(dissenting). I am unable to agree to the construction put on the clause of the will considered in the second division of the opinion. In no clearer terms could the testator’s intention that George Schrader be required to pay Henry $500 as a condition precedent to the vesting of title in him as devisee have been expressed. Indeed, this is so manifest that the decision of the majority falls little short of holding that a testator cannot attach a condition of this kind to a gift of land and have it regarded as precedent to the vesting of title. But the authorities are otherwise, and it is conceded that the canons of construction enumerated do not exact construction of a condition as subsequent when this will do violence to the language of the instrument under consideration. The testator was dealing with two contingencies (1) that of his wife outliving him, and (2) that of his wife dying before he did, and conditions were specified accordingly. Should his wife outlive him, the gift was not in prcesenti, but if the language employed is to be accorded its ordinary meaning, to become operative in the future, for this clause reads: “If my well beloved wife Dora Schrader shall live after me, then it is my further will that on the death of said Dora Schrader my well beloved son . . . shall become the sole, absolute and unqualified owner, on the condition hereinafter expressed, of the following described real premises.” Were this all, there might be room for the argument indulged by the majority and some of the authorities would be in point; but the testator’s intention that the gift should not be present is put beyond doubt by the wording of the condition annexed: “That before (not after) George Schrader *95shall become the sole, absolute and unqualified owner. . . . he shall pay to . . . Henry Schrader the sum of $500.” Could the testator in plainer terms have expressed his intention that before the gift should vest in George he must pay Henry? That such was his purpose is made clearer by the circumstance that later on he directed that in the other contingency of his wife dying before he did George should take the land on condition he pay Henry the amount named — a condition subsequent. "Why specify the two contingencies if the conditions were intended to be the same?
As stated in the majority opinion, the law favors the vesting of estates and avoids the abeyance thereof, or intestacy, as to any portion of the property whenever possible, and when a condition merely exacts the payment of a consideration it will be construed, if possible, as a condition subsequent rather than a condition precedent; but where the language of the instrument is clear and unambiguous, as in this will, and is incapable of any other construction than as á condition precedent, if accorded its ordinary and usual meaning, there is no room for the application of these rules; and the courts, instead of undertaking to apply, them and distribute the estate according to their notions, should acquiesce in the plain terms of the will and carry out the manifest intention of the testator. The majority undertake to build an argument on the theory that the payment by George was essential to equalize the distribution of decedent’s estate. No evidence was adduced; the cause having been submitted on the pleadings, in which no facts bearing thereon were admitted. We have no means of knowing the relative values of the gifts to the three sons, nor of the advancements previously made to any of them, and therefore are limited to determining the meaning of this clause of the will from the language employed. We have no reason for saying that the consequences the majority insist on obviating were not those decedent had in mind. Surely the cutting off of a daughter-in-law and a grandchild from participation in a decedent’s estate is not so unusual or un*96natural as to justify the inference that the language employed was intended to import a meaning exactly the opposite of that made use of; that in using the word “before” the testator in fact meant “after.”
Again, it is argued that, inasmuch as payment was to be made before George became the absolute and unqualified owner, this indicated an intention that he should become owner subject to the payment of the amount exacted to Henry. But the gift is described in other portions of the clause in the same fashion, and it is as such owner that he was to become only on the condition named. In other words, the only gift was the absolute and unqualified title, and the condition was annexed to this, and not to some lesser or qualified estate.
It will be noted that not a single authority cited in the above opinion is in point, save as illustrating the inclination of courts to construe the language of wills as creating conditions subsequent, whenever this may. be done without distorting the meaning of the English language. This may be made clearer by an examination of the facts in some of the decisions most favorable to the ruling of the majority. In Pearcy v. Greenwell, 80 Ky. 616, the will provided that “all of my land on the west side of the road bé equally divided between John Greenwell and Ralph Greenwell upon condition that they pay $700 to my wife in one and two years, one-half each year, to be her absolute property, and $500 to the elder of this district of the Methodist Church, to be by him paid over to Kentucky Conference for the benefit of superannuated preachers; also that they give Jeremiah Smith a good horse, bridle and saddle.” Manifestly this was a condition subsequent, and the statement of Hargis, C. J., 'that “the general rule is, where there is no devise or limitation over to take effect upon failure to perform a condition annexed to the devise, the failure to perform the condition, though precedent, does not forfeit the devise, such condition being construed a condition subsequent, ’ ’ was pure dicta, and *97a somewhat exhaustive search has discovered no authority sustaining the proposition.
In Maddox v. Maddox, 52 Va. 804, the condition was held to be void as in restraint of marriage, and against public policy as enjoining a named belief.
In Cunningham, v. Parker, 146 N. Y. 29, (40 N. E. 635, 48 Am. St. Rep. 765) the devise was “on the condition and proviso that he [devisee] pay to the above-named, legatees respectively the legacies herein given within the period of four years after my decease, without interest, and the real estate so devised to my son Alexander Whitford is charged with the payment of the same.” Upon testator’s death, the devisee went into possession, and subsequently died without discharging the legacies, and the issue was whether title had passed to him, and, of course, the court held that it had, as this was in no wise inconsistent with the language of the.will.
In Hanna’s Appeal, 31 Pa. 53, the devises were “upon condition that they [devisees] pay to my executors, within four years after my decease, such sum as from the valuation of said tracts of land, with due regard to proportion, it shall be necessary to raise out of said tracts in order to pay the legacies heretofore directed to be paid by my executors, and if he fail to pay such sum on demand, I direct my executors to make sale of so much of said lands as may be necessary to raise the just proportion of said fund, and make a sufficient conveyance to the purchaser.” The court held that title vested in the several devisees; that the legacies were mere liens; and that the power conferred on the executor related solely to the remedy. These and like cases cited in the majority opinion furnish little or no support to the conclusion reached.
I cannot escape the conclusion that the recital in the will is not that of a present gift, but of a gift “on the death of the said Dora Schrader. ’ ’ It is then “that George Schrader is to become sole, absolute and unqualified owner.” This, however, is “on condition hereinafter expressed,” and the *98expressed condition is “that before George Schrader shall become the sole, absolute unqualified owner . . . he shall pay to . . . Henry Schrader the sum of five hundred dollars.” The testator having by apt words unequivocally indicated an intention that the payment be exacted before the vesting of the gift, this court, regardless of its own notions, of the propriety of annexing such a condition, ought to construe the will accordingly. Were this done, there would be no escape, as I think, from the conclusion that the payment was intended as a condition precedent to the vesting of title.
I am of opinion that the ruling of the district court-in decreeing , that title under the will never vested in George Schrader or his heirs should be affirmed.
Deemer, J., concurs in this dissent.