dissenting: If I could bring myself to agree with the conclusion adopted by the majority of the court in the foregoing opinion, I have encountered but one judicial expression in which I could voice my approval, and that is contained in the special concurring opinion of Berry, L. J., in Jackson v. Hosie, 27 L. R. Ir. 450, wherein the learned jurist said: “I am adverse to making wills for people and as a general rule I think it is much better they should make their wills for themselves. However, in the present case, as I believe we are making the testator a far better will than he made for himself, I heartily concur.” Indeed, I would go further than the Irish jurist did, and say that I think we have made not only a better will than the testator made for himself, but also the will which he ought to have made.
I am unable to join in the construction given to the will in question by the majority opinion, and shall state the reasons for my dissent as briefly as the case will permit.
As stated in the majority opinion, this matter was before the court on a former appeal (68 Mont. 92, 216 Pac. 1108), in which the will had been construed by Judge W. H. Poorman who had held that it made disposition of personal property only, but the cause was reversed for the reason that the procedure taken had not conferred jurisdiction upon the court to construe the will. When the matter went back to the district court, the proper procedural method was invoked and the ease was heard before Judge A. J. Horsky, who construed the will the same as Judge Poorman had; that is, he held that by its terms it only passed title to the personal property and left the real estate to descend to the heirs of the deceased under *281the law of succession, and this appeal is prosecuted from the decree entered in accordance with this determination.
The only question presented for decision is: Did the testator by the words which he employed in his will manifest an intention to dispose of his real estate?
At the hearing in the district court certain oral testimony was introduced in an effort to aid the court in its determination by showing the circumstances under which the will was executed. From this testimony it appeared that the testator was a man of wide and varied business experience, far above the average in ability and attainment; that his parents were old and infirm, one being blind and the other bedridden; that in years gone by he had assisted them so as to make them comfortable, and that in recent years he had contributed nothing to their support; that they were possessed of some estate, the extent and value of which were not known; that the personal property which had been or would be distributed to the widow under the will, after all debts and the expenses of administration had been paid, was of the value of $22,831.94, and that the appraised value of the real estate was $14,550. Confessedly this testimony is of very little value to the court in solving the problem presented. True it is that certain oral declarations alleged to have been made by the testator at the time he signed the will and subsequent thereto were admitted, over objection, which, if they could be used, might be of assistance; but we are precluded from considering them by the express provisions of section 7017, Revised Codes of 1921. The diligence of counsel, as evidenced by their elaborate and carefully prepared briefs, has failed to furnish us with any case where a will of like or similar wording has been construed, and a somewhat extended independent research has failed to disclose any. Almost innumerable cases involving the construction of wills are found in the books, but, after all is said, they lead back to the cardinal rule of testamentary construction which is crystallized *282in section 7016, Revised Codes of 1921, that “a will is to be construed according to the intention of the testator.”
As was said by Chief Justice Marshall in the early case of Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322: “The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law.”
In determining the intent of the testator we are limited to a consideration of the will as we find it. It is the intention -which the testator expressed in the words of the will itself which controls. The court cannot make a will to conform to what it may think the testator intended by indulging in conjecture or probabilities as to what his intentions were, but which he failed to express. (In re Walkerly’s Estate, 108 Cal. 627, 49 Am. St. Rep. 97, 41 Pac. 772; In re Wilson’s Estate, 184 Cal. 63, 193 Pac. 581; In re Sowash’s Estate, 62 Cal. App. 512, 217 Pac. 123; In re McKay’s Estate, 42 Cal. App. 361, 183 Pac. 574.) In the case of Hunter v. Miller, 109 Neb. 219, 190 N. W. 583, the court declared that it is the intention which the testator expresses in his will, either, by its terms or by necessary implication, that controls, and not merely what the testator may have had in his mind nor what the court may believe he would have done had he completed what appears to have been an incomplete disposition of his property. <
In construing a will the object is to ascertain not the intention of the testator simply, but the intention which the will itself either expresses or by necessary implication declares. (In re Trevor’s Will, 120 Misc. Rep. 22, 197 N. Y. Supp. 719.)
In construing a will it is not the province of the court to consider what the testator possibly intended, but only what intention was expressed in the language used in the will. (In re Joyce’s Estate, 273 Pa. 404, 117 Atl. 90.)
