(with whom concurs Russell, C. J.), dissenting. This case involves a construction of the will of John King, executed on October 17, 1893, as follows:
“Item 1. I give, bequeath, and devise to my wife Nancy E. King, for and during her natural life only, my entire home place situate, lying, and being in Patterson’s survey, in Hog Mountain *155district, said county and State, embracing and including (480) four hundred and eighty acres, more or less; also give bequeath and devise unto her all of the personal property of which I may be possessed at the time of my death, including money, notes and accounts, stock, cattle, household and kitchen furniture, wagons, and all and every other article of personalty that may at my death be owned by me, she my said wife to so use and occupy the said personalty as will best subserve her own desires, needs, and purposes, she to have exclusive control over the same, with the power and right to sell or otherwise dispose of the same as she may desire or see proper. She is to have the same power over and rights with the rents, issues, and profits of said 480 acres of land, but is not permitted to sell or dispose of said land in any way to the injury of the five daughters now living with us and hereinafter provided for, the object being to provide a home for my said wife during her natural life and the land to vest at her death as hereinafter directed.
“Item 2. I give, bequeath, and devise unto my five daughters now single and living with me, to wit, Mary J. King, Kachael E. King, Emma 6. King, Sidina E. King, and Savilla O. King, share and share alike, upon the death of my said wife, and after my said wife’s life-estate therein shall by her death cease and terminate, the above-described 480 acres of land, which is in item 1 sufficiently described, to be theirs and belong to them after the death of my said wife exclusively, no one or other of my said children to have any part or parcel or any interest or title therein and thereto whatever, and whatever of said personalty is left after my wife’s death is to be the exclusive right and property of these five girls as aforesaid.
“Item. 3. I desire and it is my will that in the event of either of my said daughters named in item 2 marrying, that her interest in said property shall in no wise be used or become liable for any debt, contract, or liabilities of her said husband. I desire and will further that in the event of such a marriage of one of my said daughters or others of them, and her death leaving no children or representatives of children, then the interest of such an one shall not vest in, go or belong to her said husband, nor' vest in) go or belong to all the children alike, but is to revert and belong to and be the property of the said five daughters or their representatives who *156may be then in life. That is, in case of death of one of said daughters after marriage, her share in said 480 acres of land goes to and vests in her surviving sisters above named, or their representatives if their parents are dead, unless said deceased wife should leave a child or children, in which case the mother’s share shall vest in and belong to said child or children exclusively, and in this case the surviving husband having no interest therein. After my said wife’s death, if all of said daughters by reason of marriage or otherwise should among themselves agree to divide said farm of 480 acres among themselves privately, they have the right to do so.”
Items 4, 5, and 6 relate to bequests of other property to other children, and need not be here set out.
“Item 7. As I have willed, given, and bequeathed all of the personal property remaining at the death of my wife to my five children hereinafter described, being the girls now living with me, I desire, in case of the death of either One of them, that the interest of such deceased one shall vest in the remaining ones as directed in reference to the share of the real estate as outlined in item 3, these girls having the right to use and dispose of said remaining personalty as they may mutually agree, no part thereof to belong to or be shared in by any of the other of my children as directed in item 2.”
The other material facts and contentions appear in the opinion of the majority of this court. The defendant in error relies upon Patterson v. Patterson, 147 Ga. 44 (supra), as being controlling-in this case. In the Patterson case it was stated and held as follows: “The second item of the will of Drewry S. Patterson provided 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.’ Margaret Patterson, the person designated as life-tenant, survived the testator; and Mary Jane Patterson survived the life-tenant, but did not marry, and died childless, leaving a will disposing of the property referred to in this item of the will. This property was claimed by one deriving title from David W. Patter*157son and his children. Ileli, that, under the provisions of the item of the will above set forth, Mary Jane Patterson, having survived the life-tenant, took an absolute estate in fee simple; and the court erred in sustaining the contention of the claimant.” Standing alone, the Patterson case might be controlling of the question here involved; but applying the familiar rule that the intention of the testator is the cardinal rule of construction, we are of the opinion that the Patterson case is not controlling here. What was the intention of the testator in the instant case? It is evident from the will and the various expressions contained therein, construing it altogether, that the testator wanted to provide for his daughters, and to give them, and them alone, the 480 acres of land after the death of his wife, the life-tenant, and he expressly declared that the interest of the daughters should not be.subject to the debts or contracts of any husband they might have. In addition to that, the will further provided that in case of the marriage of either or all of his five daughters, and they died without leaving children or representatives of children, the share of such daughter should go to the surviving sisters, and that the property should be theirs. In this state of the record, the Chief Justice and the writer are of the opinion that it is clear as to what the intention of the testator was with reference to the land devised to his daughters.
The defendant in error relies also upon the deeds executed by the sisters to the wife of the husband in the present case, but such deed could convey no greater interest than the sisters had and all the title and interest they had was derived from the will of testator, and, therefore, the deed would not be controlling of the interest which the deceased sister had in the land, but the interest she had at the time of her death was derived from the will, and the deed conveying the interest to the deceased sister was in compliance with the authority given by the testator in the will to the daughters that they might divide the property in kind. The purpose of executing the deeds evidently was to partition the land under the authority conferred by the will itself, and the sisters adopted this method of partitioning the land, inasmuch as they were tenants in common under the will, with authority to divide it share and share alike. So the Chief Justice and the writer are of the opinion that the will devised to the five daughters the 480 acres of land with the *158privilege of dividing it in kind, and that if either of the daughters should die without leaving a child or children, or representatives' of children, the deceased daughter’s share should go to the surviving daughters.
In item 3 of the will it is expressly provided, that, “in the event of such a marriage of one of my said daughters or others of them, and her death leaving no children or representatives of children, then the interest of such an one shall not vest in, go or belong to her said husband, nor vest in, go or belong to all the children alike, but is to revert and belong to and be the property of the said five daughters or their representatives who may be then in life,” etc. Here is a clear intention of the testator to exclude the daughter’s husband from any participation in the property devised.