It is but a matter of common sense that if Septimus Decimus Rice entertained the belief that by the first clause of the will of Mattie B. Rice, to wit: "First, I give my husband, Septimus Decimus Rice, my storehouse on Court Street, or any other property that I may own at the time of my death, with all money I may have," he acquired the title in fee to the storehouse property, and acted on this belief, intending to pass such title to his son, Pryor O. Rice, by his will made in 1912, in disposition of his own property, and not in the exercise of the power of appointment conferred by the will of Mattie B. Rice, then he failed to exercise such power, and the property passed and vested in the nieces of Mattie B. Rice, named in her will.
Viewing his conduct and dealings with the property, as shown by the evidence, the conclusion is inescapable that such was the belief and purpose of said Septimus Decimus Rice, and that in making his will he was not attempting or intending to exercise the power of appointment.
The decree of the circuit court is in accord with this view.
ANDERSON, C. J., and THOMAS, BOULDIN, and FOSTER, JJ., concur. *Page 323