dissenting. The last will and testament of Edward H. Moore contained, among others, certain provisions which were for construction under an equitable petition brought to the superior court for that purpose. In item 2 of the will the testator devised to his wife, Mary E. Moore, “to be hers during her natural life or widowhood,” certain described real estate, consisting of various tracts and lots of land and an undivided interest in certain realty described in said item, together with $500 in money. This item concludes: “ The above-bequeathed property and money at the death of said Mary E. Moore, at her death or second marriage to go to my daughter, Katie C. Moore, if living, and if not living, to go to the heirs of J. S. Moore, to wit, J. E. Moore and Belle Moore.” Mrs. Katie C. Cook (née Moore), the daughter of the testator, filed a petition against, the executrix, Mrs. Mary E. Moore, and against J. E. Moore and Belle Moore (Burch), in which she insisted that under item 2 of this will she has an absolute, indefeasible interest in the remainder interest of the real estate described therein, and that her interest in the remainder became indefeasibly vested upon the death of the testator; and the construction of item 2 -thus insisted upon was adopted by the court in the final judgment and decree. Plaintiff in error, J. E. Moore, insists that this was an erroneous construction, in view of the language of the item itself and the language of item 5, which will be set forth later. And this contention seems to me to be sound. In my opinion, the item under consideration gave to Mrs. Mary E. *846Moore a life-estate and to the daughter, Katie C. Moore (now Katie C. Cook) a vested-remainder interest, liable to be divested in case the remainderman should die before the life-tenant. “ A vested remainder is one limited to a certain person at a certain time or upon the happening of a necessary event.” The remainder here is limited to a certain person upon the happening of a necessary event, that is, the death of the wife of the testator. The fact that the estate might fall in sooner upon the happening of a contingency, that is, the second marriage of the widow of the testator, did not change the character of the remainder. In the case of Patterson v. Patterson, 147 Ga. 44, one item of the will under consideration read as follows: “ I will that my wife, Margaret Patterson, reside on and have a lifetime interest in my homestead; . . and at her death I wish the homestead on which I now live to be the property of my daughter, Mary Jane Patterson. If the said Mary Jane Patterson should die without child or children, then the property or the proceeds of the same to be the property of my son, David W. Patterson, or, in case of his death, the property of his children.” In construing this item of the will this court said: “ If the will had merely provided that the widow of the testator should have a life-estate, with remainder to the daughter, Mary Jane, and after her death, in case she should die childless, remainder to D. W. Patterson, then the words of survivorship would have been construed to refer to the death of the testator. But construing the language of the item of the will under consideration, providing that at the death of the testator’s widow the land was to be the property of his daughter, Mary Jane, and that if she ‘ should die without child or children, then the property to be the property of my [testator’s] son,’ etc., the time at which the remainder became absolutely vested was the death of the widow of the testator.” In the case of Nottingham v. McKelvey, 149 Ga. 463, it was said: “ A will declared: ‘ I give and bequeath to my nephew, Willie II. Stubbs, the two-thirds interest in all the land that was deeded to me by my father on the 23rd day of June, 1873, to have and to hold the same in fee simple. . . I give and bequeath to my nephew, Alpheus B. Stubbs, the remaining one-third interest in the land deeded to me by my father on the 23rd day of June, 1873.’ By a codicil, executed on the same day the will was executed, it was provided: {I will and desire that if my *847two nephews, Willie H. Stubbs and Alpheus B. Stubbs, should die without heirs of tlieir bod)r, then that all my property that is willed and given to them go and be the property of [other named persons], to them and their heirs, forever, in fee simple.’ Held: The words in the above items of the will and codicil give the land to the above-named nephews of the testatrix in fee simple, defeasible upon their dying without child or children, although such nephews survived the testatrix. Civil Code, § 3662; Gibson v. Hardaway, 68 Ga. 370; Ewing v. Shropshire, 80 Ga. 374 (7 S. E. 554); Brown v. Lane, 147 Ga. 1 (92 S. E. 517).” This is the conclusion which I have reached from the language of item 2 standing alone, while plaintiff in error insists that this is the proper construction in the light of the language used in' items 4 and 5.
Items 4 and 5 of the will read as follows: “ Item four. I give and bequeath to my daughter, Katie C. Moore, the residue of my estate, consisting of land, money, notes, accounts, 'mortgage, stocks, bonds, and gold watch and chain, also one piano — also my insurance policy on New York Life Company. Item five. My will is that if my daughter Katie C. Moore should die without leaving an heir of her body that all property I have bequeathed to her ■shall revert in full title to' J. E. Moore and Belle Moore heirs of my brother J. S. Moore and I hereby will that if my daughter Katie C. Moore should die before I do leaving no heirs of her body that above bequeath to Katie C. Moore shall go to said J. E. Moore 'and Belle Moore at my deaih.” The first part of item 5 strengthens us in the'conclusion that the construction given to item 2 is correct, that being the part wherein it is provided that should testator’s daughter die without leaving an heir of her body, the property bequeathed to her should revert in full to J. E. Moore. This part of item 5 does not have the effect to change the provisions of item 2, but makes that item clearer. But the following part of item 5 is more difficult to construe; that is, the clause-providing that if the daughter should die “before I do, leaving no heirs of her body, that above -bequeath to Katie C. Moore shall go to said J. E. Moore and Belle Moore at my. death.” In fact, it would be .impossible to give the entire item 5 a satisfactory construction independently of item 4 and item 2. But the intention — and that, when it can be arrived at, is to control, under the cardinal rule of construction of wills — is made manifest. Item *8485 consists, apparently, oi one sentence, and contains no punctuation marks whatever; but I call that part of the sentence to and including the word “J. S. Moore” the first half, and the part beginning “ and I hereby will ” .as the second half. Construing item 2 as we have, that is, holding that it gives a vested remainder to Katie C. Moore, defeasible upon her dying before the life-tenant without issue, and holding that that construction is not changed by item 5, but rather confirmed by it, then the second part of item 5 is made intelligible; and the conflict between the second part aiid the other portion of the will is removed by construing it to refer to item 4. In its terms it refers to the “ above bequeath.” The expression “above bequeath [bequest] ” could refer to item 2 as well as item 4; but for two reasons we restrict its applicability to item 4. The word “ above ” or “ said ” more naturally refers to the provision immediately preceding such word of reference; but especially is it made applicable only to item 4 by the provision that if the daughter, Katie, should die before the testator, the property should go to J. E. Moore and Belle Moore. Then it would be in direct conflict with item 2, which- gives a life-estate to the wife, if we should seek to apply it to item 2. But it is not in conflict with item 4, which gives the property therein referred to absolutely to the daughter, no prior estate having been carved out of it. We think, therefore, that item 5 should be so construed as to make the first part of it refer to the property devised in item 2, and the second part of it, beginning with the words, “ I hereby will,” etc., apply to item 4. Of course, it might be said in reference to the first part of item 5, as we have remarked in regard to the second part thereof, that it might -be construed to refer to both items 2 and 4. But giving it such construction as to make it refer only to item 2, it harmonizes with the construction above given the latter item and strengthens it, while the other construction would not.
I think, therefore, that the court erred in holding that under the item quoted above the defendant in error took an absolute, indefeasible title in fee simple to the property described in item 2, but properly held that under items 4 and 5 the defendant in error, upon the death of the testator, took an absolute, indefeasible title to the property described in item 4.