(dissenting). I am of the opinion that testatrix died intestate as to the residue of the property, and that it should be divided as directed in 84 O. S. 1941 § 213, par. 3, one-half to the *381son of the deceased sister of testatrix and the other half to the children of her deceased brother.
Since the codicil referred to the will, it had the effect of republishing the will, as modified by the codicil, as of the date of the codicil. 84 O. S. 1941 § 57. The result is that on October 21, 1936, testatrix published her will (1) giving to her five named nephews and nieces one dollar each; (2) bequeathing the residue of her estate, which consisted entirely of personal property, to her sister, then dead and known to her to be dead; and (3) appointing Rev. Firebaugh executor of her will.
The law is that, in the absence of a statute saving a bequest or devise to a person dead when the will is made and naming the persons who shall take the same (and we have no such statute), the bequest or devise is void. 69 C. J. 1066; 28 R. C. L. 336.
There is no language found in the will or codicil from which it may be reasonably inferred that testatrix wanted her sister’s son to take the residue. The majority opinion reaches the conclusion that such was her intention solely by reason of the fact that testatrix knew that her sister was then dead. It cites no authority sustaining such a conclusion, and I am unable to find any. The decisions are to the contrary.
In Stiegler v. Hibbert, 17 Del. Ch. 32, 147 Atl. 252, the court said:
“In this case the only possible suggestion that the testamentary intent was that Mrs. Alsentzer’s children should be substituted for her is, that the testator knew she was dead when he wrote his will and therefore must have meant her children to step into her place as legatee. No case has been cited and I believe none can be found, where a testamentary intent to substitute is gathered from a bare circumstance of that sort. If such were the proper rule of construction, there never was any need for including void legacies in the many statutes against lapsing which are found in the various states.”
In Burton v. Masten, 18 Del. Ch. 242, 158 Atl. 136, it is said:
“She being dead at the time, the gift was void. No intent to substitute her heirs can be gathered from the bare circumstance that the testator knew her to be dead at the time he wrote the codicil.”
In Nelson v. Minton, 46 Ohio App. 30, 187 N. E. 576, the court used this language:
“Courts cannot interpolate words or phrases into a will. To do so is to write what the testatrix has not written. It is the written will that the court must construe.
“While courts will avoid intestacy, if possible, the desire to do so cannot prevent a lapse where words constituting testate disposition are lacking.
“Now in this case the testatrix knew the devisees in question were dead when she signed the will. She also is presumed to know that devises to them lapsed and were void. What was her intention in naming them? A mere gesture in the direction of an equal distribution between her own and her husband’s relatives? An intent to give a group distribution with a taking by the survivors? A per stirpes distribution? Any one of these or other suggestions can at best be but opinions, guesses, one as good as the other.”
We must keep in mind that neither the expression “or her heirs” nor the expression “and her heirs” nor any similar expression appears in clause 3, the residuary clause, after the name of Sallie M. Grantham. It is generally held that the first expression is indicative of an intention to substitute but that the second is not. See annotations in 78 A. L. R. 992 and 128 A. L. R. 94.
Since the intention of a testator must be ascertained from the four corners of the will (84 O. S. 1941 § 152; Spaniard v. Tantom, 131 Okla. 75, 267 P. 623), I am forced to the conclusion that there is nothing in the will to show an intention to substitute the sister’s son for the sister. The residuary legacy is, therefore, void.
*382If the testatrix intended the sister’s son to take the residue, why was the son not named as executor in the codicil or why was the codicil made at all, since under paragraph two of the will he would- have been executor? The sister was named executrix as long as she lived and could take the residue. Why substitute a third party as executor instead of the one intended to receive the residue?
Our surmise or opinion as to what the testatrix intended cannot be substituted for testamentary language effecting such intent. As was said in Dildine v. Dildine, 32 N. J. Eq. 78, in a like case, “the rules of construction forbid substitution of the children for the parent under such a bequest.”
Nor can the residuary bequest be saved for the sister’s son by reason of the provision of 84 O. S. 1941 § 142. That section applies only when the de-visee dies between the time of the making of the will and the death of the testator. In re Revard’s Estate, 178 Okla. 524, 63 P. 2d 973. Furthermore, testatrix here left no real property, and that see-: tion applies only to real property. See In re Ross’ Estate, 140 Cal. 282, 73 P. 976; In re Lewis’ Estate, 39 Nev. 445, 159 P. 961, 4 A. L. R. 241; In re Fratt’s Estate, 60 Mont. 526, 199 P. 711.
For the foregoing reasons, I respectfully dissent.