Michael Fitzpatrick died testate October 28, 1918, leaving his wife, Emma J. Fitzpatrick, surviving him. Emma J. Fitzpatrick married A. J. Mosely, the appellee, in April, 1920. The will of Michael Fitzpatrick was probated in Duval County March 19, 1923. A. J. Mosely brought this suit in February, 1927, for an interpretation of the last will and testament of Michael *Page 269 Fitzpatrick and for a declaration of the intention of the testator as expressed therein.
That part of the will of Michael Fitzpatrick material a disposition of the questions raised here is as follows:
"Second: I do hereby nominate, make, constitute and appoint my dearly beloved wife, Emma J. Fitzpatrick, now residing with me in Jacksonville, Duval County, Florida, should she survive me, to be executrix of this my last will and testament, and I do hereby authorize and empower her to manage, control, mortgage, sell and convey in fee simple, all of my estate as and when she may consider for the best interest of herself and of my said estate.
"Third: It is my will that my wife, Emma J. Fitzpatrick, shall have and receive in fee simple, all of my property, real, personal and mixed, of which I shall die seized and possessed, or to which I may be entitled at the time of my death.
"Fourth: It is my will, that if my said wife, Emma J. Fitzpatrick, should own, possess or be entitled to any of my said property at the time of her death, that upon her said death, my sister, Bridget Malone, now residing at 45 Spring Street, Red Bank, New Jersey, shall have and receive in fee simple, one-half of my said property, owned by my said wife, at the time of her death, and that my said wife's half-sisters, Georgia Ann Roberts, now residing at 904 Lackawanna Avenue, Jacksonville, Duval County, Florida, and Angeline Williamson, now residing at Pellum, Duval County, Florida, shall each have and receive in fee simple, one-fourth of my said property owned by my said wife at the time of her death.
"Fifth: It is my will that if my said wife, Emma J. Fitzpatrick, should survive my said sister, Bridget *Page 270 Malone, and her said half sisters, Georgia Ann Roberts and Angeline Williamson, that the heirs-at-law of my said sister, Bridget Malone, shall have and receive one-half of my said property, and that the heirs-at-law of my said wife's half sisters, Georgia Ann Roberts and Angeline Williamson, shall respectively have and receive one-fourth of my said property, which my said wife, Emma J. Fitzpatrick, shall own, possess, or be entitled to, at the time of her death."
Complainant below, appellee here, contends that by the terms of paragraph three of the will as above quoted, Michael Fitzpatrick gave to his wife, Emma J. Fitzpatrick, in fee simple all his property, real, personal, and mixed, and that the devisee over in paragraphs four and five is void and ineffectual. Appellants contend on the other hand that paragraph three of the will is limited by paragraphs four and five and that by virtue of such limitation Emma J. Fitzpatrick took only a life estate under the said will. This appeal is from a final decree approving the contention of the complainant.
A bill for the express purpose of construing a will may not lie in equity. Pomeroy's Eq. Juris. (4th Ed.), Sections 351 and 1426, but we think this suit may be maintained under the law authorizing declaratory decrees in this State (Chapter 7857, Acts of 1919, Sections 4953 and 4954, Comp. Gen. Laws of 1927), Sheldon v. Powell, decided by this Court April 8, 1930, 128 So. R. 258; Washington-Detroit Theater Company v. Moore, 229 N.W. R. 618.
The canons of testamentary construction are few and unambiguous, the cardinal one being, that in the interpretation of a will the intention of the testator must be given effect, provided it be not inconsistent with the rules of law. The intent of the testator should be determined by a consideration of the whole instrument. If there are expressions *Page 271 in the will difficult to reconcile, the posture of the testator, the ties that bind him to the legatee, the motives that prompted him to make the will he did make and the influences that wrought on him may be considered in arriving at the purpose of the testator.
