(dissenting)—It is said in the majority opinion that, standing alone and applying thereto the rules of construction theretofore noticed, the language of the will does not express an intention on the part of Dr. Miller to dispose of his wife’s community interest; or, if so, it is not expressed with such clearness as the law requires in order to put her to an election. It seems to me that the intent is sufficiently expressed. It is true, as asserted, that the husband cannot, as against the will of his spouse, devise more than his half, but he may so draw his will as to compel an election. There are many things about this will that make his intent sufficiently clear and certain to satisfy the tests of the law. He assumed and undertook to provide that the whole property should be kept intact during the widowhood *473or pending the death of his wife. It is evident from the whole instrument that he intended that the whole property should eventually go to his children, and that, in lieu of her present interest in one-half of the property, his wife would take the income of the whole. When a testator gives property to one whom he would not be bound to recognize as a beneficiary, and the bequest depends upon a beneficial condition, an election must necessarily follow. Mrs. Miller was entitled to her half of the community property; or in lieu thereof, she might take the income of the whole. The effect of the majority holding is that she is entitled to her own and the whole income pending the determination of this litigation. The will states that the property is given in trust to the executors. The trust would be wholly ineffectual unless Mrs. Miller permitted her undivided share to rest in the trust and contented herself with the income of the whole property. While the case of Prince v. Prince, 64 Wash. 552, 117 Pac. 255, was based upon the principle of law governing mutual wills, yet is seems to me that the same principle would govern here, inasmuch as Mrs. Miller accepted the terms of the will and acted upon it for a sufficient time to bind her to an election.
Por these reasons, I dissent from the majority opinion.