¶1 dissenting. After a very careful examination of this case, I regret to say that I am unable to concur in the conclusion reached by his Honor, Judge Townsend, acting Associate Justice. The facts of this case are so fully, fairly and clearly set forth in the ■opinion of Judge Townsend as to supersede the necessity for any further statement here; and the only question is whether the testator, Milton B. Vaughan, died without making any •disposition, either by his will or the codicil thereto, of the *164 remainder in a tract of land known as the “Douglass tract,” after the termination of the life estates created therein by the codicil to his will.
¶2 In the first place, the presumption is that a person who undertakes to dispose of his property by will, intends to dispose oí all of his property and the whole of his interest therein, unless there is something in the will manifesting a contrary intent. Here there is nothing whatever in the will, or at least those portions of it which are set out in the “Case” (for there is no full copy of the will set out), which manifests any such contrary intent. On the contrary, the recitals in the codicil plainly show that the testator did not intend to die intestate as to any portion of his property. For those recitals show that the testator had acquired other property, a part of which was real estate — the “Douglass tract” — after he had made his will, which subsequently acquired property, under the law as ft then stood, would not have passed under his will and, therefore, he proceeded to execute a codicil to^ his will, apparently for the express purpose of disposing of such after acquired property. This strengthens the general presumption that the testator intended to dispose of his whole estate; and while not conclusive, as the question still remains whether he has expressed such intention in such a way as will warrant the Court in carrying into effect such intention, yet it affords some aid in construing the language actually used by the testator in his will and codicil. For, after all, the cardinal rule of construction of a will is to seek for the intention of the testator as disclosed by the language which he used. In the first place, I would remark that it seems to* me to be misleading to say that the testator by his will devises to his three sons, William, Wylie and John, “and their children,” certain lands, whereas by the codicil he devises the “Douglass tract” 'to the same three sons, William, Wylie and John, without any mention of their children. For in the second clause of his will the testator uses this language: “I give devise and bequeath to my three sons, William, Wylie and John (with *165 out mentioning their children), my whole estate of lands (designating the several tracts), to be equally divided between them,” and then proceeds to indicate what tract each son shall take, and how and when the division shall be made; and after making some bequests of negroes, then proceeds as follows: “The lands and negroes which I have given or may be allotted or received by my said three sons, William, Wylie and John, I give devise and bequeath to the said William, Wylie and John, each respectively during the term of their respective natural lives, and at their respective deaths to such child or children as they may each respectively leave living at the time of their respective deaths; and in case either o,f my said three sons should die leaving no child or children alive at their respective deaths, then their share of lands and negroes and increase under this title or any other clause of my will, is to return and be equally divided between my surviving son or sons and their legal representatives. I mean, the children of a deceased son to take among them the share of a surviving son.” In the codicil, the testator, after reciting the fact that, since the making of his will, he had acquired other property, to wit: the “Douglass tract” of land and two negroes, Charles and Rush, proceeds in the following language: “Now I give devise and bequeath said tract of land and negroes to my three sons, William, Wylie and John, to be equally divided amongst them, share and share alike, subject to the same limitations and conditions as is expressed and declared in the second clause of my will of the 29th June, 1850; and they are to take precisely the same estate in the Douglass land and negroes, Charles and Rush, as is given to them in the property and estate mentioned in the said second clause of my will of the 29th June, 1850.” It seems to me that the language used in the codicil necessarily implies an intention upon the part of the testator that the “Douglass tract” should, like the other lands mentioned in the second clause of the will, above copied, go to the three sons for life, with remainder in fee to their surviving children. What other possible meaning were the words, “subject *166 to the same limitations,” intended to express ? If the testator, in the codicil, instead of using the words, “subject to the same limitations,” expressed in the second clause of the will, had repeated the words used in the second clause of the will, by which the estate of the sons was declared to be for life only, I suppose it could not be doubted that the effect would be to give the sons an estate for life, with remainder in fee to their surviving children; and it seems to me that the words actually used in the codicil amounted, practically, to a repetition of the language used in the second clause of the will. I have examined the cases cited to sustain a contrary view, and do no't think that they are sufficient for the purpose.
¶3 In my opinion, therefore, the judgment of the Circuit Court should be affirmed; and as the majority of the Court concurs in this conclusion, the judgment of the Circuit Court is affirmed.