, Frances, qualified took a or defeasible fee in subject the devised property, to be divested or upon, terminated and at of, the time the death of daughter, single and unmarried and without issue. On the other hand, if words, “if single she dies issue,” unmarried and without are referable either to death daughter occurring prior to the death of the testator, or to daughter death of occurring prior to the death of the life tenant, then, appearing allegations it from the of the petition herein that daughter, Esther Frances, survived both the testator and the life tenant, the contingency upon which the estate daughter was to terminate never occurred, and she became vested with an absolute and indefeasible estate simple in fee in the devised property, and the limitation Pinkney over to W. Sublette never took effect. It is well-settled law that a testator, making in his may pro will,

vide for and fix vesting the absolute of the different estates created

thereby at s'110*1times as he period sees fit within the al by law, lowed when he has done this with reasonable construing certainty, will, give his clearness courts* arise, however, expressed Cases often wherein intent. his effect to with clearness and certain express failed to reasonable a has testator will, language in the the time when-he intended ty, by used absolutely, will to such cases the created vest estate necessary recognized to call to their aid certain it courts found endeavoring at the of construction in to arrive and established rules cases, intent of It is in such wherein the true intent of the testator. expressed uncertainly language vaguely is the testator ascertaining experienced difficulty that the courts have expressed by learned text- intent. one testator’s true As referring death to the writers, “testamentary language to the com survivorship beneficiaries, named as individuals or whether presents problems of con prised class, in a of the most difficult some - Wills, struction.” Underhill on sec. [1 341.] recognized rules of estates, The law favors vested and one pos construction held to vest at.the earliest is that an estate immediately ordinarily is time, which sible moment of certain.intention a clear death, unless the testator’s 1650; Tin Cyc. will. [40 contrary is manifested recently has been Therefore, it 167 Mo. Tindall, 225.] dall made to a devise where that, by this court times number a ruled contingent beneficiary another over a limitation beneficiary with uncoupled devisee, named first upon solely *11 120 contingency,

other event or the will must be construed to refer death of the first named occurring devisee during the life- language time of the testator, clearly unless the of the will a contrary indicates v. McAllister, intention. [Northcutt 475; Huntington Mo. Real v. Megaree, Estate Co. 280 Mo. Howard v. Howard, 184 S. W. Accordingly, in the cases 993.] just cited, it surviving primary that the ruled devisee, whose death was contingency made the taking for effect the of' limitation a over, became vested with an absolute estate in the devised immediately upon the testator, death of the and that the limitation inoperative. over became-

In the ease, instant however, presented'for we have our construc- a purported tion will a contingent wherein limitation over is made only upon primary devisee, not the death of the but wherein the

contingency of primary the death coupled devisee is status; contingency, say, another that is to devise or upon or limitation is to take the death over made effect col- primary of another and devisee the existence whether, therefore question is The or status.- contingency, lateral primary (i. e., the death of the contingency double such because issue) against provided without single unmarried arid devisee, application.of will calls for casé, such instant will in the in the applied which is construction than that and different rule another primary made devisee is simply death of will to a wherein taking limitation over. a contingency effect of devise single for the subject bearing convinces of the authorities An examination rule construc- authority, the same great weight of that, us applied in either circumstance. tion is general rule “It is the Ruling Law, 259, is said":

In 28 Case it gift provision for a over with a property where devised one with- legatee issue, or without or devisee death of the in case of the without death having surviving issue, the referred to is event out testa- . intention of the during lifetime of the' testator. issue ' ” lapse. a presumed prevent to be to tor is (cid:127) this court 627, this division of Lanyon, In Mo. Dameron be devised and the testator a wherein had under construction children, equally be residuary his four named queathed estate to my “should either of among them, provision with the divided his or she shall received before he children die without issue such deceased--child shall my estate, the share or her share sisters, surviving but among brothers equally divided child children, surviving child or such him if such child shall leave four children parent’s share.” The or children shall receive its shortly but, testator, after the named survived children died four named the eldest leaving but surviving Mm, widow who claimed a widow’s share in the estate of her Judge deceased husband. delivering Valliant, opinion court, (l. of this 644) therein said c. : "The decision of this ease on interpretation turns given to be following ‘ part of residuary clause: my Should either of children die with out issue before he or she shall his or her my received share of ha.ve n estate, .the share of such deceased equally child shall be divided *12 among surviving brothers his and . sisters.’ . . Were words those designed provide against to contingency a of death the of a child oc testator, curring before, death of the the and distribution after actual of estate, they the designed only provide were against to con a n tingency of the death of child before the death 1 a of. the testator . . If . that were all there was in'the will subject on that it should he to,refer construed to the death a child the death the of before of testator, and the words‘before he or she shall have received’ should be construed to he or mean before she shall have been entitled to re n ceive, ordinary which would be in the of course administration of (Italics ours.) case, the In that however, will the was a estate.”. complicated one, and the court found in other of clauses will such the expression intention clear .of the testator that the words expressing contingency subsequent have shall reference to a time to unnecessary application to'the death of testator as make of - any rule of subordinate construction. Calhoun,

