The question presented in this case is,.whether the children of the brothers of- Hiram Morehouse, deceased, took under his will any. interest in the real estate sought to be partitioned in this action. .The plaintiff claims an interest therein under the provisions of such will. The- defendants appealing claim that Effie May Morehouse, his only child and heir at law, took under, such will the whole title to such premises, and that through her will such title has been devised to them. .
The provisions of the will under which plaintiff claims have been •carefully considered by this court, and we are not all agreed as to .their meaning and effect. But a majority of the court have reached the conclusion that under the will Effie May Morehouse, the daughter, at the time of her death, was seized of the whole estate, and-that .her devise thereof to the appellants vested in .them the. entire interest thei’ein. That being so, the plaintiff had no interest whatever' in *253the premises, and his complaint for the partition thereof must necessarily be dismissed.
We have not overlooked the rule that the intention ef the testator is to control in construing the will, and that sueh intention may be ascertained from- an inspection of the whole will, and from such extrinsic circumstances as are pertinent and lawfully before us ; nor have we' given to any of the language used a technical or restricted meaning calculated to defeat the testator’s plain intent. Without entering into a long analysis of its provisions, it is sufficient to say that, in our opinion, the testator has given to his- daughter the fee in the whole estate, subject, however, to its being divested in the event that she should marry and die, leaving a child or children, or die childless leaving a husband surviving. Neither of those events having happened, the fee so given her was never divested, and she was at liberty to devise the same.
The judginent should be reversed, and the complaint dismissed, with costs to the appellants.
All concurred, except Herrick and Merwik, JJ,,, dissenting.