dissenting: Despite the many rules and guidelines quoted in the opinion for the court with which I fully agree, the fact remains that probably no two wills were ever written in precisely the same language. Neither is it likely that any two testators would die under the same circumstances with respect to their estates, families, or other objects of their bounty. Thus, even though general rules and guidelines are to be recognized, the fact remains that each will must be construed by its own terms and with regard to the circumstances under which it was written. This simple fact is recognized in Giese v. Smith, 195 Kan. 607, 408 P. 2d 687, wherein we said:
“. . . [Llittle aid can be derived from other judicial decisions and opinions unless the words of the two wills are substantially identical.” (p. 610.)
The intention of the testatrix is easily gleaned from a reading of her will and codicil. The primary objects of her bounty were Anna Mae Staudenmaier and Theodore D. Ricklefs and then- respective children. The children were designated beneficiaries in the will. The testatrix intended that Anna Mae and Theodore receive legacies generally equal in natmre and further that her estate be divided one-half to her relatives and one-half to her husband’s. In her will she specifically provided for the lapse of residuary legacies. Likewise, in the third paragraph of her codicil she again directed that no bequest made in her will be paid unless the named beneficiary survived her. It is significant that in the preceding paragraph the devise is made to Theodore “to be his absolutely” without mention of survivorship. The words and phrases read together in the light of what was said and what was omitted clearly manifest the intention and testamentary scheme of testatrix; i. e., substantial bequests, approximately equal in value, to Anna Mae and Theodore, neither to lapse, the remainder after specific bequests divided in approximately equal portions between the surviving Staudenmaiers on the one hand and the Ricklefs on the other. The specific bequests to Anna Mae and Theodore were made in identical language, each devise ending in the phrase “to be his [hers] absolutely.” I am unable to presume the testatrix knew that under the law Anna Mae’s devise would not lapse, but Theodore’s would. The presumption is much stronger that had she intended either or both to lapse she would have said so as she did with respect to those bequests which she intended to lapse. The addition of the phrase “to be his absolutely” was unnecessary in composing a simple devise, but it, like *722all other portions of a will and codicil, must be given effect if possible. Admittedly, the phrase cannot be construed to be a substitution — the usual method employed to expressly provide against lapsing. The effect to be given the phrase is that it expresses an intention to give the devises to which it was attached a higher quality than that of all of the other bequests and devises from which it was omitted. Furthermore, to hold otherwise would result in a substantial part of her estate falling into the residue contrary to her intention that the residuary legatees would receive only a nominal portion of the estate.
As noted in the opinion for the court, the general rule is stated in 57 Am. Jur., Wills, § 1428, p. 958: “While it is everywhere recognized that the question whether a legacy or devise shall lapse or not is subject to the testatorial intention. . .
It is apparent from the language in the first codicil the testator directed its preparation for two purposes. First, to devise a farm to Anna Mae Staudenmaier and a farm to Theodore D. Ricklefs; and second, to provide that if any of the named beneficiaries in her first will died before her death the bequest would lapse and be paid to those named beneficiaries who survived her. Since she was concerned with those beneficiaries who died and those who might die before her death it is not realistic to say she did not have in mind the possibility that Theodore D. Ricklefs might not survive her. The language employed in the third paragraph of her codicil makes the omission of the imposition of survivorship on the devise to Theodore D. Ricklefs a glaring expression of intention. An accumulation of all the language used by the testatrix and giving each word and phrase its proper contribution and significance to the total, manifests an intention that the requirement of survivorship was not to be imposed upon the devise to Theodore D. Ricklefs.
The judgment of the trial court that the property passed to the children of Theodore D. Ricklefs is correct. We do not find any statute specifically controlling the descent of property under the facts disclosed in this case. We do find, however, that the holding of the trial court is in harmony with the statutes of this state and such case law as exists relating to substituted beneficiaries.
K. S. A. 1972 Supp. 59-615 provides for issue to take when there is prior death of an adopted child or blood relative within the sixth degree. Although Theodore D. Ricklefs is not an adopted child or blood relative within the sixth degree, which would prevent the lapse of his devise according to statute, it is my opinion that the *723devise did not lapse under a proper construction of the will and codicil for the reasons hereinbefore stated. Since the legislature has spoken on the subject of substituted beneficiaries of a devise which does not lapse, we see no reason why the statutory expression should not be applied to this will and codicil. Such a finding is also consistent with K. S. A. 59-508 which provides the issue of a previously deceased child of an intestate shall take to the exclusion of the spouse of the previously deceased child. Such a holding would also be in harmony with our statute, now repealed (Gen. Stat. 1915, §11811) and the case law construing that statute. (Corbett v. Skaggs, 111 Kan. 380, 207 Pac. 819.)
The reasoning supporting this conclusion is that these children are substituted beneficiaries or heirs in the sense that the prior decedent was the primary beneficiary and because of his prior death his issue are substituted. The rights of issue of a prior deceased beneficiary or heir are acquired not because such person is a distributee or heir-at-law of a deceased person, but because he or she stands in the place of the prior deceased person and represents him as a blood descendant. (26A C. J. S., Descent & Distribution, § 23, p. 564.)
The judgment of the trial court should be affirmed.
Schroeder and Kaul, J. J., join in the foregoing dissent.