In 584, Henderson v. 183 this court was called S. W. upon will,- paragraph provided: 8 which to construe a of "After- expenses paid, my bequeath Margaret all the balance of I are estate to Calhoun, Boyd, A. Sarah Robert Calhoun and William Cal Jane A.. equally divided-among to same, houn and their heirs be and if portion without issue their of them die to revert to their brothers Margaret share A. and sisters and to and Calhoun share .alike.” Henderson) (afterwards testator, Mrs. but died survived subT having sequently she and.her husband not had issue marriage. born alive as of We "As Mrs. their therein said: result (cid:127) unele; William Calhoun (testator), Henderson alive when-her .was agree 1882,. appellant counsel for Hender died we that Mrs. by provisions.of especially

son, will, her.-uncle’s the terms by -8;.aforesaid, paragraph of the absolute owner of virtue became her from her uncle’s estate. property all which .came to [Cit whole, as a Calhoun, will of ing taken authorities.] William upon part of said testator xxpon its face an intention indicates dispose provisions of said property all the terms and his contrary, any expressed it intention to the In the absence will. that, provisions- presumed -intended that testator at paragraph. -of the will aforesaid become effective should therefore, Henderson,, upon hold that Mrs. -We death. uncle, said Calhoun, William became the absolute owner all the property she [Citing thereafter received from his estate. authori ’’

ties.] very In the Movement, recent case Owens v. Men & Millions Mo. we were called respect to construe a will which, with particular paragraphs or clauses under construction, was quite similar to the instant case. In Owens case, paragraph the seventh his will, devised and bequeathed my “all the residue and remainder of that I may seized, payment my die bequests, after the of the aforesaid May daughter, Owens, my son-in-law, Nellie and to William B. jointly, to be Owens, owned held them to have and to hold assigns eighth para In unto them their heirs and forever.” provided will, that, of his graph the testator event give, “I daughter son-in-law, and be death of both then devise queath my Oliver, formerly granddaughter, Wavelee Wavelee may I Owens, my'property all and remainder of die the residue assigns seized, hold her forever.” her, and to unto heirs my paragraph provided: In “It the tenth testator *13 my daughter granddaughter in and case said and son-in-law in such all of leaving any issue, all die without event should then my into four property, personal, said real shall be divided equal part go following,” naming parts, one shall to each of the grand corporate daughter, four son-in-law and beneficiaries. The daughter, testator, living will, named in all survived the were the brought during pendency construe will. In the of the action the Ragland construing Judge (then Commissioner), speaking will, the controversy (1. 118) : “The court, for this division of this said c. ‘ ’ given paragraphs Seventh and arises over the construction to be con particularly to the ‘Tenth’ of the with reference my ‘In language: said tingency in latter in this case described the without daughter granddaughter all and son-in-law and should die question can any issue, event,’ in etc. There no leaving then that ‘ ’ standing Nellie Seventh, alone, paragraph but that under it were simple an estate in fee May Owens and William B. Owens would take any used leaving issue,’ as in If without the lands devised. ‘die tes the paragraph, dying in means the lifetime of the ‘Tenth’ within happen, never can contingency happened, and tator, then the never leaving contrary, if ‘die without title On the and their is absolute. testator, subsequent death any to the issue’ refers to a time May give Owens Nellie paragraphs, together, then two when read Their would estate merely a defeasible fee. B. and William Owens they therefore, Whether, dying without issue. terminate their they take executory whether devise, or 'subject to an fee take the with, respect adopted depends upon construction absolutely,

