delivered the opinion of the court.
On September 14, 1836, John 0. Miller, owning considerable real and personal estate in the State of Kentucky, where he *26resided, and also a large real estate in Washington county, tliis state, of which he afterwards died seized, and which is the subject of controversy in this suit, made his holographic will, the parts of which material to this controversy are as follows: “First. It is my wish that all my just debts be paid. Second. I give to my wife $20,000, etc. Third. I give the remainder of my estate to my daughter, Agnes F. Miller, during her life, and, after her death, to her children. Should she, however, die without child or children, I give at her death to my brother, Harvey Miller. Should Agnes die leaving one child, it is to inherit as if there were children.”
On the 2d day of May, 1840, .said John O. Miller executed a codicil to said will, attested by two witnesses only, which was, at said date, insufficient to pass real estate in Mississippi, the material parts of which are as follows:
'“I, John O. Miller, do make this a codicil to a will made and written with my own hand prior to the birth of my daughter, Laura — that is to say, I give, to my daughter, Laura, the' one-fourth part of the net proceeds or profits of my estate after paying my debts, until she az*rives at the age of sixteen years, and after that, to hold an equal portion of my estate, real and personal, with my daughter, Agnes, and to hold under the same restrictions and regulations, and in every way as prescribed for Agnes in the will here alluded to. In the event of the death of my daughter, Laura, without a child living, then my daughter, Agnes, is to inherit all the estate left by me to Laura, as prescribed in the foregoing wilting, or, in other words, Agnes is to inherit as prescribed in the original will.”
John C. Miller died on the 5th day of May, 1840; Agnes died on the lYth of September, 1893, without having had any children.
The appellees claim the real estate herein involved by mesne conveyances from.Harvey Miller, devisee in the third clause of John C. Miller’s will, who, in 1860, conveyed his contingent interest in the premises to Warren, and who died in the life*27time of Agnes. Tbe appellants claim tbe premises as tbe lieirs at law of Jobn 0. Miller, on tbe ground or contention that tbe devise to Harvey Miller was personal only, or that tbe devise was upon the contingency of bis surviving Agnes.
The devise by Jobn 0. Miller of bis estate to Harvey Miller, after the death of his daughter, Agnes, without children, is not, in our opinion, made upon tbe contingency of bis surviving Agnes, for, if such was bis intention, be has not clearly expressed such purpose by the words be has employed, and as tbe testator has not, by plain words, expressed such intention, we cannot, by construction, import into bis will such- words as would clearly indicate such intent, for this would be to make a will for him, and not to construe one made by him. The intention of tbe testator is tbe polar star for inquiry in tbe interpretation of bis will, but such intention must be collected from tbe words which be has employed; tbe question is not what be wished, but what he has said. Broom’s Leg. Max., *555.
Lord Wansleydale, in Sluigsby v. Granizer, 7 H. L. Cas., 284, said: “Our duty is to ascertain not what tbe testator may be supposed to have intended, but tbe meaning of tbe words be has used, and these we must construe according to their ordinary and grammatical sense, unless some obvious absurdity, or some repugnance or inconsistency with tbe declared intentions of tbe writer, to be collected from tbe whole instrument, followed from it, or, it may be added, some inconsistency with tbe subject on which the will is meant to operate, and that the sense migbt.be modified so as to avoid those consequences, but no further.”
At tbe maldng and consrunmation of this will the statute of this state provided: “Every estate.in lands devised to any person, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple, if a less estate be not limited by express words, or do not appear to have been devised,” and, under this statute, tbe *28devise to Harvey Miller must be construed to read as a devise to Harvey Miller and bis beirs in fee simple, and if sucli bad been tbe language of the devise,' it would be clear that it was not on the contingency of Harvey Miller surviving Agnes.
If tbe codicil of tbe will of Jobn C. Miller bad been attested by three witnesses, so as to pass real estate, be would have devised a title to bis daughter, Laura, prior to that of bis brother, Harvey Miller; but tbe intention of tbe testator failed of effect because tbe codicil was not attested by three witnesses. Courts, however, can no more supply defects in tbe execution of a will or codicil than they can add to or diminish tbe words of a will.
Affirmed.