As appears from the original opinion, ante, only the therein italicized expressions of the will of Mr. Swoope were undertaken to be construed; the court below having referred the title to the two lots in question to that feature of the will, saying that the issue between the parties was to be resolved upon a construction of that part of the will, quoting it only. This court has not, hence, expressed its judgment as to the application or effect of the rule of construction stated in the original opinion, ante, upon these words in the will:
"I give to my wife, Elizabeth T. Swoope, one-third of all of the balance of my property, real and personal, wherever situated, for the term of her natural life. * * * Upon the death of my wife, I give and devise to my daughter Tempe the portion of property herein given and devised to my wife for the natural life of my wife, and upon the same limitations."
It is to be observed that this feature of the will gave to the testator's widow a life estate in "one-third of all of the balance of my [his] property," with remainder to Tempe Swoope (appellant) "upon the same limitations" therein above stated, viz.: "That should the said Tempe die without issue," etc. In recognition of the effect of the introduction of a previous life estate to define the period of division, it was said in Burleson v. Mays, 189 Ala. 107, 119, 66 So. 36, 40, through approving quotation:
"If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole; but, if a previous life estate be given, then the period of division is the death of the life tenant and survivors at such death take the whole."
In the feature of the will under construction (italicized in the original opinion, ante), there is no provision for an intervening life estate, as is the condition in the feature of the will providing a life estate only for Mrs. Swoope in one-third of the testator's real and personal property; the expression "upon the same limitations" being there necessarily refarable to the remainder consequent upon the stated life estate in the wife of the testator, and hence, according to the discriminating authority of Burleson v. Mays, supra, the rule of Smith v. Smith (cited in the original opinion, ante) is not applicable to the status made by the provisions of this testator's will creating a life estate in Mrs. Swoope and a remainder in Tempe Swoope (Darrow), "upon the same limitations."
Taking due account of the doctrine of Burleson *Page 678 v. Mays, it is evident that the phrase "upon the same limitations," as latterly employed in the instrument, contributes nothing toward the conclusion, urged for appellee, that the existence or presence of the "conditions and limitations," upon which the bequest and devise to Tempe Swoope (Darrow) was made in the feature of the will under construction (italicized in the original opinion) should be determined upon the death of Tempe Swoope or at any time after the death of the testator.
It is insisted for appellee, in support of the application for rehearing, that the provisions bequeathing to Tempe Swoope and others the proceeds of life insurance in "absolute right" is, when contrasted with the limitary particular feature of the clause under construction, forceful to show an intent on the part of the testator to project the period for the ascertainment of the existence vel non of the limitation to a point of time after the death of the testator, thereby excluding this clause of the will from the effect of the rule declared in Smith v. Smith, supra. The phrase "absolute right," as therein employed, was only designed by the testator to discriminate between the subject of the absolute bequest of the insurance proceeds and the latterly made bequest and devise, in the clause under construction, to Tempe Swoope (Darrow) upon the limitation defined, viz. death without issue of her body. The words "absolute right" serve their full import when so interpreted. Those words do not appear to intend an effect to invest the stated limitation's ascertainment to a point of timeafter testator's death.
The application for rehearing is denied.
ANDERSON, C. J., and SOMERVILLE and MILLER, JJ., concur.