123 construing words, leaving without ‘die issue.’ Decisions ‘ ’ meaning im issue, of the words dying without of like or words port, in wills, when used are cases take without number. Some view referring that when silent, the context is words to the death of the first taker connection with collateral event where apply some contingency happens after, of the before, as well as death testator. Thornton, 526; Allen, 112 228 Ill. v. U. S. Fifer v. [Britton weight great authority when supports rule, But that 507.] real primary estate devised in an intention denoting terms a with a testator, coupled devisee shall on take fee the death of the devise over case the words refer to death, a during testator, and the without issue the lifetime primary surviving absolute fee devisee the testator takes an estate simple. prevent presumed The testator is to be intention a 135 Pa. lapse. 69; King Frick, 208 v. 60, v. Ill. Eldred, [Kohtz Smith, 575; Calloway Ky. 372; v. Calloway, 366, St. Tarbell v. 171 470; Morgan Rob 108 v. Iowa, 388; Lumpkin Lumpkin, Mid. 47; Skey bins, Slingerland, 152 Ind. N. Y. Vanderzee v. V. Notes; Barnes, Eng. 28 R. C. L. 603, Rui. Cas. American 259.] policy courts just rule settled stated is accord meaning country of doubtful England, that words of both this heir; give an as as estate will be construed to favor so devisee; so that title to estate to the to vest the inheritance first abeyance.” it will not remain page 179, (1926 Ed.), Supp. to 6 section on Wills

Sehouler gen- accepted thus: “The generally rule prevailing states the bequeathed person, a or is devised where eral rule is that per- person or go to a certain other provision it should awith heirs, issue, without taker without upon'the death' of the first sons event provision, the or similar body, or without heirs If the first lifetime. during the testator’s to is death death referred interest, fee takes an indefeasible he survives taker *14 ’’ contrary intent. a by words, indicates other unless the recognized as a established foregoing well rule to be the We deem by State, as is evidenced in this rule of construction and available of decisions aforecited rule in the of such application the use and to- several earlier our have directed attention court. Plaintiffs this and adhere say announce court; which decisions of this thought- given We have construction. rule of another different inap- deem them analysis decisions, and we study to those ful instant the question under consideration plicable. precise to the being as decisions regard Furthermore, not those we do case. cited. court, of later decisions this hereinbefore conflict with the expressed in the authority, as great opinion weight judicial of this of States of other appellate courts most recent decisions of the 124

nation-, gives sanction to the aforesaid being rule as a correct, sound and' available of rule construction. Olson, 92 616; Wis. [Lovass Neubert v. Colwell, 248; Pa. St. Matter of Disney, 128; 190 N. Y. Teal v. Richardson, 119; Ind. Collins v. Collins, 703; 116 Iowa, Spira v. Frenkel, 210 Ala. v. Lisle, Ky. 520; Seewald’s Rue Estate, 281 Pa. St. 483.] III. contend, Plaintiffs however, the that aforesaid “rule does not ’’ obtain where -gift primary preceded by a estate. But life n plaintiffs are in position,herein no better because'of such con^en^on) f°r if has respectable judicial been ruled

authority that, where estate is devised to for life, one simple in fee another, with remainder the further without issue, shall die then that, if such remainderman provision ‘ ’ ‘ ’ words, die without are referable to death person, the a third the termination the antecedent life before the remainderman expressed, the words are referable to death of estate, otherwise or during occurring tenant, the lifetime life remainderman takes an absolute and surviving remainderman indefeasible immediately upon life simple estate fee tenant. (Fannie) allege petition herein in their Frances Plaintiffs -and his life tenant widow, both the testator survived Sublette just stated, of construction devise, under the rule named in the property took and indefeasible fee the devised she an absolute consequent life tenant and the immediately the death of the antecedent estate. termination Co., 202, & Trust 189 N. Y. it is 207,

In re Loan said:. Farmer’s gift over, in ease of the death without “Ordinarily, providing ap- a different intent death, unless legatee, of a the time issue occurring during lifetime of to a death pears, will be held to refer which is disposition of testator. But where by a for life preceded prior is. estate in case'of death devised over to that time of death refers general is that the rule years, then the or ’’ intervening during period of the estate. which occurs phrase 444, it is said: “The Walker, 214 Pa. Mayer v. St. In heirs,’ is the lawful testator, ‘if die without he should used he die ‘in should- case the context'of equivalent'because of words, it is a these followed estate is an absolute Where issue.’ they be understood interpretation principle settled if in the lifetime of issue death without referring to estate, the life continuance immediate; during the gift is or the continuance testator survives and if the donee it is not: and inde- absolute becomes his- interest intervening estate, ' ' ” , . .. feasible.

