joined by Justice Garwood, dissenting.
I find myself unable to agree to the majority opinion in this cause and respectfully file this dissent.
I believe the rules governing the construction of the instrument involved are well settled and are as follows:
1. A will is construed to be a general, and not a contingent, will, unless the intention to the contrary clearly appears either expressly or by necessary implication from a reading of the language of the will as a whole. Ferguson v. Ferguson, 121 Texas 119, 45 S. W. 2d 1096 1.c. 1097 (2d) ; Dougherty v. Holscheider, 40 Texas Civ. App. 31, 88 S. W., 1113 1.c 1114 bot. 2nd col., (writ dism.) ; Thompson on Wills, 3rd Ed. Sec. 35 top of p. 72; 8 Ann. Cases 1151; 79 A. L. R. 1168, 1169; 57 Am. Jur. Sec. 672, p. 454; idem, Sec. 673 first sentence top p. 456; Vol. 1, Alexander Commentaries on Wills, Sec. 104, p. 121 et seq.; Vol. 1, Schouler on Wills, Executors & Administrators, 6th Ed. Sec. 408, p. 483; Page on Wills, Lifetime Ed. Sec. 96, p. 208.
2. If the event mentioned in the will merely indicates the inducement which caused the testator to make the will, and his intent to make it contingent is not apparent, the will is entitled to probate as a general will. Ferguson v. Ferguson, 121 Texas 119, 45 S. W. 2d 1096, 1.c. 1st col. 1097; Dougherty v. Holscheider, 40 Texas Civ. App. 31, 88 S. W. 1113, 1.c. 1114 last par. 2nd col. (writ dism.) ; Alexander, Vol. 1, Commentaries on Wills, Secs. 106-107; Atkinson on Wills, Sec. 150, p. 365; Page on Wills, Lifetime Ed. Vol. 1, Sec. 96, p. 209; 11 A. L. R. 846; 79 A. L. R. 1168; 57 Am. Jur. Sec. 672, last sentence 2nd par. p. 454.
3. If a will is equally capable of two constructions, one of which will uphold it and the other will destroy it, the former *430construction should be given by the courts so as to uphold the will. Neely v. Brogdon (Com. App.) 239 S. W. 192, 1.c. bottom 2nd col. 193; Powers et al v. 1st Nat’l Bank, (T. C. A.) 137 S. W. 2d 839, affirmed 138 Texas 604, 161 S. W. 2d 273, top of 1st col. p. 842, and authorities there cited; 35 Mich. Law Rev. p. 1060.
4. If the will is open to two constructions, that interpretation will be given it which will prevent intestacy. Ferguson v. Ferguson, 121 Texas 119, 45 S. W. 2d 1096, 1.c. 1st col. 1097; 44 Texas Jur. Sec. 148, p. 707.
5. The fact that testator left a will implies that he did not intend to die intestate. Ferguson v. Ferguson, 121 Texas 119, 45 S. W. 2d 1096, 1.c. 1097, 1st col. and authorities therein cited.
I further believe that in construing this instrument we must look to said instrument alone, and that its plain meaning cannot be changed by reading into the same language which was not employed by W. W. Bagnall at the time he wrote same. A careful reading of the language contained in the wills involved in the Texas cases cited by the majority opinion to sustain their holding will show that the condition was plainly and clearly expressed on the face of such will. Not so in the instant case.
The very first expression used by W. W. Bagnall shows his intention to make a will, viz.: “Remember me W. W. Bagnall by this.” What could more plainly show that W. W. Bagnall was making his will? It is as plain as if he had said, “This is the last will and testament of W. W. Bagnall.” I think the law is well settled that unless the will itself shows on its face that its effect as a will depends upon the happening of a specified condition or contingency it is a general will.
“Whether or not a will is to be regarded as contingent depends upon the intention of the testator. Courts will not regard a will as conditional or contingent unless the intention of the testator to make it so clearly appears, either expressly or by necessary implication from the language of the will as a whole. The court should not read into a will a condition of its operative effect which, upon a reasonable intrepretation of the language of the will, is not to be found therein. To hold a will contingent or conditional, it must reasonably appear that the testator intended the will not to take effect unless a stated condition was fulfilled. The general rule of construction that favors *431an interpretation which will prevent intestacy operates to require that a will be construed to be unconditional in case of doubt on that score.