With the foregoing observations in mind we pass to a consideration of the wording of the -will. First, as to the property disposed of: The words, “goods” and “chattels” as defined by *283the lexicographers and .as ordinarily used, have reference only to personal property. The main contention of counsel for appellant, and which is adopted in the majority opinion, is that the word “effects” as used in this will is broad enough to carry real estate. This word in its -primary and ordinary meaning includes only personal estate, 'goods, movables and chattel property. It denotes property in a more extensive sense than “goods,” and includes all kinds of personal property, such as shares of capital stock, etc. (Bank v. Byram, 131 Ill. 92, 22 N. E. 842.) There does not appear to be any variation in the judicial definitions holding that this word standing alone in a will or other written instrument, unaided by reference to other words or terms contained therein, is restricted in its meaning to personal property only. An illustrative case is that of Andrews v. Applegate, 223 Ill. 535, 7 Ann. Cas. 126, 12 L. R. A. (n. s.) 661, 79 N. E. 176, wherein the will disposed of two tracts of land by description and then disposed of all personal property, money and “effects” of every description, and it was held that “effects” so used did not cover the testator’s homestead, which was otherwise not disposed of.
In support of its conclusion that the word “effects” as used in the will under consideration was broad enough to include both real and personal property, the opinion cites a number of cases to which attention is now directed:
In In re Stixrud’s Estate, 58 Wash. 339, Ann. Cas. 1912A, 850, 33 L. R. A. (n. s.) 632, 109 Pac. 343, it was held that the expression “goods and effects” as used in the treaty between the United States and Sweden, was broad enough to include both real and personal property. In arriving at this conclusion the court relied upon the reasoning of the supreme court of Illinois in Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454. The opinion in this latter case is very able and is particularly enlightening upon the matter which we are considering. The court calls attention to the fact that the treaty, as it appears *284in volume I of the United States Statutes at Large, is printed in both the French and English languages, and says: “Article VI of the treaty of 1783, as revived by the treaty of 1827, contains the following words: ‘The subjects of the contracting parties in the respective states, may freely dispose of their goods and effects either by testament, donation or otherwise,' in favor of such persons as they think proper; and their heirs in whatever place they shall reside, shall receive the succession even ah intestado, either in person or by their attorney, without having occasion to take out letters of naturalization. These inheritances, as well as the capitals and effects, which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called “droit de detraction,” on the part of the government of the two states respectively.’ ” It then points out that the French words appearing in the French copies of the treaty which correspond to the English words “gopds and effects” are “fonds et hiens,” and shows that in the French law the term “hiens” includes all kinds of property, both real and personal. The court, however, did not rest its opinion upon the above proposition, but proceeded to a consideration of the meaning of “effects” as used in connection with the other words of the Article,and says: “It cannot be doubted, that, in certain connections, the word ‘effects’ sometimes refers to both real and personal property. It is true that, as a general thing, the word ‘ effects, ’ when used in connection with the word ‘goods,’ means personal property, and not real property.” And further on, adverting to the general rules of construction and interpretation applied in determining the meaning of the word in wills and written instruments generally, -continues: “In interpreting wills, it is well settled that the word ‘effects’ will be construed as including land, where it can be collected from other parts of the will that such was the testator’s intention. In other words, where the context of a will shows, that it was the intention of the testator to dis*285pose of his realty, the courts have held that the word ‘effects’ is sufficient to include the real estate.”
The opinion then enters into a detailed discussion of the expressions: “ ‘Their heirs, in whatever place they shall reside, shall receive the succession even ah intestato,’ etc.; and ‘these inheritances '* * * shall be exempted from all duty,’ ” etc.' and says: “The words, ‘heirs,’ ‘succession,’ and ‘inheritances,’ as here used, are very significant words in determining the meaning to be given to the word ‘effects.’ ” Following this it was shown that these words refer to the descent of both real and personal property. In consideration of these circumstances the court concludes that branch of the discussion by saying: “It is evident, therefore, that the terms of the treaty were intended to include real estate as well as personalty, and that the word ‘effects’ was intended to have the broader meaning which includes both land and personalty.”
In University v. Miller, 14 N. C. 188, cited in Adams v. Akerlund, supra, the supreme court of North Carolina construed provisions of the treaty between the United States and the Netherlands similar to those in the treaty under consideration in the Aherlund Case, and held that the meaning of the word “effects” as used therein in connection with the words “heirs,” “inheritances,” and “succession” was broad enough to include real as well as personal property.
In Ruckle v. Grafflin, 86 Md. 627, 39 Atl. 624, the will contained numerous specific devises of both real and personal property, and the testatrix disposed of the remainder of her “effects” in a general residuary clause. The court in considering the whole of the will said: “It is thus seen that she applied the word [effects] indiscriminately to her real and personal [property of the] estate, designating both kinds of property as her effects.”
In Horton v. Garrison, 1 Tex. Civ. App. 31, 20 S. W. 773, a judgment was entered which directed that the plaintiff in the case should recover a certain sum from the testator’s *286estate and that execution should he levied upon the “effects” of the estate. Under an execution issued in the case certain real estate was levied upon and sold, and in holding that the word “effects,” as used in the judgment, included real estate, the court remarked that this word is usually held to include personal property only “but when we consider * * * that no distinction could properly have been made by the court rendering the judgment, between personal and real property of the estate, as both were equally subject to the debt, and that it was not necessary for the judgment to define what property should be levied upon, further than to indicate that it should be satisfied out of property belonging to the estate, * * * we cannot conclude that * * * more than this was intended. Its only purpose was to show that the assets of the estate, * * * were to be subjected.”