125 v. Guardian, Ky. In White White’s 168 752, 754, it “It is said: is in the settled rule if property this State that is' devised to one for life, with another, remainder to the remainderman die without issue, person, then dying to a third the limitation as to without is sue is restricted to of the remainderman before the termina particular tion of the estate.” thought A expressed by similar was P. J.,-speaking for SheRWOOD, Naylor Godman,

this in 109 court, 543, v. Mo. quoted when he following Wills, from Jarman on 611: although “But in the case gift generally bequest immediate it is true that a over, in the preceding legatéé, event the death of the refers to that event oc- yet'this curring’in testator, lifetime of the only construction is rei, made ex necessitate period from the absence of other to which can referred, supposed the words be as a testator is not contemplate to surviving objects thé bounty; event himself of his and, con- sequently, point where is another dying there time to which such may obviously (as bequest be referred is the case where the take is to in possession period subsequent effect at a decease), to the testator’s question extending in the words' are considered as to the event -of the legatee dying in the interval between the testator’s and the decease ” period vesting possession. respectable judicial authority

On hand, the other is there to provision' devising effect that is a in a will where there lands life, go widow for and at testator’s her her death the lands are to simple "which beneficiary, fee to a certain named is added proviso that, person -shall die event the whom is- fee devised heirs, issue, or without then the fee shall vest certain expressing contingency devisees, other named the words - occurring to death of within the lifetime reference the-devisee notwithstanding provision preceding or made for a 388; Iowa, Taylor v. Smith, antecedent v. life estate. [Tarbell Chappel, App. 651.] 41 Ind. Stephens, Ind. Duzan v. upon Many

IY. of this State cited relied of the decisions failure of question of an indefinite herein discuss the 1919) (See. S. 2268, R. applicability the effect and of the statute opinion, the afore question. In respect such our stating an available rule applicable, as is said statute not upon question we are called precise construction, to the supersede and does not case, instant rule alleged will herein. to the applicable which of construction rule appellants by relied invoked was statute aforesaid 120, supra, Movement, & Millons Mo. Men Owens case in the. sup- “In said: We therein ihápplicable.’ to us held *16 126

