dissenting
In my opinion, the majority opinion herein rather than construing the will of Alma Hopkins emasculates it by in effect striking the last portion of the second paragraph. This we cannot do. It is our duty to ascertain a testator’s intent and to give effect to that intent if it can legally be done. To do this, we must try to give effect to every part and portion of the will. We said in Elrod v. Heirs, Devisees, etc., 156 Neb. 269, 55 N. W. 2d 673: “Each word and provision of the conveyance must be given such significance as will make effective the intention of the parties.”
We have had a statute on the construction of conveyances since 1866. Section 76-205, R. R. S. 1943, provides: “In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true intent of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law.” This statute is applicable to the construction of wills. In re Estate of Zimmerman, 122 Neb. 812, 241 N. W. 553.
As early as 1899, the law on the subject of will construction was well settled. In Weller v. Noffsinger, 57 Neb. 455, 77 N. W. 1075, this court enunciated the rules by which courts should ascertain and give effect to the intention of the testator, in the following language: “No rule of law is better settled, or more in accord with good sense, than that which requires the intention of the testator to be ascertained from a liberal interpretation and comprehensive view of all the provisions of the will. No particular words, no conventional forms of expression, are necessary to enable one to make an effective testamentary disposition of his property. The court, *458without much regard to canons of construction, will place itself in the position of the testator, ascertain his will, and, if lawful, enforce it.”
The language in question herein is as follows: “SECOND: All the rest, residue and remainder of my property, both real and personal, wheresoever situated, including after-acquired property, I hereby give, devise and bequeath to NELLIE HOPKINS of Auburn, Nebraska; LUCY B. HOPKINS, of Auburn, Nebraska; RUTH NIEMANN of Auburn, Nebraska, and DEAN NIEMANN of Auburn, Nebraska, equally, share and share alike, and to their heirs, devisees and legatees as set forth in their Last Wills and Testaments, to be theirs absolutely, in fee simple, without condition or limitation.” (Italics supplied.) It seems to me apparent that it was the intention of the testator to give the property equally to the four persons designated, but that in the event any of them predeceased her that person’s portion, if so provided by the deceased’s will, should pass to the heirs, devisees, and legatees specifically designated in that will. In other words, testator was attempting to divide her property equally between the four persons designated, only one of whom was related to her by blood, or their successors in interest if any of the four being deceased should so direct in a last will and testament. This is the only possible construction which gives effect or meaning to the words used.
It is axiomatic that a will speaks only from the time of the death of the testator. A person has no devisees or legatees until his will is admitted to probate after his death. The testator herein was attempting to maintain equality and to prevent lapsing if any of the four beneficiaries predeceased her, and she gave them the right to designate who should have that individual’s share in her property in the event such contingency occurred;
We cannot overlook the following language from the fourth paragraph in construing this will: “As I am *459aware of the ruinous consequences of litigation concerning the probate of Wills, if any devisee, legatee or beneficiary under this, my Last Will and Testament, or any person claiming under or through any devisee, legatee or beneficiary, * * (Italics supplied.) This part could only be effective if the devisees or legatees are substituted for those of the four beneficiaries who predeceased the testator. This indicates to me that the testator contemplated the possibility that one or more of the four beneficiaries might predecease her, and that person would exercise the right to designate a successor in his or her last will and testament. No one would be claiming under or through a devisee, legatee, or beneficiary unless one of the four had predeceased her.
In this instance, only one of the four was a blood relative of the deceased and could conceivably be within the provisions of the antilapse statute, section 30-228.03, R. R. S'. 1943. As to the others, without some specific provision the gift would lapse because the contingency testator was seeking to cover what actually happened. Lucy B. Hopkins, one of the four, predeceased the testator, but she availed herself of the privilege of providing in her own last will and testament for the descent of the property testator intended her to have by the following provision: “TENTH: All inheritances which I may be entitled to at the date of my death by reason of the provisions of the Last Will and Testament of any person or persons, or over which I have any power of appointment, I hereby declare and designate Willis B. Zacharias, my Nephew, to be my sole heir for the purpose of receiving such inheritance, and if I have any power of appointment, I hereby appoint said legacy or device (devise) to the said Willis B. Zacharias, to be his absolutely and forever, without condition or limitation, and to his heirs by right of representation, per stirpes.”
Another indication of the intention of the testator herein is the fact that in the third paragraph of her will *460she expressly excludes every other person than those specifically covered in the second paragraph. She does this by mentioning near relatives by name and including the others as “and all of my other heirs and relatives, * *
A patent ambiguity in a will, if this may be considered such, must be resolved by interpretation of the intention of the testator as found within the four corners of the will. Gaughen v. Gaughen, 172 Neb. 740, 112 N. W. 2d 285.
The majority opinion is confusing the issue here by talking about the beneficiaries acquiring a fee simple estate and a lesser estate in the same property, the lesser estate in this instance being a power of appointment, or, more accurately, a power appendant on the theory of the opinion. There is a power of appointment but definitely no power appendant herein because, as suggested heretofore, no interest of any nature is acquired until the death of the testator. The devisees received a fee simple estate if they survived the testator, but until the will became effective by the death of the testator, they had only the right to cover the contingency of their own prior death. What the testator in this instance was trying to do was to permit her devisees and legatees to provide substitute devisees and legatees in case of their death. It is clear that testator did not intend that the gift to Lucy Hopkins or the others be dependent upon their surviving her, so she gave them a testamentary power of disposition by the words which the majority opinion herein ignores. She left it entirely to those named to exercise this right if they desired. It is very evident that Alma Hopkins was familiar with the terms of the last will and testament of the testator and desired to avail herself of the right of providing who should receive the interest she would receive if she survived the testator. The antilapse statute would not apply because Lucy Hopkins was not related to the deceased, so some other method was neces*461sary. The method employed herein, as I construe it, would prevent lapse and was undoubtedly intended to do so.
As stated in 57 Am. Jur., Wills, § 1429, p. 959: “There is no doubt that a testator can prevent the lapse of a legacy by providing for the substitution of another beneficiary in case the original beneficiary predeceases the testator.”
In Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299, this; court said: “A devise to one in fee, and in the event of his death to another in fee, refers to death during the testator’s life, because the event cannot be said to be contingent, and it seems more compatible with reason to say that the testator by the use of the words was providing a substitute for the first taker should that devisee not survive the testator.”
Referring to the italicized portion of the second paragraph of testator’s will set out heretofore, if the word “and” were read as “or,” there would be absolutely nothing for construction herein. In this respect I call attention to the case of Ledwith v. Bankers Life Ins. Co., 156 Neb. 107, 54 N. W. 2d 409, in which we said: “The laxity in the use of the conjunctive ‘and’ and the disjunctive ‘or’ is so frequent that the doctrine has been accepted that they are interchangeable and that one may be substituted for the other if to do so is necessary to give effect to any part of a statute or to effectuate the intention of the Legislature. State ex rel. City of Grand Island v. Union P. R. R. Co., 152 Neb. 772, 42 N. W. 2d 867; Carlsen v. State, 127 Neb. 11, 254 N. W. 744.”
In Roberts v. Roberts, 147 Neb. 494, 23 N. W. 2d 774, this court in effect held that the intent of the testator would control rather than technical language used in a particular clause of a will, and specifically held the word “if” could be construed to mean “when” in order to advance the apparent intent of the testator. Here it is obvious that there could not be the slightest question if the word “and” were construed to mean “or,” al*462though I do not think we need to do so. I believe the intent of the testator is clear.