SEPARATE CONCURRING OPINION I concur in the result herein. However, I think we should reach this result by holding that the term "before this will isexecuted" means before the will becomes effective; and not before the estate was fully administered and final distribution made.
The word "executed" is "described as a very general word of wide import and defined generally as meaning carried into effect." 33 C.J.S. 119. I think this meaning is the one that really carries out the intention of the testatrix and is the most reasonable from a construction of the whole will as well as from a consideration of the two paragraphs in which it is used.
Item 2 states that the testatrix gives to her husband one-half of her estate "according to his dower right as surviving widower under the laws of Missouri." This clearly shows that the testatrix intended for her husband to have what the law would give him and was not attempting to deprive him of any statutory rights. I do not think it is reasonable to say that she meant by this will to take anything away from him in case he died before her estate was fully administered and finally settled. On the contrary, I think this provision was in full recognition and confirmation of what the law would give him at her death; and was intended to give him the same interest, by this provision of the will becoming effective at her death, which would have vested at her death by operation of law. The testatrix undoubtedly meant to make this subject only to her debts, funeral expenses and cost of monument by her reference to Item 1.
I do not think that Item 4 requires any different construction. In fact, I think it also shows that she used the term "executed" to mean become effective or to go into effect. It gives a $550.00 note to her niece and provides that if the "note shall have been paid before this will is executed" then the executors should give her this amount in cash. Certainly it would not be contemplated that her niece, after the note had already been given to her by the will, would thereafter go through the useless act of paying it off in order to get the same [763] amount of money back later when final settlement was made. This provision indicates to me just as strongly as the provision for her husband "according to his dower right," that the testatrix meant, by the will being executed, its becoming effective as a legal transfer *Page 1119 of the property upon her death. I believe this is a more natural meaning to a layman than the meaning of complete settlement of the estate a year or two later by the executors designated in the will.
[8] This construction makes it unnecessary to reach the result that Mr. Hogg got a vested interest in one-half of the estate, at his wife's death, by holding void the provision, about his death before the will is executed, as an attempt to deprive him of his statutory rights in her estate. I do not think we should hold a provision of the will void if there is a reasonable construction upon which it can be held valid. I think there is such a reasonable construction, for the reasons above stated; and that the judgment should be affirmed for these reasons.