port of their any contention that leaving the words 'die without is sue,’ in paragraph (of ‘Tenth’ will under construction in that case), should meaning be construed as whenever it should occur, whether testator, before or appellants after death of the invoke (Sec.-2268, 1919), provides: statute R. S. which ‘Where a remainder in goods chattels, limited, lands or or shall tenements, be by deed otherwise, or to person effect the death of take on without or heirs, issue, issue, heirs of body, or without or on failure of the words ‘‘heirs” or “issue” shall be mean heirs or construed living issue at person .the death of the named as This ancestor.’. abrogating early statute was purpose for the enacted common- leaving law the words without rule'under which ‘die issue’ were [Naylor Godman, construed mean an failure of issue. v. indefinite question 109 Siler, Mo. Mo. Yocum v. The in this 160 295.] leaving any case is not words ‘die without issue’ mean whether the living ancestor, death of or an indefinite issue at the time of the they occurring during failure refer but whether to deaths subsequently. The rule of construction the lifetime of the or inapplicable. Jarman on embodied in the statute is therefore [2 ” (6 Ed.) Wills 1963.] Harvey Kentucky A similar invoked in statute of the State was. Bell, Ky. upon like 512, 520, inapplicable and was held to be ‘‘ saying simply abolishes reasoning, in that case: The statute the court by. which words were to refer rule such construed common-law only depend and makes the indefinite failure estate to of.issue, person . . .We on the at of the named. failure issue the death rights parties therefore conclude that the are not affected general provisions, either of determined these are to be ’’ governing rules the construction of wills. by plaintiffs reading V. But it and consideration is said that a manifest alleged Sublette, entirety, makes will of P. S'olomon as an daughter, Esther the intention of the testator that the the de fee in only a to take defeasible Frances, was at the time terminate was to property, which Yise<l single and unmar died that she event in the her death com lengthy nor -will neither alleged is issue. without ried and (cid:127) within a contained. is testamentary devise entire and the plicated, alleged if the course, that conceded, of may be It single sentence. testator the intention certainly evidences clearly and clearly if it fee, only defeasible to take daughter words, will that of context from certainly appears issue,” were in unmarried single dies if she “and refer, the death time of to the moment the testator tended the daughter, given then.effect must be to the true intent and mean ing of the expressed testator as in the directions of all subordinate rule's of give way. construction must 555, R. S. [Sec. 1919; Owens v. Men & Millions Movement, Mo. But we 119.] find no such clear and expression certain of testator’s intention contained in the It argued by herein. plaintiffs that, inasmuch petition alleges herein the daughter, Frances, died infancy,” “in that fact must be a cir considered as *17 (surrounding cumstance making will) the of strongly indicating the that the testator did possibility not have in daughter mind the that the might not him, words, survive and therefore testator’s use of the “and single she dies and unmarried issue,” and without shows that he placed possibility the of her death at a time when she be old would enough marry to and bear issue, which in all probability reasonable beyond would be his lifetime. “infancy,” law, The word in as used “minority; means nonage; age twenty-one years.” under of the Century and daughter, [Webster’s The testator’s Dictionaries.] may Esther Frances, nearly majority so have attained her at the time alleged may the will was that the made testator have deemed it a possibility might may that she not and him, survive have therefore words, single used the “and if and unmarried and without she die issue,” daugh provide guard against contingency to and the of the occurring during ter’s death his lifetime. plaintiffs

But argue further, quote language and the we of their giving brief: “The of the interest .to-the widow the showed possession, daughter Fannie, in estate not in the was to take effect period subsequent testator, so that the until a to the of the period but bequest Fannie, to was deferred to immediate not widow, testator; in the life estate the long of the after the death might testator, in taking lasted, the all upon the death of effect say Therefore, years we the possibilities, for after death. possession, in was deferred until the Fannie, gift in vesting of consequently period of death of estate,- and falling in of the life of the period before the death not be referable could .a Fannie testator.” of testator ex- certain intention definite, and clear find no We given alleged will to which effect must be of the in context

pressed words, determining to which the the time construing and issue,” without as used single unmarried and and if she dies “and Therefore, (Fannie), are referable. Frances Esther devise to in the intention, perforce must, we at the endeavoring to arrive testator’s in- expression of testator’s uncertainty vagueness aid established call our context in the tention mentioned. Applying of construction-hereinbefore recognized rules “if words, she alleged Will, to the those rules construction ’’ single dies unmarried only can be construed referring' either to death Esther Frances (Fannie)-occurring during testator, lifetime to death Esther Frances oc- during curring lifetime of the petition life tenant. The herein alleges (Fannie) fact be that Esther Frances survived both the and the tenant. Consequently, testator life under either rule of having, construction, Sublette Esther Frances survived both the testa- tenant, vested with an tor and the life she became absolute and in- simple in property, the devised estate fee defeasible limita- Pinkney 'inoperative "W. Sublette became tion or devise over and of no effect. do plaintiffs, that' who not claim

It follows as heirs therefore solely Sublette, but claim as the Frances who heirs of nest Phillip Sublette, the A. deceased father of kin of take alleged in the devised under the will. no or interest estate “persons interested in probate” not Hence, are entitled to parties not institute maintain will and are- purview authorizing the statute within 'the present action therefore state herein fails to facts suf- petition an action. such action, rightly and the trial court a cause of constitute sus- ficient *18 upon ground. demurrer thereto Plain- defendants’ tained refusing plead the demurrer having stand elected tiffs judgment rightly dismissing entered court further, the circuit - - plaintiff’s costs. action at -affirmed, Lindsay it .is ordered. so nisi must "judgment Ellison, 00., concur. adopted foregoing opinion.by SeddoN, C., is PER CURIAM:—The judges concur. All of the court. opinion of the Valley Mississippi al., Appellants, Marie et Yore Shaller Ruth (2d) 726. Company S. W. al. 3 et Trust One, 1928. March Division