I dissent from the order denying a rehearing.
To my mind it is correctly stated in the petition for rehearing that the theory of the department opinion apparently is that words which may properly be held sufficient to show a primary or direct devise of property, will necessarily be sufficient to qualify or cut down an absolute estate in the same property given in unequivocal language by a preceding provision of the will. Such a theory, I think, finds no support in the authorities. The question is, not whether such words as are used in the second paragraph of the will here involved would be taken as a positive disposition by the testatrix of the property referred to, if they were the only words in the will relative to such property, but whether, considered in connection with the words of the firstparagraph referring to the same property and clearly and distinctly devising an absolute estate therein, they show an intent on the part of the testatrix to limit the effect of the disposition made by such paragraph. In the determination of this question, section 1322 of the Civil Code is applicable. I am of the opinion that the judge of the lower court was correct in his conclusion that the words used in the second paragraph with relation to this property are "not equally clear and distinct" as those used in the first paragraph, that, considered in connection with the first paragraph, they fail to show any intention on the part of the testatrix that her daughter should take less than an absolute estate, and that they should be considered as nothing more than the expression of a wish or desire on the part of the testatrix, addressed to her daughter. *Page 170