delivered the following dissenting opinion.
I dissent from the opinion of the majority of the court in this case. All agree that except for the codicil Green C. Love takes an estate in fee simple. Unless defeated by the supplementary testament, that estate continues. As to Mrs. Stafford and Fred D. Love, the testator left no doubts.. No uncertainty is annexed to the certain event of the death of either of them. At their death, whenever that comes, there is the remainder to their children. But, as affecting the course of descent in the case of Green C. Love, the certain event of his death is turned into an uncertainty by the annexation of the condition that it shall be “without lawful issue born alive and living at the time of his death.” These words should be considered only as a qualification in favor of the remaining devisees .of the will, for they would have precisely the same potency in construing that document if Green C. Love had never married. We cannot say as a matter of law that the possibility of issue born alive to Green C. Love by his present wife is extinct. If such a child should be born and should outlive its father but die without issue before its mother, she would inherit from it. *111The will has not cut off her inheritable quality in such an instance, and why should it in others unless clearly so nominated in the testament? The words relating to the death of Green C. Love without issue are of use only to determine the dilemma of whether the fee goes to him or the “remaining devisees.” By a natural construction of its language the third paragraph of the codicil passes the property therein mentioned either to Green C. Love or to those designated therein as remaining devisees. The descendants of Green C. Love are referred to only in the negative. They are not mentioned affirmatively as devisees. The codicil casts no estate upon them. As his kindred existed when he made the will, they are not heirs of the testator, so that they must be named or provided for in his testament. If no such persons exist at the death of Green C. Love, the operation of the will takes the estate, not to their heirs, such as a parent or collateral kindred of the other line, but to the “remaining devisees” of the will. If persons of the issue of Green C. Love are in being at his death, they may inherit from him; but no property will come to them by virtue of this codicil. If all three clauses of the codicil are to be construed alike, the testator would have said: “And that at his death the said devise or legacy shall go to his lawful issue living at the time of his death or if there be no such issue said devise or legacy shall belong and go to the remaining devisees,” etc. In respect to the wife of Green C. Love, the only object of the testator was to keep her from inheriting directly from him by virtue of being the widow of his son. The strong desire of the decedent, several times expressed in the will, was to direct his property into the hands of his descendants, not in any unusual proportions, but as the law would otherwise distribute it among those of his blood. The mere incident of possible dower, which is not an estate inherited from any one, would not change the ultimate destination of his *112property, viz., the enjoyment of it by the issue of his loins. The words “independent of his wife at all times” may be set down as a negligible factor or as precatory words. They affect nothing. They are as well applicable to a life estate in Green C. Love as to any other that might be cast upon him. Her inheritance would be defeated, not by these words, but by the existence of descendants of her husband living at the time of his death. The objection that she could incumber her husband’s fee-simple estate by incurring expenses for the support of the family applies equally well to his supposed life estate, and, besides this, such expenses would be his own liability for which any estate he had in the land would be holden. Section 7039, L. O. L. He could also convey to her his life estate as well as his fee-simple estate.
The problem, then, is to work out a solution of the uncertainty annexed to the certainty of the death of Green C. Love by the words, “lawful issue born alive and living at the time of his death.” The context is not silent here, but will aid in solving the problem. The will in question is something more than a mere direction of how the estate shall be distributed, leaving that to be effected as to time automatically, so to speak, by the operations of the probate court. The instrument goes further and creates a trust, appoints trustees, passes the estate to them, and fixes a time certain when their stewardship shall be terminated. To “pass” means, in this connection, to devise. Gant v. Henly, 64 Mo. 162; Young v. Boardman, 97 Mo. 181, 185 (10 S. W. 48); Joyslin’s Estate, 76 Vt. 88 (56 Atl. 281). If this same word “pass” were used alone in a will made directly in favor of any one, it would operate the same as if the word “devise” itself were employed. The estate being devised to the trustees, the centui que trustent take, not immediately from the testator, but from the trustees, and must *113be bound by the terms of the trust, one of which is that it must be wound up and final distribution made January 1, 1907. It says:
“I direct that my trustees make final distribution of my estate on January 1, 1907.”
