¶1 (dissenting). This will was considered in Steele v. Crute, 208 Ala. 2, 93 So. 694, and the necessary parties were indicated. It is evident that testatrix did not desire that any of her property go to Carter S. Crute, but that the same was given, as indicated, to the seven persons named.
¶2 Rules of construction of testamentary instruments need not be repeated here. Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Pearce v. Pearce, 199 Ala. 491, 74 So. 952; Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Jemison v. Brasher, 202 Ala. 578, 81 So. 80; Eowlkes v. Clay, 205 Ala. 523, 88 So. 651; Steele v. Crute, 208 Ala. 2, 93 So. 694; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565; Henderson v. Henderson, 210 Ala. 73, 97 So. 353.
¶3 The testamentary intention is the guiding star; and that intention is to be gathered from the whole instrument. The fact that such writings are not always artfully drawn has been taken into consideration in order that a right construction be given. Unless it be clearly apparent from the whole instrument, it should not be held that it was the intent of a testator or testatrix to create intestacy. Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493. And after a careful re-examination, we are impressed that it was the intent of the testatrix that the brother and sisters named take a fee by the will. That instrument shows with its first announcements and words of broad and appropriate disposition of real and piersonal property, and as to each class to effectuate complete devises and bequests ; that it disposes of the absolute interest in personal property is clearly indicated in section “third,” and from a consideration of the whole instrument the same construction will be adopted in regard to realty.
¶4 We should have observed at the outset that, at the time of filing of the bill, all of the devisees or legatees mentioned in the will had either died or married. The marriage of Lizzie Louise Watkins is treated as a valid marriage, within the meaning of the will, and is unaffected by the decree of annulment. The marriage referred to by Mrs. Watkins in her will was such as Lizzie had contracted. By the relation she had ceased to occupy and enjoy the property, as we shall see, as testatrix had intended. As to this, we may observe that it is the purpose and duty of the courts to ascertain the intention of the testatrix and construe the words employed accordingly. Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; 40 Cyc. p. 1396, § 2; 40 Cyc. pp. 1399, 1400, § E.
¶5 Adverting to the specific provisions of the instrument for construction, it will be noted that as to both realty and personalty the will speaks of a “final division,” as if that was provided for and took place by reason of the will.
“This could only be true, if a fee was given in realty and an absolute interest in personalty was bequeathed.”
¶6 The words, “till all of them marry or die,” refer to the period of “final division,” and not to the extent of the estate taken by the devisees. The second paragraph of section “second” refers to this date as a “final division,” at least, this is its effect by a fair construction of the paragraph.
¶7 The fee thus created was held in common, without the right of partition or division, until “all” named devisees “marry or die.” This and the effort to hold the property together for the purposes and parties indicated, - is testator’s intent. The provisions, “to insure a home and support for my said daughters' and only son,” and, “I desire all my household furniture and articles to stay in the house until a final settlement,” unquestionably show that no partition was to be made until all marry or die. And the words, “jointly, share and share alike,” so indicate or emphasize the intent that no partition is to be made until the coming into existence of the changed status indicated — marriage or death.
¶8 It follows that these fees in the daughters and son were subject to cross-conditional limitations in fee — during the period terminating on the marriage or death of all — to the surviving brother and sisters. Section second, paragraph 2. Thorington v. Thorington, 111 Ala. 237, 20 So. 407, 36 L. R. A. 385; Id.,82 Ala. 489, 1 So. 716; L. R. A. 1917D, 607 N; 40 Cyc. 1682.
¶9 A summary of the facts shows that four of such children without marriage died; Sadie Mae Miller and Lizzie Louise Watkins are married; and that Birdie survived them all and died. Her heir, legatee, or devisee would take from her, and the executor of the estate of said Birdie Crute is entitled to the same for the benefit of the devisee, John D. Stannard, who was the nephew of Birdie. That nephew had taken nothing by descent from his mother. Her death, prior to the period of division, had subjected her share in fee to the conditional limitation in favor of her brother and sisters. When Birdie died, all had married or died. At that time, the conditional limitations were no longer effective to interfere with or prevent the devise or descent of Birdie’s shares. At the time of her death, she had a clear fee or unconditional estate to devise, and her nephew'takes under her will, if such there was. The extent of the estate so *454 taken by this nephew was Birdie’s original -fee and her accrued interest, estates, or shares from her deceased brother and sisters or their survivors. Subject to liens, she may-have imposed thereon by contract or by way of estoppel. Lombard v. Witbeck, 173 Ill. 396, 51 N. E. 61.
¶10 From this, it should follow that Lizzie and Mae, having married, have no interest in the properties specifically indicated, including the “drug store.”
¶11 The foregoing is the opinion of the writer only.