It is not the rules of construction but the construction of the will, announced by the prevailing opinion, that forbids my concurrence. The will, as corrected by the codicil, is not permitted "to speak for itself" to manifest the plain intention of the testator, but it is subjected to the rules that have emerged from the long struggle between the conflicting theories applied in cases like Ewering v. Ewering, 199 Ky. 450,251 S.W. 645, as contrasted with those accepted in cases like Clay v. Chenault, 108 Ky. 77, 55 S.W. 729. The cases upon that subject, like Swiss soldiers, fight upon both sides, and the simple plan, structure, and purpose of Miller's will is sacrificed in the struggle for supremacy. With these conflicting legal theories there is now no occasion to deal. We put *Page 503 them all aside, and, for the purposes of this case, assume the accuracy and accept the authority of the cases cited in the controlling opinion.

The fallacy into which the court has fallen, as I see it, is the failure to give the proper scope and significance to the documents we are called upon to construe. It is not a case for applying rules of construction to a single ambiguous sentence or clause or paragraph by which a devise or bequest is expressed. We have a document consisting of many provisions, amplified and amended by a later document, which controls to the extent necessary to effectuate the purpose and execute the plans of the testator. These two documents are plain and unambiguous, and rules of construction are not necessary, American, etc., Society v. Tate, 198 Ky. 621, 250 S.W. 483. All the authorities cited by the court agree that it is necessary to ascertain the intention of the testator as expressed in his will and the codicil thereto. The proper method of approach, in construing any writing, is from the standpoint of the author of the document. This is universally acknowledged.

Will Miller had two infant daughters, and owned lands and stocks and bonds, and other personal property. The dominant desire of Miller, it may be safely assumed, was to provide for his children and to protect them against their own improvidence, or that of their husbands, if they grew up and married. When Miller came to prepare his will in 1889, he provided first for the two children to have his land located in the counties of Breckinridge and Hancock, to be equally divided or jointly held. But he surrounded that land with safeguards to protect the daughters from any mistakes of themselves or their husbands. He declared in just so many words (section 2 of the original will): "It being my intention to so devise said real estate that my daughters may have the use, occupancy, and profits thereof, but not to subject the same in any manner to their or their husbands disposal by sale, or incumbrance, or alienation by them by will, or by deed, or in any manner whatsoever." It will be observed that the restriction was on the land, and not on the income or profits thereof. In my opinion that section of the will describes and delineates a life estate in the land about as well as could be done. 21 C. J. 938; 10 Rawle C. L. 661. The remainder interest in the Breckinridge and Hancock county lands was left to be disposed of by other clauses of the will. *Page 504

But Mr. Miller had other lands than those described in the second section of his will, which he desired to devise to his daughters, but which he did not desire to be restrained by the limitations placed upon the lands devised by section 2. He wished them to have different and greater powers respecting it. So, by the third section of his will, he devised to his two children all other real estate owned by him at his death, wheresoever located (except as provided in the second clause), and of whatever nature, "devising to them the said real estateequally" and as general estate. This was a devise of the land itself, and was not limited in any manner to the income or otherwise. He put no restrictions on the title or use, and it seems too plain for argument that by treating the two subjects separately, so as to put the limitations on the one and to omit them from the other, he was granting a fee in one and a life estate in the other. Dickson v. Dickson, 180 Ky. 423,202 S.W. 891, L.R.A. 1918F, 765; Duncan v. Berry's Adm'r, 142 Ky. 178,133 S.W. 1148. If he was devising merely a life estate in each, there was no sense at all in making the separate sections, or the meticulous provisions to show the nature of the grant in the second clause and to protect it from sale or incumbrance. The course pursued makes it clear that clause 3 of the will devised a fee-simple estate in the land covered by it. The prevailing opinion gives no force to this significant circumstance, and thus fails to give effect to the intention of the testator, or to effectuate the purposes of the will.

The fourth section of the will deals with bank stock and certain bonds. They are bequeathed to the two children, but a sale is prohibited and a transfer is forbidden. The restrictions are expressly extended to any husbands the daughters might have, and those stocks and bonds may not be incumbered, pledged as collateral, or put up as security in any form. Then, to make assurance doubly sure, the testator put them in trust, with directions to the trustee to collect the interest and pay it to the children, or their guardians, if they should not be of age. Thus that particular personalty was put in trust for his children, but they were to enjoy the income unreservedly. Plainly that provision of the will created a life estate in that portion of the personal property. 21 C. J. 1038, 1039; 23 Rawle C. L. 491; 17 Rawle C. L. 61; Stallcup v. Cronley's Trustee, 117 Ky. 547, 78 S.W. 441; Sherley v. Sherley, 192 Ky. 122, 232 S.W. 53. The remainder interest *Page 505 was not mentioned then, but it was a proper subject of disposition by later clauses of the will. It must be noted that the limitations and restrictions were on the stocks and bonds, and not on the income, which was given to the girls absolutely.

