The opinion
POPE, Justice,
dissenting.
I respectfully dissent. The testatrix first made it clear that she wanted her debts paid. She next made it clear that she left “all of my property and interests of every kind and character and from what-ever source derived to my sister, Laura Freeland *682 . This expression of intent was to leave “all of my property,” “every kind and character,” and “from what-ever source” to one named person. She then stated what she wanted done with her estate if Laura Freeland was deceased.
Since Laura Freeland survived the testatrix, any ambiguity in the subsequent portions of the will become immaterial, because Laura Freeland got it all. The majority reads out of the will the intent of the testatrix concerning her estate if her sister Laura predeceased her. Surely the testatrix did not intend to leave to Laura Free-land her property if she had already predeceased her. The alternative is that she intended leaving all to Laura Freeland, but “if deceased,” and only in that event, to the others. To read the will any other way is to read the words, “if deceased,” out of the will. The same words were used in the fourth paragraph with the same meaning and for the same purpose. She stated:
“Laura Freeland, if deceased, to Ruth Gee $2,000, — ” and ten other named persons with specified devises or bequests. It is only when we look at what the testatrix intended if Laura Freeland predeceased her that we find any ambiguity. We need not ever reach that ambiguity, because the condition never occurred. Mrs. Freeland not having yet died, received all the property upon the death of the testatrix.
The majority opinion .invites living persons to make a new will for the deceased testatrix. It has read the will in a way that defeats the intent of the testatrix, that defeats the first taker, that finds the words of the will from the intent rather than the intent from the words of the will, that deletes and ignores the words “if deceased” which are words of a condition which did not happen, and that creates rather than avoids an ambiguity.
I would affirm the judgment of the trial court.
McGEE, J., joins in this dissent.