(dissenting).
I concur with the Court’s finding that Helen Jones’ interest vested upon the testator’s death; I respectfully dissent from the Court’s construction of the second paragraph in Part Four of the will as being a limitation upon the unqualified devise to Helen Jones in the first paragraph of Part Four of the will.
In effect as the Court holds, Helen Jones received under the testator’s will a vested remainder subject to complete defeasance. However, the second paragraph of Part Four of the testator’s will, quoted following, should not be construed to determine the heirs at the time of the life tenant’s death:
“If any legatee or devisee named in subdivisions (a) to (h), inclusive, be deceased, then the bequest or devise shall not lapse, but such interest shall be vested in the heirs of such descendant in accordance with the laws of descent and distribution.”
This clause should rather be construed as simply to prevent the lapse of a bequest to any said legatee or devisee who might pre-decease the testator. In fact this paragraph itself states its own purpose, that the “bequest or devise shall not lapse * * This is necessary as the named remainder-men are not descendants, but collateral heirs, and if deceased at the time of the testator’s death are not protected by the anti-lapse statute, Vernon’s Tex.Prob.Ann. § 68 (1955). This lapse is no longer a *134danger after the death of the testator, as the right to take upon the life tenant’s death has vested with the testator’s death. The preface “If any legatee or devisee * * * be deceased” therefore must refer to the instance of time at the testator’s death to be functional. In summary, if this paragraph had not been included in the will at all, the bequest to Helen Jones would have lapsed if she had predeceased the testator. But if Helen Jones had died after the testator, and before the life tenant, there would have been no lapse. Since the paragraph by hs own terms is to prevent lapse, it seems sensible to say it applies only where that end is necessary, that is, before the death of the testator.
I further do not agree with the Court’s statement that the testator thought he was granting his wife, Genevieve, a full title. It is more likely he knew he was not granting her a full title or a fee simple title, as shown by his carefulness in making it plain that the remaindermen were not to interfere with the management or disposition of the estate during her life. He specifically mentions this desire to protect his wife three times in the will, concluding Part Five of the will with the sentence:
“This provision, however, shall never be construed to interfere in any manner with the free and unhampered right of the said Genevieve G. Boisdorf to handle all of the property of my estate during her lifetime in any manner by her desired.” [Emphasis ours.]
The Court bases its construction upon an interpretation by this Court of a paragraph explicitly operating “upon the death of” the life tenant in Caples v. Ward, 107 Tex. 341, 179 S.W. 856 (1915). There the Court declared the wife to have an estate for life, with the power of disposition annexed, and the remainderman’s estate to be vested subject to this power of disposition and de-feasance upon death before the life tenant. The here relevant provision of the Copies will read:
“Seventh. It is my desire that upon the death of my said wife and the termination of the life estate in her hereby created, that all of my estate * * * shall be divided equally between all of my above-named five children then living, or their descendants, share and share alike; that is to say such descendants of any deceased child shall have that portion to which their ancestor, if living, would have been entitled to.” 179 S.W. 856, 857.
As this Court then stated, this provision operated to create a vested remainder, “ * * * defeasible on a condition subsequent, [the child’s] death before the expiration of the life estate, his share, in such event, passing to his descendants.” 179 S.W. 856, 858. There is simply no such provision in the will to be construed in the case at bar; even taking the second paragraph of Part Four as ambiguous in operation, the construction against limitation is to be preferred. Mayfield v. Russell, 297 S.W. 915 (Tex.Civ.App.-Waco 1927, writ ref’d). Page, On Wills, Vol. 3, Sec. 1279 (1941) lays down the proper rule of construction :
“As between two reasonable constructions of a will, that which makes a gift absolute rather than conditional, will be preferred * * * conditions which tend to defeat estates are construed strictly * * * [supra, Sec. 1280].”
The second paragraph of Part Four makes no mention of events at the time of the life tenant’s death whatsoever, and should be applied only to those legatees not living at the time of the testator’s death. Under this interpretation there is no de-feasance because of death before the life tenant’s death; the only defeasible condition after the testator’s death is the possible exhaustion of the estate by the life tenant.
I would construe the testator’s will as vesting in Helen Jones a remainder interest upon the death of the testator, and the second paragraph of Part Four as only oper*135ating to prevent lapse at the time of the testator’s death.
With such an interpretation, the judgments of the trial court and the Court of Civil Appeals should be reversed, and judgment rendered for the petitioner.
SMITH, J., joins in this dissent.