(dissenting).
I find myself unable to concur in the conclusion of my associates upon the interpretation of the conflicting clauses in this will.
In Clause II, the testatrix gave her entire estate to her husband. I agree that the several specific bequests later appearing must be considered as modifications of such absolute *59bequests. Ample authority for giving effect to such modification exists and is noted in the majority opinion.
However, Clause VI, if construed as indicated in the majority opinion, is more than a modification. It is wholly destructive of effect of Clause II, for it changes an absolute devise into one which may be wholly defeated by a contingency happening after the death'of the testatrix.
If the husband of testatrix predeceased her, by law the devise would have lapsed and Clause VI would have become operative subject to the modifications contained in other clauses in the will.
That the testatrix considered she had the right to control the effect of such lapse or limit it to a period of a year prior to her death is merely indicative of her lack of knowledge of the law applicable to lapsed devises.
The construction placed upon this clause by the majority of the Court is effected by what seems to me to be a strained construction of the simple language used. Now, of course, the testatrix could have foreclosed any ambiguity by the use of other language. She could have said:. — “If my husband predeceases me;” or, she could have said: “If my husband die within one year after my death.” She did not say either before or after “my death,” but used the words “of my death.”
Regardless of fixed rules of construction which must always give way to. an expressed intent, it seems apparent to me that the testatrix when she drew the will was thinking of the circumstances which would exist at the time of her death. There can be no question that this applies to the latter part of the Clause VI where she refers to the possible decease of one or more of the devisees mentioned in Clause VI: — “If any have passed away,” she says. Why say as to these she meant before her death and as to the husband after her death? It seems clear to me that the entire clause had reference in the mind of the testatrix to matter which would occur prior to her death. This Court would not have used the words adopted by the testatrix. But when she states: “If my, husband George Kramer should have passed away within a year of my death,” it seems clear to me she was referring to what might occur prior to her death and not afterward. Of course, she could have modified her will to meet such a contingency, just as she could have modified it to meet the contingency of the death of one of the devisees mentioned in the latter part of Clause VI.
Compare the language in the beginning and end of the clause. “If my, husband George Kramer should have passed away” — “If any have passed away — ” Why adopt one meaning in one case and another meaning in another.
*60As stated before the separate bequests occur as modifications in either construction and. consequently are not helpful in reaching a conclusion.
I am fully convinced the testatrix had no thought of defeasance. She was considering only contingencies which might occur prior to her death in each case. Whether she considered her testament as a necessarily final disposition of her estate, not subject to modification by a new will or codicil, or that she merely desired it to be so is problematical.
In any event I can see no reason for imposing a construction upon her language which which to me seems strained and contrary to the intent evident from the language used.
It is my conclusion that the heirs of the husband took the estate subject to the bequests mentioned in the other items of the will.