It was not the intention of the testator to prolong the matter indefinitely. Attention must be given to the word “final.” It means a termination and signifies the last beyond which there can be no other. The trustees are required not only to divide, but also to distribute, the property. This depends for fulfillment, not upon some death other than that of the testator, certain enough as to event though uncertain as to date, but upon the time appointed by the will. It is said by appellants’ counsel that death alone is no contingency, and that, if the first taker lives beyond the testator, he takes an absolute estate; but, if the death of the taker is coupled with any other contingency, such death means his decease at any time, whether before or. after that of the testator. In this case, however, the intervention of the trust estate and the requirement that it come to an end January 1, 1907, operate to fix the time of distribution, making the word “then” in the third clause of the codicil correspond to that date and designating the then living Green C. Love as the devisee rather than the “remaining devisees.” The date appointed for final distribution establishes for the contingency of his dying without issue a boundary beyond which it can have no effect. The testator, through his trustees, disposed of all his property to named devisees without prescribing that, in case of the death of either, the descendants of such a one should take that share by right of representation. On the contrary, he says that, if Green C. Love die without issue, his share shall pass to the remaining devisees — that is, to those devisees then surviving — not per capita, but in proportion as they hold the shares he has designated.
*114Final distribution requires that the estate distributed be certain and not contingent, and that nothing be left for ascertainment. If Green C. Love took only a life estate, the trust was not ripe for final settlement while he lived, for until he died it could not be known who of the devisees remained or survived. Holding only a life estate, if he dies without issue, the trust will have to be reopened and another distribution made among the remaining devisees, whoever they may be. But the date, January 1, 1907, named in the will, puts an end to the process of devolution marked out for his estate by the testator. When that day came, uncertainty vanished. Final distribution was no longer hindered or impeded by the uncertain tenure of Green C. Love’s life or want of knowledge of the number and existence of the remaining devisees. The trustees were then bound to distribute finally, once for all, and to whom ? The only answer is: To those at that time qualified under the will. If Green C. Love’s fee-simple estate declared by the original will was not defeated by his death without issue prior to January 1, 1907; if, on the contrary, he was alive at that time — he was that qualified devisee for one of the six shares to whom the trustees must make final distribution rather than to his alternates, “the remaining devisees of my said will.” To hold otherwise would be to keep open indefinitely a trust which the testator directed should be closed at a time certain. He did not leave it to the halting pace of litigation or the slow march of chancery, but, as he had the right to do, prescribed a time when operations under the will should cease and his property should be finally distributed among the ultimate holders. The will itself provides for its own consummation. His directions in that respect are as authoritative as any in that document and should be obeyed. The parties adopted this construction of the will by participation in the distribution which the trustees made as stated in the plead*115ings, and they should not now be heard to question it. They gave practical effect to all the terms of the will so that the property became capable of present use and enjoyment. This result should not now be overturned, for the law does not presume or favor restraints upon alienation.
In brief, the will gave Green C. Love a fee-simple estate. The codicil did not supersede it but only appended the contingency of his death without then living issue. The contingency itself was limited by the appointment of January 1, 1907, as the date of final distribution. The fortuitous events did not occur within the period prescribed for its potency and cannot now or ever disturb the absolute estate to which it was annexed. At best the case falls within the principle that, where an absolute fee is once clearly devised, it cannot be afterward limited or taken away except by equally explicit language. It is true we must have regard to the intention of the testator, but it must be ascertained by a judicial examination of what he has written. Under any view of the case most favorable to the defendants, the obscurity of language in the third clause of the codicil is in such strong contrast to the clear diction of the original will conferring on the plaintiff “the highest estate a man hath in lands” that for this reason, if for no other, the decree of the circuit court should be affirmed. 1 Redfield, Wills, c. 9, §30; Holt v. Wilson, 82 Kan. 268 (108 Pac. 87); McNutt v. McComb, 61 Kan. 25 (58 Pac. 965); Lonmuller v. Mosher, 74 Kan. 751 (87 Pac. 1140); Byrnes v. Stilwell 103 N. Y. 453 (9 N. E. 241: 57 Am. Rep. 760); Wasbon v. Cope, 144 N. Y. 287 (39 N. E. 388); Fowler v. Duhume, 143 Ind. 248 (42 N. E. 623); Lambe v. Drayton, 182 Ill. 110 (55 N. E. 189); Meyer v. Weiler, 121 Iowa 51 (95 N. W. 254); Brewster v. Douglas (Iowa), 80 N. W. 304; Roth v. Rauchenbusch, 173 Mo. 582 (73 S. W. 664: 61 L. R. A. 455); Spencer v. Scovel, 70 Neb. *11687 (96 N. W. 1016); McClellan v. Mackenzie, 126 Fed. 701 (61 C. C. A. 619); Yocum v. Parker (C. C.), 130 Fed. 722.