“A will is not made conditional by statements therein which have no reasonable or logical relation to the testator’s property or to the objects of his bounty. A statement in the will of circumstances which merely indicate the necessity of a will does not render the will contingent or conditional. A will is not conditional if the contingency expressed in the instrument is referred to merely as the occasion or inducement for making the will. If the language used in a will can by any reasonable interpretation be construed to mean that the testator referred to a possible danger or threatened calamity only as a reason for making his will at that time, the courts incline toward holding that the will is not contingent upon the occurrence of such danger or calamity.”
I think the following quotation from Ferguson v. Ferguson, 121 Texas 119, 124, 45 S. W. 2d 1096, 1098, 79 A. L. R. 1163, applicable to our instrument:
“If we construe the first clause in her will, T am going on a journey and I may never come back alive so I make this will,’ to relate merely to the inducement or occasion for making a will, then we have a will which declares in effect: T am making this my Will because I am going on a journey from which I may not return; but at some later date I expect to make certain changes in this Will.’ This would be a general will, and she would not die intestate upon her return, even if she failed to make the ‘changes’ she may have had in mind.
“An examination of the will indicates that her main desire was to dispose of her property herself and not to die intestate. The fact that she referred to the journey indicates that she was thinking of the necessity for a will if she did not desire to die intestate. Her will indicates that she had fixed notions as to who was to receive her property, and in one paragraph she exhibits a fixed intention that her two brothers, Alvah and James, shall have but the nominal sum of $100 each.”
Also the following quotation from the Ferguson case:
“The current of modern authority, however, seems to be that, if the happening of the event is merely referred to as giving the reason or inducement for the making of the will, it be held unconditional; but, if it appears that the testator intended to dispose of his property in case of the happening of *432the named event, then it will be held to be conditional. The rule is stated in the case of French v. French, 14 W. Va. 458, 459: Tt seems that it is now an established principle that, while a person may make a conditional will, his intention to do so must appear clearly. The question is whether the contingency is referred to as the reason or occasion for making the disposition, or as the conditions upon which the disposition is to become operative.’
“In most of the cases holding wills dependent on the happening of the condition named, the words ‘if I never get back,’ referring to a certain journey, or ‘should anything happen to me,’ referring to a particular time or event, were used.” (Italics mine.)
This instrument made by W. W. Bagnall nowhere refers to a certain journey, or to a particular time or event.
W. W. Bagnall says, “all my belongings and estate goes to James B. Bagnall Brother of mine.” There is no uncertainty as to the amount of his estate disposed of nor to whom it is to go. Such disposition is clear, unambiguous and unequivocal. A reading of the record shows such disposition to James B. Bagnall was not unreasonable nor unnatural. W. W. Bagnall was more closely associated with James B. Bagnall than any other of his brothers or sisters or his mother.
There are not many cases in Texas in which this exact question has arisen, but in the other states of the United States we find a number of cases set out in the annotations to 8 Ann. Cases 1150, 11 A. L. R. 846, and 79 A. L. R. 1168. A study of these annotations and the cases cited therein, together with the excellent article in 35 Mich. Law Rev. 1049 (May 1937 issue) shows that the early cases decided in favor of holding a questionable document to be a conditional will. However, there has been a consistent and growing trend of modern decisions to hold a will conditional only when the will so provides in express language and there is no other alternative left for the courts.
We realize that W. W. Bagnall could not make this instrument, his general and unconditional will by what he did or said after the making thereof. However, such words, action and conduct of W. W. Bagnall can be used to show his intent at the time of the making of the instrument. There are many statements in the record showing W. W. Bagnall concluded that he *433had made a will disposing of his estate. He knew where the will was kept and had opportunity to destroy it.
There being nothing on the face of the instrument to show it was made by W. W. Bagnall, at the time he did make it, to be effective only upon the happening of a particular event; but the language showing only his purported trip could be no more than the occasion or inducemnt for making the will, I think under the well-recognized and established rule of construction we must hold this instrument to be the general and unconditional will of W. W. Bagnall disposing of his estate. Therefore I think it should have been admitted to probate, and that the judgment of the Court of Civil Appeals should be affirmed.
Opinion delivered October 26, 1949.