In 1 Alexander on Wills, 34, cited in the majority opinion, the text reads: “The word ‘effects’ may include real estate if from other expressions used in connection with the term it would appear that such was the intention of the testator.”
In Coffman’s Admr. v. Coffman, 131 Va. 456, 109 S. E. 454, the testator had made specific devises to three persons, and then by “a general and sweeping residuary clause” gave the balance of his effects to his wife, and the court after stating the general rule that this word means personal property only, held that in view of the specific devises and of the broad terms of the residuary clause it appeared the testator intended to include his real estate as well as his personal property by using the word “effects.”
It is thus observed that in each of the cases cited in the majority opinion upon this proposition there were words or expressions used in the will itself, or references made therein, which clearly indicated to the court the intent of the testator to enlarge the meaning of the word which he used, so as to make it include real estate as well as personal property; but no case is referred to, and none has come under my notice, in *287which, the word has been given the broader meaning so as to make it include real estate in the absence of some circumstances similar to those recited in the cases above referred to. These cases are very instructive and serve to establish the rule that the meaning of the word “effects” can be broadened so as to include real estate only by the use of other terms in connection with it which clearly evince that such was the intent. And in the instant case, if in connection with the words “goods, chattels and effects” there were other terms or expressions used which indicated an intent on the part of the testator to cover both the real and personal property, the above cases would be in point to sustain the court’s conclusion. But such terms and expressions are entirely absent from the will under consideration.
Considering that the property disposed of by the testator in this case was specifically mentioned in the will as “goods, chattels and effects,” -and leaving out all inferences and conjectures, it is entirely clear that the testator’s intent as expressed by him in the will, was to cover personal property only.
But it is insisted by counsel for appellant that the use of the verb “devise”,in connection with the verbs “give” and “bequeath” evinced an intention on the part of the testator to include real estate within the term “effects” by inferential, reference. The verb “devise” is defined in Webster’s International Dictionary as “to give by will; now used especially of real estate.” Such is the primary meaning of the word; but it may be given a different meaning if required by the context.
In Page on Wills, section 2, it is said: “Of the verbs used to denote the act of making a will, ‘devise’ is properly used of realty, and ‘bequeath’ of personalty. Of the nouns used to name the various forms of gifts, ‘devise’ is used of a gift of realty. ‘Legacy’ is used as a gift of a sum of money, and ‘bequest’ is used of a gift of ‘personalty’ in general. None of these words have so fixed a legal meaning, however, that a *288gift will fail because testator does not use the words descriptive of the gift or of the act of giving with technical accuracy.”
In Sehouler on Wills, section 513, page 641, we find this statement: “We may add that while a devise relates in strictness to lands and is distinguishable from what is bequeathed, the terms ‘devise and bequeath’ are often conveniently associated. But in furtherance of a testator’s intent, the words ‘bequeath’ and ‘devise’ may in any will be treated synonymously, if the context requires it; and the words ‘devise,’ ‘legacy,’ and ‘bequest’ may be applied indifferently to real or personal property.” (Oothout v. Rogers, 59 Hun, 97, 13 N. Y. Supp. 120.)
In Stroud’s Judicial Dictionary, after a brief history of the words “devise” and “bequeath” the author says: “It is still true that ‘devise’ and ‘bequeath’ may be used promiscuously and that if a testator ‘devise’ goods they will pass, and so he may ‘bequeath’ lands or houses; that is to say, where the property dealt with is clear the intention will not be defeated because the wrong verb is used.”
The description in the will of the property which the testator gave to his wife standing by itself is clear and unambiguous. It embraces personalty only. It was his “goods, chattels and effects.” Por us to say that by the use of the verb “devise” in making the disposition which he did, he intended to enlarge the meaning of the word “effects” so as to make it include real property, when that verb may be and frequently is used in wills to make disposition of personal property, would lead us into a realm of surmise and speculation which we are not permitted to enter.
Furthermore, it is not made to appear in the record before the court that the testator was the owner of any real estate .at the time the will in question was executed. In designating the things of which he made disposition in his will he used the words “goods” and “chattels” which refer to personal property only, and followed these with the word “effects,” which *289is a term of very general signification when applied to personal property. Confronted with these conditions it would seem that the doctrine of ejusdem generis would apply. As stated in State v. Williams, 2 Strob. (S. C.) 474, by application of the maxim ejusdem generis, which is only an illustration or application of the broader maxim noscitur a sociis, general and specific words which are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to the less general. (Endlich on Interpretation of Statutes, sec. 400.) Under this maxim it would seem that the general term “effects” should be limited in its meaning to the less general words with which it is associated, and thus would embrace personal property only.
