(dissenting).
I am not in accord with the opinion of the majority in reversing and, in effect, rendering this cause in favor of appellee. The will of Henry D. Lindsley, viewed from its four corners and giving effect to its terms as expressive of the testator’s intention, undoubtedly requires his widow, Marguerite B. Lindsley, to elect whether she will accept under the will, or denounce the will and take a homestead interest in 200 acres of land, including the residence and exempt personal property. I am not averse to the law pronounced in the original opinion of Justice LOONEY, nor, in the main (where applicable here), the concurring opinion of Justice DODD. The law on wills and elections between vested rights is well understood and, manifestly, adjudicated cases furnish little or no criterion as canons for construction of other wills couched in different phraseology.
Plaintiff’s petition affirmatively alleges that all the land and personal property devised by the will of Henry D. Lindsley was the separate property of the deceased, and clearly evinces her intention to take under the will all the devises and bequests vested in her by its terms, and to have set aside to her for life, a 200-acre homestead exemption and exempt personal property vested in her only after the death of her husband.
The will and codicil are set out in the petition. The trial court, in sustaining the demurrers, held in effect that appellant, by her pleadings and under the terms of the will, is put to an election, either to take under the provisions of the will, or to renounce the will and take the homestead and exempt personal property rights allowed her by law; that she cannot take both. This is the dominant question presented on this appeal.
The material parts of the will read as follows:
4. “I give, devise and bequeath in trust to Porter Lindsley of Dallas, Texas, as Trustee, and his successor trustee or trus*425tees, all my estate, real, personal and mixed, for the following uses and purposes:
“1. To my wife, Marguerite Lindsley, I give, devise, bequeath and instruct my Trustee to give her a deed in fee simple title, the residence in which she now lives on Northaven Road, together with all contents therein, except my library as hereinafter provided, and including the lot, about 200 x 200 feet, on which this residence and garage are now situated. And, to her my wife, Marguerite Lindsley, I leave in addition the following:
“(A) Fifty (SO) books out of my library to be selected by her.
“(B) That part of the livestock now on my Northaven Farms or which may .be on same at the time of my decease and described generally as follows: All chickens, turkeys, ducks, guineas, etc., all milk cows.
“(C) Ten (10) acres of land out of Northaven Farms in addition to the land on which my residence is now situated. This ten (10) acres to be selected by my wife, Marguerite Lindsley, but to be approved by Porter Lindsley.
“(D) Five Thousand ($5,000.00) Dollars in cash.
“(E) In addition to the $5,000.00 provided to be paid to my wife, Marguerite Lindsley, in cash, I leave her out of my general estate the sum of Twenty Thousand ($20,000.00) Dollars, to be paid to her at my Trustee’s discretion and as my estate will permit.
“2. I direct that my Trustee shall pay to my daughter, Cadis Lindsley Vars, wife of Addison Vars, of Buffalo, New York, the sum of Twenty Five-Hundred ($2,500.00) Dollars in cash.
“3. I have provided for my son, Henry D. Lindsley, Jr., the sum of Twenty Five Hundred ($2,500.00) Dollars, he being the beneficiary in a life insurance policy issued by the Praetorians of Dallas, Texas, in the sum of Twenty Five Hundred ($2,500.00) Dollars, and I direct my Trustee to deliver to him said policy of insurance, which shall constitute his interest in my estate.
“4. To Porter Lindsley I will and bequeath in fee simple that fifty (50) acres of land out of my Northaven Farms lying in a parallelogram bounded on the East side by Inwood Road, on the South side by North-aven Road, and on the West side by Welch Road, provided that he, Porter Lindsley, desires to build his permanent home on said land. In the event he does not so desire, then this fifty (50) acres will go to my residuary legatee and Porter Lindsley will receive out of my general estate instead of said fifty (50) acres, the sum of Ten Thousand ($10,000.00) Dollars.
“When Porter Lindsley may have built a residence on said Fifty (50) acres and occupies it as a home, then all question as to permanency of title in him shall have ceased and the fifty (50) acres shall thereafter be his without any strings of any kind on it, to do with entirely as he pleases.