But Miller had other personal estate, not covered by clause 4, which he disposed of by the fifth section of his will. He bequeathed all his other personalty to his two children equally. It was not affected by the restrictions which he had placed upon the stocks and bonds by section 4. That evidences a plain and unmistakable purpose to give the girls his other personal estate in fee simple. If he meant to give only a life estate in that property, as he had done respecting the stock and bonds described in the fourth section of his will, there was no reason for making it the subject of a separate bequest in such comprehensive terms. The fact that he put his lands in two classifications, and devised it in radically different terms, by distinct provisions of his will, leads inevitably to the conclusion that he meant to create and confer different titles respecting it. That he did the same thing in disposing of his personal estate renders this deliberate and intelligent plan most obvious. It was his primary purpose and studied plan to fix a home for his children beyond the perils of their indiscretion, and, at the same time, to provide an income from the bank stocks and bonds which they could not imperil. But as to all the other estate he left them free to own, use, and dispose of it, as any other owner. All of his care and thought, however, was vain and useless, if the majority opinion is correct, for it construes the subsequent provisions of the will to reduce it all to a life estate, which needed none of the restrictions or limitations devised by the testator, and made them all wholly unnecessary and inappropriate. It puts limitations on the estate that the testator deliberately omitted.

But it is said that clauses 6, 7, and 8 of the will disposed of all the property, real and personal, in certain contingencies, which must be understood to reduce all the prior devises and bequests to mere life estates. In the first place, clauses 6, 7, and 8 were meant to control the devolution of all the property only in the events contemplated by them. They used the words "all," or equivalent words, so as to embrace all of the estate in some contingency that might have arisen. The provisions of those clauses were broad enough to cover all contingencies that might possibly arise, but they were not to be applied in *Page 506 every case, if the circumstances reasonably required other provisions of the will to prevail. The will was written without knowledge as to the time it might take effect, and it had to provide for any possible situation that could come up in the future. If the father and his two children had perished together, after the will and codicil were written, those provisions would have applied to all the estate. Circumstances are conceivable under which all the property may have passed under those clauses. But in the actual circumstances it could not be, for the literal application of the comprehensive words of clauses 6, 7, and 8 would include the income, which the girls consumed, and no one denies that the testator meant for his children to enjoy exclusively the income and profits both from the real and personal estate.

The true meaning of clauses 6, 7, and 8, as applied to the situation that actually arose, is that they control the devolution of the remainder interests that were left undisposed of by the previous provisions of the will, but had no application to the unlimited and unrestricted grants made by the will. These clauses had no reasonable application to clauses 3 and 5 of the original will, if the daughters survived their father. Harvey v. Bell, 118 Ky. 512, 81 S.W. 671; Ireland v. Cooper, 211 Ky. 323, 277 S.W. 483. It cannot be seriously supposed that the testator meant by clauses 6, 7, and 8 to destroy the careful classification, the particular limitations, and the absolute grants he had made in the dominant clauses of his will. It seems reasonable and necessary to construe clauses 6, 7, and 8, as affecting and embracing only the property left for disposition after the previous devises and bequests to his children had taken effect. Thurmond v. Thurmond, 190 Ky. 582, 228 S.W. 29.

Such is my conception and construction of the will as it stood before the codicil was added to it. I agree that the intention of the testator is the test in determining how far the revocation of a will is affected by a codicil, and that a codicil changes the will only so far as is absolutely necessary to effectuate the purposes expressed in the codicil. Norton v. Moren, 206 Ky. 415, 267 S.W. 171; Guthrie v. Guthrie's Ex'r,168 Ky. 805, 183 S.W. 221. But I insist that the prevailing opinion nullifies the codicil, and gives it no effect whatever. The codicil was written 5 1/2 years after the original will. The Weissenger Act (sections 2127-2148, Ky. Stats.) had gone into effect, enlarging the rights of married women respecting *Page 507 their property. The codicil had to do with two parts of the original will. It first changed and modified section 2 of the will, by taking out of it all lands except one farm in Breckinridge county, and freed it from all the restrictions, but expressly leaving them in full force respecting the Breckinridge county farm; "But as to all other real estate which may be held or owned by me at my death, said provisions of said second clause are removed and I devise such to my twodaughters as general estate without prohibition or restrictionsas to sale or incumbrance." I challenge any lawyer to draw a document expressing more certainly the purpose of the testator to devise all his lands (except the Breckinridge county farm, which alone was subject to the restrictions against sale or incumbrance) in fee simple to his two daughters. The removal of the restrictions against sale or incumbrance left the devisees free to sell or incumber, and, if they got only a life estate, they could do neither. To say they took only a life estate utterly annihilates the codicil. The restrictions and limitations were not appropriate to life estates, and were not necessary, if only life estates had been granted.

