The opinion
On Petition eor Rehearing.
( 236 Pac. 505 .)
For the motion:
Messrs. Welsh & Welsh
and
Stephen J. Chadwick,
for petitioner W. H. Abel.
Of counsel:
Messrs. Harris, Smith & Bryson
and
Mr. Charles A. Hardy; Mr. Jay Boioerman,
for petitioners Hilda Williams and Ben Hur Lampman.
No appearance
contra.
BROWN, J.
— W. H. Abel, Hilda Williams and Ben Hur Lampman have filed a petition for a rehearing of the above cause.
This is a partition suit involving the construction of the will of Richard W. Williams, deceased, in so far as it pertains to the title of the property sought by the suit to be divided. For a statement of the pertinent facts and our conclusions therefrom, see our opinion filed February 24, 1925, reported in 114 Or. 610 ( 233 Pac. 852 ), wherein we held that the testator, by his will, in language that ought not to be misunderstood, devised to Richard C. Williams and Claire S. Williams one half of the real property involved in this suit, “subject, however, to such disposition as I may hereafter make of any portion thereof.”
Clearly, the testator’s disposition of that property is consistent with a defeasible fee in Claire S. Williams, as provided by subsequent clause in the will.
In their brief in support of their petition for rehearing the petitioners say, among other things:
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“The opinion and decision of the court does not make it clear
* *
that the language used in clauses Six and Seven will have no application to the real property devised under the second clause of the will. While this property is not included in the subject-matter of the suit, expressions used in the opinion are of such general character that it might be claimed that a rule of property is established by the decision as the same now stands; it is therefore important that any final decision made in this case should expressly exclude any intention of construing the second clause of the will so as to create any impression that the fee thereby devised is in any way debased.”
We had no intention of determining the title to any real property other than that described in the complaint. Neither did we intend to intimate whether Claire S. Williams took a fee simple, or a debased, title to the property described in Section 2 of the will.
We have studied the record with care and are satis-.fied that we have construed the will according to the expressed intention of Richard W. Williams, deceased. The petition for rehearing will be denied.
Rehearing Denied.