We find no difficulty in giving effect to the intent of the testator in the instant case. The terms of the will are clear and its provisions readily reconciled. It cannot be questioned that paragraphs two and three, if construed alone, vest in the wife, Emma J. Fitzpatrick, in fee simple with power to vonvey, the entire estate of Michael Fitzpatrick, but we do not think paragraphs two and three can be construed because in the same breath the testator in paragraph four limits or cuts down the fee simple estate, in that he provides that should Emma J. Fitzpatrick own or possess any of his property at her death the said property should vest in fee simple as follows: one-half to his sister, Bridget Malone, and one-half to be divided equally between the two half sisters of his wife, Georgia Ann Roberts and Angeline Williamson. These words create a remainder over in the estate and devise it to the sister of the testator and the two half sisters of his wife in terms so clear that there can be no mistake of their import. Appellee contends that paragraph three should be given effect and paragraph four disregarded, but both paragraphs are equally the words of the testator and this Court can no more disregard one than it can the other when both are clear and their purpose certain.
The situation of both the testator and the beneficiaries supports this interpretation. The first concern of the testator was his wife, for whose comfort he made ample provision for her life. There were no children and the only blood relation he had in this country was his sister, Bridget Malone, for whom he had great affection and to *Page 272 whom he devised one-half of whatever remainder there might be at the death of his wife, the other half he gave to the half sisters of his wife, Georgia Ann Roberts and Angeline Williamson. Paragraph five of the will embraced a further disposition of the remainder in the event of the contingency therein defined, but that contingency did not arise so paragraph five becomes mere surplusage.
Of all experiences that some to one in life the incident of making his will is the time when he most likely strips himself of any sham or deceit or pretense he may have concealed and speaks what he actually feels in his breast. The thought of death, the fact of God and eternity and justice and the ties of blood and affection impel him to do this. Under such circumstances we can conceive of no impulse that would actuate the testator to make a will to provide for the future husband of his wife in preference to his sister and the half sisters of his wife as is attempted to be shown in this case. Under the circumstances the will brought in question was a perfectly natural disposition and we think may be given effect in full.
But appellee contends that since paragraph three of the will vests an absolute interest in fee in the devisee the remainder over paragraph four and five is void for repugnancy. This contention seems to be supported by the English rule. Gulliver v. Vaux, 8 D. M. and G. 167; Shaw v. Ford, 7 Ch. Div. 669. It is also the rule in some of our states. Lucky v. McCray et al.,125 Ia. 691, 101 N.W. R. 516; Law v. Douglass, 107 Ia. 607, 78 N.W. R. 212; Jackson v. Littell, 213 Mo. 589, 127 Am. St. R. 620.
We think the better rule to be that the devisee of an estate in fee simple may be limited by a subsequent valid provision that the estate shall go over to others upon the happening of a named contingency or that it may be restricted by subsequent provisions in the will so that in *Page 273 effect it becomes an estate for life as to the remainder. Smith vs. Ball, 31 U.S. 68, 8 Law Ed. 322; Williams v. Elliott,246 Ill. 548, 92 N.E. R. 960, 138 A. S. R. 254; Mansfield v. Shelton, 67 Conn. 390, 35 Atl. R. 271, 52 A. S. R. 285; Allen v. Craft, 109 Ind. 476, 9 N.E. R. 919; Lumpkin v. Lumpkin,108 Md. 470, 70 Atl. R. 238, 25 L.R.A. (N.S.) 1063; Mee v. Gordon, 187 N.Y. 400, 80 N.E. R. 353, 28 R. C. L. 241. We think this case might well be disposed of on authority of Smith v. Ball, supra.
We do not discuss the effect of a life estate with power of disposition. Suffice it to say that the decided weight of authority is to the effect that where an estate for life with remainder over, is given, with power of disposition in fee of the remainder annexed, the limitation for the life of the first taker will control, and the life estate will not be enlarged to a fee, notwithstanding the power of the life tenant in good faith to dispose of the fee and pass his title thereto. Note to National Surety Company v. Jarrett, 36 A. L. R. 1180 (95 W. Va. 420, 121 So. E. R. 291). See also note to Trustees et al. v. Mizel, 2 A. L. R. 1243, and 27 A. L. R. 1381.
In this case the estate given by the testator to his wife, Emma J. Fitzpatrick, with power of disposition in fee was limited by subsequent valid provisions in the will so that the remainder over descends to his sister, Bridget Malone, and the two half sisters of his wife, Georgia Ann Roberts and Angeline Williamson, under paragraph four of the will.
For the reasons announced in this opinion, the decree of the chancellor below must be and is hereby reversed.
Reversed.
WHITFIELD, STRUM, BROWN AND BUFORD, J. J., concur.
*Page 274ELLIS, J., dissents.