I concur in the result reached by the majority in this case upon the ground that the plaintiff appellee acquired no title to the tract in controversy under the instrument executed by Townsend Nichols May 19, 1926. I am of the opinion that the devise to appellee of the remainder of the land is not, in legal effect, a devise of the residue of the testator's estate. The petition should, in my opinion, have been dismissed, on the ground, as stated above, that appellee was without title to the premises. Upon whether the doctrine of selection, approved by the majority, should be adopted in this state, I express no opinion. I am, however, satisfied that it is not properly invoked in this case, upon any possible construction of the instrument, a proper interpretation of the issues, or due consideration of the facts. Appellant has neither claimed the right of selection in any issues tendered by him or under the instrument, nor has he, intentionally or otherwise, made an election. The result of the majority holding would seem to make possible *Page 963 the substantial carrying out of the intention of the testator. My disagreement is with the premises.