Looking to the four corners of testator's will for his intent as the law of that instrument, it is noted that he therein divided all of his property into two general classes — that given or devised "in absolute right," and that given or devised upon "conditions and limitations." His general and primary interest or plan, exhibited by the will, was to keep certain of his property, if possible, in his immediate family, and, failing of issue as indicated, in his brothers and sisters, or their descendants. To that end he (1) devised and bequeathed all of his properties to the several declared objects of his bounty, to the extent, and upon the respective terms and conditions, of title or interest, specifically indicated as to each; (2) declared in unmistakable terms that the several properties bequeathed or devised to Tempe (other than the life insurance policy of $2,500), in default of issue of her body, were given to testator's "brothers and sisters, or their descendants. * * *"
It is not necessary to construe every provision of this will, yet it is required that we look to the several provisions thereof to ascertain the quantum of estate or interest devised and bequeathed to Tempe, a portion of which property is the subject of this suit. Having in mind the subsequent devises and bequests made on conditions or subject to limitations, the testator declared that the gift to his nephews (Jacob K. Swoope and Jacob Swoope Moore) of the proceeds of the policy in the Knickerbocker Life Insurance Company was to "them in absolute right," and that the life insurance policy in the Mound City Insurance Company was given to his daughter Tempe in "absolute right." Having made provision for his wife (Elizabeth T.), by giving or devising to her "one-third of all the balance of" testator's property "for the term of her natural life," he provided that upon her death that property was "given and devised" to the daughter (Tempe) "upon the same limitations" as had been imposed by the testator upon the bequest and devise to that daughter of the remaining two-thirds of "all the balance of" testator's property.
The whole will discloses that it was testator's expressed purpose to dispose of all his properties and to foreclose any event of intestacy. The provisions made for Tempe, of properties other than the insurance policy. included "all the balance" of testator's property upon the "conditions and limitations, viz.: that should said Tempe die without issue of her body, the said property" was "given to" testator's brothers and sisters, or their descendants, etc. If it was not theintention of testator to subject this property to the condition or limitation of Tempe's death without issue though she survived testator, why was testator particular to distinguish between properties given Swoope, Moore, and Tempe in "absolute right," and that given Tempe upon the conditions and limitations stated? If testator had in mind the date of his own death as being the time when the limitation of Tempe's death without issue of her body, as affecting the gift or devise, should cease to exist, why did he, in subsequent provisions of the same paragraph, give and devise to that daughter the portion of his property theretofore devised to his wife for life "upon the same limitations" — meaning of necessity the conditions and limitations theretofore imposed upon the balance of the properties devised and bequeathed to Tempe? That is to say, if the conditions and limitations imposed upon such gifts to Tempe were intended only to extend to and be determined at and by the death of testator, why his use of the words "upon the same limitations" in the gift and devise to Tempe of that portion of the balance of all of testator's properties given to his wife for life, since the wife could not take under the will until after testator's death?
Thus does testator interpret, as the law *Page 679 of the instrument, the limitations imposed upon the whole gift and devise to the daughter, that the limitations on the one-third of "all the balance" of his property given Tempe after the death of the mother, and the limitations on the two-thirds of said balance of property given Tempe after the death of testator, were the same. There is no irreconcilable conflict in the will; but, if such there had been, the last declaration in the will of the testator, when clearly stated, must control. Ralls v. Johnson, 200 Ala. 178, 180, 79 So. 926. A consideration of the whole instrument convinces us that an estate in Tempe to all the balance of testator's properties freed of condition after testator's death was not intended to be created (Code, § 3396), and that the provisions of this will did not fall within the class of doubtful cases where, under the law, the interest or estate therein given or devised will be construed as vested rather than contingent, or not subject to condition. Campbell, Guard., v. Weakley, Adm'r, 121 Ala. 64,25 So. 694; Montgomery v. Wilson, 189 Ala. 209, 66 So. 503; Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651.
If further analysis be necessary, reading the will as a whole, it must be noted that the provision for Tempe, as to the one-third of all of the balance of testator's property given his wife for the term of her natural life, was "upon the same limitations" applying to Tempe's interest or title in the two-thirds of all the balance of testator's property not subject to the life estate. The testator so states in his will. As to the former, the limitation of necessity was to take effect or terminate after testator's death; the limitation on the latter two-thirds of all the balance of testator's property was the same; no distinction of the two classes of properties given his daughter being made by testator, should she die without issue of her body before or after testator's death. As affecting the ultimate provisions the testator made for his brothers and sisters or their descendants, consistent with the primary purpose of his will, it could not be said that he intended Tempe to take one-third of all the balance of his property upon different conditions and limitations than when taking the two-thirds of all the balance of his property that was not charged with a life estate for the wife. That it would be an unnatural distribution of the remainder in his properties to his brothers and sisters "or their descendants," and that he did not so intend or make it is shown by his particularity to declare in his will as to them:
"* * * The descendants of each brother or sister to take that share which the brother or sister would have taken, had he or she been living."
The decision of the majority is to declare that testator intended to divide that property or balance of his estate into two classes, dependent, not upon the course of nature, Tempe'sdeath without issue of her body, but upon the course of nature that she die without issue before testator's death. It was her death with or without issue of her body that concerned testator and that he made the condition to defeat, determine, or vest the contingent estate or interest created by testator for his daughter and the heirs of her body, or for and in his brothers and sisters or their descendants, and not the date of her death, whether before or after the demise of testator. This construction of Mr. Swoope's will is in adherence to and is a just application of the principles of statutory construction, under the statute and the decisions of this court, applied in many cases. Fowlkes v. Clay, supra; Smith v. Smith, 157 Ala. 79,47 So. 220, 25 L.R.A. (N.S.) 1045.
The circuit court announced the right conclusion by the decree rendered, denying that Mrs. Darrow, surviving her father, took said lot in fee simple, and in adjudging that it was the intention of her father to give her the lots "conditioned upon her bearing a child or children, and that, she not having borne a child or children, and will not, in the course of nature, bear one, she has only a life estate in said lots, with remainder in the brothers and sisters of the said Jacob K. Swoope, deceased, or their descendants."
SAYRE and GARDNER, JJ., concur in the foregoing dissenting opinion.