“5. To Charles McKamy of Carrollton, Texas, I will and bequeath ten (10) acres of land out of Northaven Farms to be selected by him, but approved by Porter Lindsley, on Northaven Road between Preston Road and Inwood Road, provided he, the said Charles McKamy desires to use said ten (10) acres for his permanent home. In the event he does not so use same, then this ten (10) acres shall revert to my residuary legatee. But Charles McKamy can commence improving this ten (10) acres for his home at any time he pleases within five (5) years from my decease.
“6. I direct that my Trustee shall pay to Miss Ella V. Freeman of Dallas, Texas, long my valued and efficient secretáry the sum of One Thousand ($1,000.00) Dollars in cash.
“7. I direct that my Trustee shall pay to. the Salvation Army the sum of Five Thousand ($5,000.00) Dollars, to be used as it may desire in connection with its work in Dallas County, Texas. This bequest shall be paid out of the general proceeds of my estate.
“8. I direct that my Trustee shall pay to the Scottish Rite Crippled Children’s Hospital of Dallas, Texas, the sum of Ten Thousand ($10,000.00) Dollars, to be paid out of my general estate.
“9. I direct that my Trustee shall pay to Elmer Scott, Trustee, the sum of Five Thousand ($5,000.00) Dollars to be used at his discretion for the Civic Federation of Dallas and in the event Elmer SccUt does not desire to so use this sum, it shall revert to my general estate.
“10. I direct that my Trustee shall pay to the Endowment Fund of the American Legion, the National Organization, the sum of One Thousand ($1,000.00), to be paid out of my general estate.
“11. The balance of my books, after the fifty (50) are taken by my wife, as provided in Paragraph 5, Section 4, I desire to go *426to some public or semi-public institution, as shall be selected by Porter Lindsley, my Executor and Trustee.
“12. In the event my Trustee shall determine that my library shall go to the Carrollton and Farmers Branch Community, then I direct that there be paid One Thousand ($1,000.00) Dollars out of my general estate to Charles McKamy and Tom Field, Trustees, to be used as they may deem proper in connection with the most beneficial use of this library.
“13. The balance of my estate I will and bequeath to Southern Methodist University of Dallas, Texas.
“And I direct that there be a Committee consisting of Bishop Charles C. Selecman, Frank McNeny and Marvin Cullum, which Committee shall determine how this bequest may be of greatest value to Southern Methodist University
“That is, whether it go to the general endowment fund of the University, or to a special endowment fund of the University, or for the erection of one or more buildings for the University, or whether it go in whole or part for scholarships to the University.
“It is my desire, but this Committee is not bound by this desire, that at least four (4) scholarships — (2) for boys and two (2) for girls' — be provided in my name at said University in perpetuity.”
S. “If necessary to carry out any of the bequests or provisions of this will, my Trustee herein named is empowered and directed to sell all my property, real, personal and mixed, and convert my entire estate into cash, as soon as, in his judgment, such sales can be effected without loss or sacrifice, and my said Trustee is expressly authorized and empowered to sell my Northaven Farms where I now live in its entirety or in tracts and parcels from time to time, as in his judgment he shall see fit, for the purpose of realizing the greatest sum therefrom; and he is further expressly authorized and empowered to operate, rent or lease said farm, or any unsold part thereof, until such time or times as my said Trustee shall in his judgment finally dispose of all said lands, or deliver them to my residuary legatee. Such sale or sales of my said estate shall be made upon such terms and conditions, including sales for cash or credit or both, as my Trustee shall in his judgment see fit.
“The original Trustee and each successor Trustee, while acting as such under this Will, shall have power to collect, receipt for, invest, re-invest, loan convert and reconvert, sell, mortgage, improve, lease and control all and every part of the trust estate. He shall have power to execute and deliver all deeds, conveyances, transfers, licenses, assignments, leases, contracts or written instruments of any and every kind. He shall pay to himself all reasonable expenses of the trust estate and his own lawful expenses as Trustee, and his own lawful and reasonable compensation for his services as Trustee. No person having business with the Trustee shall be required to look to the application of any money, property or other things of value. In the exercise of the powers given or in the discharge of any duty concerning the trust estate, my Trustee is given full discretion and shall not be held responsible for any action taken, unless it is shown that he has acted in negligence or in bad faith.”