In the majority opinion much stress is laid upon the presumption that a man who undertakes to make a will does not intend to die intestate as to any of his property. In connection with this, section 7025, Revised Codes of 1921, which provides: “Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy” — is cited. For reasons which will appear later, I do not consider that a discussion of either this presumption or this section is essential; but if it were it might be worth while to consider the effect which this section has «pon the presumption as to intestacy which had existed prior to the time of its incorporation into the law of this state in 1877. This section, as pointed out in the majority opinion, was apparently copied from Field’s Code, and in connection therewith, Mr. Field cited the case of Booth v. Booth, 4 Ves. Jr. Ch. Rep., at page 407, in which case there was involved the construction of a long and complicated will which made numerous specific devises and also contained a residuary clause. The majority opinion lifts a sentence bodily out of the middle of a paragraph and apparently undertakes to apply it to the facts of this case. If the authority cited is of any value for any purpose I think the quoted sentence *290should be read in connection with the preceding portion of the paragraph from which it was taken, so as to make the quotation complete, and it is as follows: “That there is a difference between a bequest of a legacy and a residue with reference to this point cannot be denied either upon principle or precedent. Every intendment is to be made against holding a man to die intestate who sits down to dispose of the residue of his property.” In the instant case we are dealing with a legacy and not a residue clause. Of course, where, as in the Booth Case, the instrument as a whole discloses that after making disposition of his whole estate the testator deliberately attached a general residuary clause it would be logical to conclude that he did not intend to die partially intestate.
Many cases can be cited to sustain this presumption, but all of them lead back to our primary rule that the intention of the testator must prevail and that this intent must be gathered from the words of the will itself. Speaking of this presumption in Gallagher v. McKeague, 125 Wis. 116, 110 Am. St. Rep. 821, 103 N. W. 233, Mr. Chief Justice Cassoday said: “But the intention to pass the whole estate must be expressed in some form. We find no case where the presumption against intestacy has prevailed when the language of the will, fairly construed, is insufficient to carry the whole estate.”
The majority opinion, however, overlooks another and equally potent presumption of law, to the effect that a testator will not be held to have disinherited an heir except where that conclusion is implied by the express provisions or by necessary implications from the provisions specially set forth in the will. (Hunter v. Miller, supra.)
Since the testator died without issue, and under the law of succession the respondents, his father and mother, would b'e entitled to receive one-half of any part of his estate as to which he died intestate, the construction of the will in the majority opinion results in disinheriting them by implication, and this is not permissible under the authorities. 'The rule deducible *291from such authorities is stated in 28 R. C. It., page 229, section 190, as follows: “The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly, either by express words or by necessary implication.”
It does not appear, however, that the two presumptions above adverted to are of any assistance in construing the will in question, since neither of them can prevail over the other. In Watson v. Martin, 228 Pa. 248, 20 Ann. Cas. 1288, 77 Atl. 450, the court said: “The rule that a testator is presumed to have intended not to die intestate as to any part of his estate is not of greater force than the rule that an heir is not to be disinherited except by express words or necessary implication.”
My conclusion in this ease is further strengthened and justified by the rules that, when a particular construction of a will casts property where the law would cast it, that is sufficient to turn the scale in favor of such construction, and that if it is uncertain and doubtful whether the testator intended to devise real estate the title of the heir, must prevail, which are sustained by many authorities, among which are Blaisdell v. Hight, 69 Me. 306, 31 Am. Rep. 278; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 451; Murdoch v. Bilderback, 125 Mich. 45, 83 N. W. 1007; In re Shumway’s Estate, 194 Mich. 245, L. R. A. 1918A, 578, 160 N. W. 595; Kilgore v. Kilgore, 127 Ind. 278, 26 N. R. 56; 28 R. C. L. 230; Canfield v. Gilbert, 3 Fast, 516 (525), vol. 102, Full Reprint, 694.
In my little journeys into that particular province of the great republic of letters which embraces the literature of the law of wills, I have become convinced of the truth of what Lord C:oke expressed long ago when he said “Wills and the construction of them do more perplex a man than any other learning.” I am convinced, however, that the construction placed upon the will under consideration is erroneous; that the words of the will itself, with the aid of such slight eireum*292stances as are disclosed in the record, do not warrant the conclusion that the testator expressed an intent to include both real and personal property by the use of the word “effects”; and that such conclusion can be drawn only by entering into the realm of speculation and conjecture. I think the judgment appealed from should be affirmed.
Rehearing denied May 8, 1924.