dissenting in part.
Buchanan, J., dissenting in part:
In Clause 4 the testator gave the remainder of his estate to his daughter Violet Merritt Johnson, “but if she should die without heir,” then to the children of William H. Johnson and Ruth Johnson.
The devise to Violet Merritt Johnson, as the court says in the majority opinion, was a defeasible fee; i.e., a fee subject to be defeated by the happening of a condition subsequent. The condition subsequent expressed in the will was her dying “without heir.” If she died leaving an heir her estate in fee was not defeated. The controlling question then is, did she die “without heir”?
The statutes alone determine who are the heirs of a person dying. McFadden v. McNorton, 193 Va. 455, 461, 69 S. E. 2d 445, 449. One of these statutes is § 63-357, which declares that an adopted child is “to all intents and purposes” the child of the adopter, “entitled to all the rights and privileges, * * of a child of such person or persons bom in lawful wedlock.”
Section 63-358 is another of these statutes. It declares that for the purpose of descent and distribution a legally adopted child shall inherit “from and through” the adopting parent, but not from his *843natural parents, and if he dies intestate without issue surviving, his property goes to those who would have taken had he been the natural child of the adopting parent.
“* * Considered in connection with the broad and comprehensive language employed, they [the adoption statutes] emphasize the specific intention to put an adopted child on the same footing as the natural child, thus giving him the right to take by representation * * what the natural child would have taken, had there been one, upon the death of his father intestate.” McFadden v. McNorton, supra, 193 Va. at 462, 69 S. E. 2d at 450.
The primary question here, as I see it, is not as the opinion states, whether the testator intended by the language “if she should die without heir” to include an adopted child. The primary question is what kind of estate the testator gave this daughter by these words. Unquestionably he gave her an estate in fee which would be terminated, however, if she died without an heir. She did not die without an heir because the adopted son was her heir. He was, says the statute, “to all intents and purposes” her child, entitled to inherit from her exactly as her natural child would do. The testator did not say that the condition which would defeat his daughter’s estate was that she die without an heir of her body. He said, “if she should die without heir.” The court, not the testator, now adds “of her body.” If he had said that, he would have made a different condition, one that would have been effective to transmit the estate as the court now says it shall go. But we should construe the will as written. “The true inquiry is not what the testator meant to express, but what the words he has used do express.” 20 Mich. Jur., Wills, § 81, p. 252. We are not entitled to add words to those used by the testator, however preferable we may consider the result.
I would reverse the decree on this feature of the case, and affirm it on the question of curtesy.
Mr. Justice Spratley joins in this dissent.