An analysis of the will of Henry D. Lindsley shows that he intended to dispose of his entire property. True, he could not dispose of his wife’s rights, present or future, in the property, but he could, by will, put her to an election to accept thereunder or renounce it. The language employed by the deceased must be given the meaning intended by him, judged in the light of attending circumstances. Of course, he made the will in his lifetime; he owned the property in its entirety; it was his property. The wife, at the time he made the will, had only a defeasible interest or right in the property; thus, such terms as “my property,” “all my estate,” “my library,” “my Northaven Farms,” “my residence,” can have no meaning other than that he was dealing with the whole of the property. It is true, a right conferred by law upon a surviving spouse, in property of the decedent, may not be abridged by the will of the latter; yet, if the property in its entirety is devised by the decedent, and the surviving spouse is given a benefit under the will, she is not thereby deprived of her rights in the property, but is put to an election as to whether she will accept all conditions of the instrument, so far as it concerns her, and renounce every right inconsistent therewith.
It will be presumed that the testator knew the extent of his ownership in the property; knew his rights and understood the nature of his wife’s interest in his estate. Thus, unless there is language to indicate a contrary intention, it must be held that, in the *427use of the terms-“my property/’ “all my estate/’ etc., the testator was dealing- with the property in its entirety, without limitations or restrictions. Such language is descriptive of the property he owned at the time of the execution of the will, and should be considered as referring to the interest the testator owned and might lawfully dispose of.
Article 4 of the will makes disposition of testator’s entire estate, both real and personal; it says: “I give, devise and bequeath in trust to Porter Lindsley of Dallas, Texas, as Trustee, and-his successor trustee or trustees, all my estate, real, personal and mixed, for the following uses and purposes (Italicized for emphasis.) (Here follow the bequests which the trustee is directed to carry out).
(1) To his wife: (a) Deed in fee-simple title to the residence in which she lives on Northaven Road, together with all contents therein, except his library; (b) fifty books out of “my library”; (c) all livestock on “my Northaven Farms”; (d) 10 acres of land out of Northaven Farms, in addition to the land on which “my residence is now situated.” (The codicil increases this to 20 acres) ; (e) $5,000 in cash; (f) $20,000 to be paid to her out of “my general estate.” (2) To his daughter, Cadis Lindsley Vars, $2,500 (increased by codicil to $12,500). (3) To his son, $2,500 in cash. (4) To Porter Lindsley 50 acres of land out of “my Northaven Farms”. (5) To Charles McKamy, 10 acres out of Northaven Farms. (6) To Miss Ella V. Freeman $1,000. (7) To the Salvation Army $5,000. (8) To Scottish Rite Crippled Children’s Hospital, of Dallas, Texas, $10,-000. (9) To Elmer Scott $5,000. (10) To Endowment Fund of the American Legion, $1,000. (11) To some public or semi-public institution the balance of “my library” after fifty books are taken by his wife. (12) To Southern Methodist University, “all the residue óf my estate.” Under Article 5 of his will, the testator said: “If necessary to carry out any of the bequests or provisions of this Will, my Trustee herein named is empowered and directed to sell all my property, real, personal and mixed, and convert my entire estate into cash, as soon as, in his judgment, such sales can be effected without loss or sacrifice, and my said Trustee is expressly authorized and empowered to sell my North-aven Farms where I now live in its entirety or in tracts and parcels from time to time, as in his judgment he shall, see fit, for the purpose of realizing the greatest sum therefrom; and he is further expressly authorized and empowered to operate, rent or lease said farm, or any unsold part thereof, until such time or times as my said Trustee shall in his- judgment finally dispose of all said lands, or deliver them to my residuary legatee. (Southern Methodist University) Such sale or sales of my said estate shall be made upon such terms and conditions, including sales for cash or credit or both, as my Trustee shall in his judgment see fit.” (Italicized for emphasis.)
The language of the will, — a devise or bequest of “my property,” a direction to his trustee to sell “all my property, real, personal and mixed,” expressly authorizing the trustee “to sell my Northaven Farms where I now live in its entirety” and “to operate, rent or lease said farm, or any unsold part thereof, until such time or times as my said trustee shall in his judgment finally dispose of all said lands, or deliver them to my residuary legatee,” can be construed only that he was making disposition of the property in its entirety. Can it be said, from the language employed, that the testator desired to sell the Northaven Farms, or deliver all said lands to Southern Methodist University, or to operate, rent or lease said farms encumbered with appellant’s homestead right in 200 acres thereof? There can be no doubt that the testator treated the property as his own, and clearly devised his entire estate, regardless of any right or claim his wife might have or acquire therein.
