dissenting.
In the construction of testamentary documents we ascertain, if possible, the intentions of the testator and follow them when we can. This rule, though everywhere acclaimed, is not always enforced, but time has demonstrated its usefulness and has earned for it more than lip-service.
Here it is perfectly plain that this testator intended that sometime, somewhere and in some circumstances these residuary legatees should share in what was left of his estate, should anything be left. The language of the will is: “Upon the death or re-marriage of my wife, Minnie C. Whitehead, I want the balance of my estate to be equally divided between my brothers,” etc. To ask us to believe that this testator did not intend and desire that the residue of his estate be in this manner disposed of is to ask the impossible. With his purpose plain, we should follow it if we can.
Mr. Whitehead, a layman, of course thought that his wishes would be respected and in this simple faith said: “I think I shall write a will like I want it.” All that can be said about this is that he was wrong. A man may do as he wills with his own, only in the event that he does something which the law permits him to do. He is hedged about with rules, some of which would be news to him.
Let us concede for the sake of argument that an estate given to the widow to be held until her death is not a “life estate” and that the “balance” of it in hand upon her death is not a “remainder,” and that Code, section 5147, is not applicable.
After all of this, we are still left to determine the effect of the widow’s remarriage.
*388This provision is perfectly understandable. Mr. Whitehead wished that his wife be left to enjoy every comfort which he could bestow, even though his entire estate be absorbed; but he did not feel it was incumbent upon him to support another man’s wife. Such support the second husband may have been expected to supply, and it was with this possibility in mind that he then turned to his next of kin. All that he did was natural and might have been expected; he gave them what was left.
The problem thus presented is in a large measure answered by Mr. Justice Spratley in the late case of Trice v. Powell, 168 Va. 397, 191 S. E. 758. The pertinent part of the will there under construction reads:
“2nd: That I give and bequeath to my sister, Nannie Goodwin, all money & bonds and the entire landed estate to do as she thinks proper, so long as she remains single, but if she marries it is to be sold and divided between the heirs of body of Julia D. Kuper, Mattie W. Powell & Robert Goodwin, and she to retain one-fourth of said sale, and in the event of her death intestate, it is to be divided as above stated.”
In telling us of his true intent, he said:
“Taking up the words, phrases and clauses one by one, we find that the testator first gave and bequeathed to his sister, Nannie Goodwin, ‘all money and bonds and the entire landed estate to do as she thinks proper, so long as she remains single,’ etc. If the will had stopped after the word ‘estate,’ there is no question but that a fee simple would have been conveyed, words of limitation being no longer necessary in this State. But since the will does not stop there, we must construe the meaning and effect of the words which follow. It should be noted here that the word ‘do’ is employed and not the word ‘use.’ The word ‘think’ in general, is defined by the dictionaries to have a meaning equivalent to ‘consider,’ ‘believe,’ or ‘conclude.’ Evidently, what she should ‘do’ with the property, was left to her discretion as to what she considered, believed, or concluded proper. The word ‘do,’ read in connection with language *389following it, has a broader meaning than the word ‘use.’ It does not confine her to a mere use of the property for her benefit but imports an enlarged control and right there-over. It cannot be conceived that anyone could have a greater or more extensive power over property than the right to do with it as he or she may think proper. The several words import all the attributes of a fee simple, which is absolute except for the provision terminating it. Nor can we take away such a valuable right, so explicitly conferred, without good reason therefor.
“We then arrive at the conclusion, that whether we end the clause after the word ‘estate,’ or after the word ‘proper,’ a fee simple estate is conveyed, subject only to such limitation as is placed thereon by the language ‘so long as she remains single,’ annexed thereto. These later words mark out the utmost period during which the estate conveyed to her may endure. The clause ‘but if she marries,’ is but another expression confining the disposition of the estate to a period ‘so long as she remains single.’ Both clauses, ‘but if she marries,’ and ‘in the event she dies intestate,’ are words of defeasance with a meaning so clear and distinct that little doubt can be entertained that they established a special limitation upon the fee simple.”
In each of these cases, the widow took over her husband’s estate, real and personal. In each of them, she had the power to do with that estate whatever she considered, believed, or concluded to be proper; and each estate was subject to this limitation — it was to terminate upon remarriage. If one estate was defeasible, the other was.
That is to say, the will is given the same construction that should be given to it were we to substitute for, “That I give and bequeath to my sister, Nannie Goodwin, all money & bonds and the entire landed estate to do as she thinks proper,” “I give in fee simple to Nannie Goodwin all my money and bonds and entire landed estate.” In either event, she would have been left to “do” with the estate what she thought proper. “It cannot be conceived that anyone could have a greater or more extensive power over property than *390the right to do with it as he or she may think proper.” What was taken in the Trice Case was a defeasible fee which might have been defeated upon remarriage; and that is this case. Courts should not be alert to explain away what is plain upon its face.
There is no magic in “fee simple.” A defeasible fee of necessity presupposes the granting of a fee which after-wards may be determined. 1 Washburn Heal Estate (6th Ed.), sec. 140; 2 Minor’s Inst. (3rd Ed.), p. 86; Graves Notes on R. P., sec. 37.
There can be no doubt what is meant by “the balance of my estate.” Whitehead, in his will, directed first that his debts be paid. “The balance of my estate” he gave to his wife and upon her remarriage “the balance of my estate” he gave to his next of kin. The “balance” is “the remainder; the rest.” Webster’s International Dictionary. If a depositor asked of a bank what his balance was, no one could doubt what he wanted. As Mr. Justice Spratley said, “We will not hesitate to give to the words and phrases used the meanings which they have in the usual and ordinary acceptations.” The provision which gave to the sister, Nannie B. Whitehead, $150 a year must fail, and those which deal with the disposition of the estate upon the death of •the widow must, under the rules of stare decisis, fail also. Skinner v. Skinner’s Adm’r, 158 Va. 326, 163 S. E. 90; Southworth v. Sullivan, 162 Va. 325, 173 S. E. 524. But should a remarraige come to pass, then these next of kin should take, for the wife’s estate in whatever may be then left is thereby defeated, and it is to this extent that I find myself compelled to dissent.