The next part of the codicil dealt with section 4 of the original will, which put the bank stocks and bonds in trust for the girls, gave them the income, but prohibited any sale, pledge, or incumbrance of the stock or bonds. The codicil revoked that section 4, and in lieu of it gave the two girls an absolute and unlimited title to the property, free of all restrictions and limitations. But the codicil did not refer to clauses 6, 7, and 8 of the original will, and the court holds that those clauses reduced the absolute titles conferred by the codicil to mere life estates. As to the land the codicil conferred a right to sell and incumber without limit, which could not be done if the later clauses reduced the devises to life estates. A life tenant may not sell or incumber the property in which the life estate exists. A life estate itself is subject to sale or incumbrance, but its standing is so precarious that the right to sell or incumber is of small importance and insignificant value.

In so far as clauses 6, 7, and 8 are inconsistent with the codicil, they should yield, because such construction is absolutely necessary to give effect to the codicil. Norton v. Moren, 206 Ky. 415, 267 S.W. 171; Guthrie v. Guthrie's Ex'r,168 Ky. 805, 183 S.W. 221; Deppen's Trustee v. Deppen, 132 Ky. 755, 117 S.W. 352; Harkness *Page 508 v. Lisle, 132 Ky. 767,117 S.W. 264; Bosley v. Wyatt, 14 How. (U.S.) 390, 14 L. Ed. 468. "Where a will and codicil are irreconcilable, the codicil, as the last expression of the testator, must prevail." When the restrictions of clause 4 of the will were removed, it left in the daughters an absolute title to that property, for then they could sell, pledge, or do as they pleased with it. The unlimited and unrestricted right to sell and dispose of property is the great characteristic of absolute ownership. Bouvier's Law Dictionary, vol. 3, p. 2437; McCullough's Adm'r v. Anderson, 90 Ky. 127, 13 S.W. 353, 7 L.R.A. 836.

I think it was proper for the codicil to leave clauses 6, 7, and 8 in the will for application to the remainder interest that was still subject to them after the codicil was added and given effect. It was plainly the purpose of the codicil — indeed, its only excuse for existence — to change the character of the devise of the real estate under clause 2 and the bequest of the bank stock and bonds under clause 4 of the original will. The life estate created in the respective clauses of the original will were enlarged by the codicil into absolute titles, without restriction of any kind. Of course, the will and the codicil are to be regarded as a single instrument, speaking as of the date of the death of testator, for the purpose of determining his intention; but the steps taken by the testator must be traced (28 Rawle C. L. sec. 157, p. 199), and, when the codicil substitutes a fee-simple title for a life estate, it necessarily destroys a subsequent provision disposing of the remainder interests that were no longer the subject of disposition. There was no remainder interest to dispose of after the codicil became effective, except that preserved in the 1,000-acre tract of land. The second and fourth clauses creating remainders were revoked by the codicil. It was the plain intent and express language of the codicil to devise a fee-simple estate in all the real estate, except the 1,000-acre farm, and it was to be the separate estate of the daughters, free of all the restrictions in the original will. The 1,000-acre tract, however, remained subject to the second, sixth, seventh, and eighth clauses of the will as originally prepared.

Thus we have three distinct estates created and conferred by the will: First, the 1,000-acre farm was devised to the two daughters for life as their separate estates, subject to the prohibitions and restrictions of section 2 of the will as originally written. The remainder interest therein was controlled by clauses 6, 7, or 8, as the case *Page 509 might be. Second, the real estate other than the 1,000 acres was devised to the daughters in fee simple, and as general estate. Third, the personal property was bequeathed absolutely to the two daughters equally, for their sole and exclusive use and free from the debts and liabilities of any husbands. By virtue of his will and codicil, an absolute title was taken by the two daughters in the stocks and bonds mentioned in clause 4 of the original will, and therefore Eula Miller Beard had a right to dispose of her portion of that property, and to vest the appellee Herbert M. Beard with title thereto. It is likewise apparent that Eula Miller Beard had a right to dispose by will of the real estate devised to her in fee simple by her father. The 1,000-acre farm, however, is controlled by clause 2 of the original will, and since the death of Eula Miller Beard occurred without issue living, the life estate passed by the sixth clause to the appellant, Mary Lizzie Lightfoot, subject to the same limitations applicable to her original share. The remainder interest will pass according to the seventh or eighth clauses of the will, depending upon whether Mrs. Lightfoot is survived by issue.

I think the circuit court correctly construed the will, and that the judgment should be affirmed.

I am authorized to state that Judges CLAY and LOGAN concur in this opinion.