The will bequeaths property to the wife which she would not receive but for the will, and takes from her rights in the property vested by law, thus imposing upon her the necessity of making an election to either take under the will or renounce the devise or bequest and preserve her rights in 200 acres, and the exempt personal property. The Supreme Court, in the case of Philleo v. Holliday, 24 Tex. 38, announced the following rule relative to elections under a will: “The principle of election is, that he who accepts a benefit under a will, must adopt the whole contents of the instrument, so far as it concerns him; conforming to its provisions, and renouncing every right inconsistent with it; as where the wife claims something under the will which will disappoint the will.” Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Smith v. Butler, 85 Tex. 126, 19 S.W. 1083; Dunn v. Vinyard, Tex.Com.App., 251 S.W. 1043; *428Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147; Cheatham v. Mann, Tex.Civ.App., 133 S.W.2d 264. Also, in Dunn v. Vinyard, supra [251 S.W. 1046], the general and controlling principles of the doctrine of election are fully and clearly set out: “The doctrine of election under a will is too familiar to require a general discussion. Briefly it may be said that where one has a valid claim to property which is disposed of by will (as in the case of the surviving wife in community property), in violation of such right, and at the same time other property to which the claimant would not be entitled is devised to the claimant, an election. becomes necessary. In other words, an election means that a legatee or devisee under a will is put to the choice of accepting the beneficial interest offered by the donor in lieu of some estate which he is entitled to, but which is being taken from him by the terms of the will. When by the express terms of the will the party is put to an election, he must make a choice regardless of the relative value of the two inconsistent rights. To uphold an election the compensating thing need not be of value equal to that taken away. Smith v. Butler, 85 Tex. [126] 130, 19 S.W. 1083.”
The wife’s claim of homestead rights in 200 acres of the Northaven Farms and the exempt personal-property would undoubtedly disappoint the will. The language employed in the will, disposing of all his estate to a trustee for the purposes designated by him, is in violation of the surviving wife’s rights. Flow may the trustee, if necessary to carry out the trust, sell and convert all the estate into cash, sell the Northaven Farms in its entirety, “operate, rent or lease said farm, or any unsold part thereof,” or deliver the unsold, undevised lands to Southern Methodist University, encumbered with the rights and possession of the wife? Flenry D. Lindsley had the right to make his own will, employing such language as he desired to carry out his bequests. True, he might have said, “I give all this to my wife in lieu of her homestead and exempt property,” or some similar expression; but, forsooth, he did not do so. Shall the testator’s will, clear and unambiguous — because the language employed failed to meet the exalted notion of some judge or court — be not tested by his language? The testator’s language must be given the effect intended by him, regardless of form. Manifestly, the testator intended to give his wife the homestead, saying in his will: “To my wife, Marguerite Lindsley, I givem devise, bequeath and instruct my Trustee to give her a deed in fee simple title, the residence in which she now lives on Northaven Road, together with all contents therein, except my library as hereinafter provided, and including the lot, about 200 x 200 feet, on which this residence and garage are now situated.” This was Flenry D. Lind-sley’s homestead; he had a right to designate and limit the extent of it; he had a right to give it to his wife; he did so. The terms in the w-ill, “the residence * * * lot, about 200 x 200 feet,” in which she lives on Northaven Road, are synonymous with the term “the homestead”; and, as used in the homestead exemption laws, has invariably been construed as meaning a homestead, — a house, or dwelling place. The “residence” devised, limited to “the lot, about 200 x 200 feet,” excludes' the idea that the testator intended to allow her to also claim another residence or homestead in 200 acres adjacent thereto. The limitation in the devise is significant: A devise of the residence carries with it the dwelling place, with adjoining land used in connection therewith. So, without the limitation, the residence being on Northaven Farms, the devise would have included the entire tract. The limitation curbed the widow’s further right in the adjacent lands. She could not, after the death of the husband, select from the estate another homestead without denouncing the gift of the designated homestead.
Then too, Henry D. Lindsley gave his wife, in addition to the residence (par. 1, sec. C) “Ten (10) acres of land (increased to 20 acres by the codicil) out of Northaven Farms in addition to the land on wlüch my residence is now situated. This ten (10) acres,” he says, “to be selected by my wife, Marguerite Lindsley, but to be approved by Porter Lindsley”; he also gave Porter Lindsley (par. 4) 50 acres with designated bounds; and to Charles Mc-Kamy (par. 5) 10 acres to be selected by him, but approved by Porter Lindsley. It will be noticed that at no place in the will does the testator mention his wife’s right to a homestead of 200 acres out of North-aven Farms, or that Porter Lindsley, Charles McKamy and his wife shall select their bequests with reference to such a homestead. It cannot be presumed that Flenry D. Lindsley, a man of rare ability and extensive experience in the handling of estates and ’conveyances, did not know *429that his wife could select her endowed homestead. Undoubtedly he knew that the surviving wife, if she wished to have set aside to her a 200-acre homestead, her right of selection would be first and superior to that of Porter Lindsley and Charles McKamy. The fact that he gave Porter Lindsley the right to approve the location of these bequests, without limitation as to their location, and without reference to the wife’s legal homestead rights, tends strongly to show that the testator intended that no such homestead should be accorded to her. If the testator by implication did not so intend, then she was put to an election, either to take under the will or her constitutional and statutory rights. She could not do both. In giving the wife the 20 acres “in addition to the land on which my (the) residence is now situated,” the wife’s rights in the Northaven Farms are clearly limited, and the idea excluded that the testator intended that his wife should also take 200 acres in •addition to the devise.
Furthermore, it will be observed that the testator said (par. 13), “The balance of my estate,” that is, after giving his wife and the other beneficiaries the various preceding bequests and devises, “I will and bequeath to Southern Methodist University of Dallas, Texas.” It will be conceded that “my estate” has a fixed and definite legal meaning; that the property or fund vested was such as belonged to the testator, and, without more, would not refer to the wife’s vested interest in the residue or remainder. But in construing the will, we must determine what property was intended to be transferred to Southern Methodist University. The intent of the testator controls. In determining the intention, we must consider all words as used in their ordinary sense and meaning. We must determine intent from the testator’s standpoint, and in view of circumstances and surroundings known to him. Henry D. Lindsley knew that all the property devised was his separate estate, acquired many years before his marriage to his surviving wife, and that his wife had no present interest therein; thus, in paragraph 4 of the will, he gave Porter Lindsley, for specific designated purposes, “all my estate,” and then in paragraph 5, to carry out his bequest, empowered his trustee to sell or rent, if necessary, “my entire estate.” And, in the concluding paragraph he says, “I direct * * * that no action in the probate court be taken respecting my estate”, etc. Viewing the will from all angles, manifestly, Henry D. Lindsley intended to pass the estate in its entirety, to enable his executor and trustee to carry out his numerous bequests. Such would he the natural and reasonable interpretation of an ordinary person, even if such term, “my estate,” technically, did not include the wife’s dower homestead. The technical term employed must be construed in the sense in which a man of ordinary intelligence would have employed it. At the time the will was drafted, the term “my estate” had no other meaning than the property in its entirety. He described it as the estate actually existed when he drafted the will. At that time, his wife had no legal or equitable title in his estate. The language of the testator should be given the meaning as of the time he employed it, and not when subsequent events might change its meaning.
Furthermore, the library in his home was also exempt property; the widow, under the Constitution and statutes of this State, had the right to have it set apart for her use and benefit; yet, in his will, Mr. Lindsley gave his wife fifty books out of , the library, to be selected by her, and provided that the balance should go to some public, or semi-public, institution to be selected by his executor and trustee. How may the executor and trustee carry out the bequest to the wife, and then, in the absence of his wife’s election, give to some public or semi-public institution the balance of his library? The wife of the deceased is a comparatively young woman, thus can it be read into the will that the testator intended that the bequests be held in trust for thirty or forty years, until the widow dies, or abandons her homestead rights ? Such is untenable. Certainly the surviving wife’s rights, if allowed, would disappoint the bequests; there can be no doubt that the will, upon its face, is inconsistent with the rights of the widow in the deceased’s estate, necessarily putting her to an election.
I am of the opinion that the action of the trial court, in sustaining the demurrers and dismissing the suit, was correct. It is not clear from the petition that the wife has elected to take under the will, and unless she has done so, courts cannot divest her of her right to elect. It might be inferred from the record, however, that she has elected to take under the will rather than *430against the will. The judgment of the court below should be affirmed.